IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 5TH DAY OF NOVEMBER, 2019 BEFORE THE HON'BLE MR.JUSTICE N.K.SUDHINDRARAO REGULAR FIRST APPEAL NO.829 OF 2005 BETWEEN:
SRI THIMMEGOWDA @ A. ANNEGOWDA SINCE DEAD BY LR.
SRI A. PRAKASH amended v/c/o dtd.13.12.13 S/O.LATE THIMMEGOWDA @ ANNEGOWDA MAJOR R/AT NIDAGHATTA VILLAGE ATHAGOOR HOBLI MADDUR TALUK MANDYA DISTRICT ...APPELLANT (BY SRI T.N.VISHWANATH, ADVOCATE) AND:
1. THE KARNATAKA INDUSTRIAL AREAS DEVELOPMENT BOARD BY ITS EXECUTIVE MEMBER, II FLOOR RASTHROTHANA PARISHAT BUILDING 14/3, NRUPATHUNGA ROAD BENGALURU-560 002 2. SRI K.S.CHINNA KANNAN S/O.SREERANGAM AGED ABOUT 55 YEARS PROPRIETOR CHITRA GRANITES, PLOT NO.141 PEENYA III PHASE BENGALURU-560 058 3. SRI RAMAKRISHNA RAO MAJOR, PROPRIETOR M/S.KARNATAKA GLASS INDUSTRIES PLOT NO.142, PEENYA III PHASE BENGALURU-560 058 ...RESPONDENTS (BY SRI P.V.CHANDRASHEKAR, ADVOCATE FOR R1; R2 & R3 ARE SERVED AND UNREPRESENTED) THIS RFA IS FILED UNDER SECTION 96 OF CPC., PRAYING TO SET ASIDE THE JUDGMENT AND DECREE DATED 20.02.2004 PASSED IN OS.NO.1300/1994 BY THE COURT OF XIV ADDITIONAL CITY CIVIL JUDGE, BENGALURU.
THIS APPEAL COMING ON FOR HEARING, THIS DAY, THE COURT DELIVERED THE FOLLOWING:
J U D G M E N T This appeal by the plaintiff/appellant is directed against the judgment and decree dated 20.02.2004 passed by the XIV Additional City Civil Judge, Bengaluru in OS.No.1300/1994, wherein the suit came to be dismissed.
2. In order to avoid overlapping and confusion, the parties are addressed in accordance with the ranking and status held by the trial Court.
3. The suit was originally filed by the plaintiff for recovery of possession of the suit schedule property and also mesne profit to the tune of Rs.13,300/- at the rate of Rs.5,000/- per month from 11.12.1993 till the date of filing of the suit and future mesne profits till the date of delivery of possession of the suit schedule property.
4. The case of the plaintiff is that defendant No.1- Karnataka Industrial Areas Development Board (for short ‘KIADB’), Bengaluru, allotted industrial plots bearing Site Nos.141 and 142 in Survey Nos.148, 149 and 151 in the industrial area of Laggere village, Yashwanthapura Hobli, Bangalore North Taluk, in favour of the plaintiff under a registered agreement of lease-cum-sale dated 27.03.1973. Further, in pursuance of the agreement of lease-cum-sale, the possession was delivered to the plaintiff on 21.01.1974 and from the said date, he was in possession of the said sites. It is the claim of the plaintiff that the defendant- KIADB committed breach of conditions in resuming the suit schedule property and subsequently, defendant No.1 allotted site Nos.141 and 142 in favour of defendant Nos.2 and 3 respectively without calling any application and without advertising the allotment. In this connection, the plaintiff approached this Court by filing a writ petition in WP.No.78/1986 and the same was rejected on 28.01.1987. Thereafter, he has filed a writ appeal in WA.No.850/1987 and the same was also dismissed on 04.04.1988. Therefore, he has approached the Civil Court in the suit in OS.No.1300/1994 in respect of the said sites. Defendant Nos.1 and 3 contested the suit by filing separate written statements.
5. The trial Judge was accommodated with the oral evidence of PW1 and documentary evidence of Exs.P1 to P13 on behalf of plaintiff and oral evidence of DW1 and DW2 and documentary evidence of Exs.D1 to D18 on behalf of defendants. On hearing both the sides, the trial Court recorded the findings and dismissed the said suit by the impugned judgment and decree. Aggrieved by the same, the plaintiff is before this Court.
6. Sri T.N. Vishwanath, learned counsel appearing for the plaintiff-appellant would submit that there was no notice or intimation of any proceedings before the possession was taken over from the plaintiff by the defendant No.1-KIADB and in default, he has been penalized without trial. He would further submit that the recovery of possession by the defendant No.1-KIADB is illegal and deserves to be restored.
7. Learned counsel for respondent No.1 is present.
8. Heard and perused the material available on record.
9. The lease agreement vide Ex.P3 is executed on 27.03.1974 between the Karnataka Industrial Areas Development Board (Lessor) and M/s. A. Narayana Swamy and Bros., Shivapura, Maddur Taluk, Mandya District (Lessee). As per said document, the schedule property was leased to the plaintiff on initial deposit of Rs.6,000/-
and the said amount is said to have been paid. The Serial Number of the plots are 141 and 142, situated at Peenya 3rd stage, Industrial Area within the limits of Laggere Hobli, Yeshwantpur Taluk. The yearly lease amount or the premium was fixed at Rs.2,380/- and the lease amount was agreed to be paid in advance. The said lease was subject to conditions as mentioned in the deed from 2A to 2H. As such, violation of any of the conditions entitled for forfeiture of the lease. In this connection, notice was stated to have been issued on 09.01.1979 and the same is marked as Ex.D1 on behalf of defendants.
10. Ex.D1 is stated to be the letter issued in continuation of letter dated 12.12.1977 demanding the plaintiff of his legal and legitimate duty by paying installment. He has neither replied nor complied with the said notice.
11. Clause 4 of the Agreement executed by the plaintiff was reminded if the rent are in arrears for more than 30 days the lease stands terminated. Despite the fact of such condition the plaintiff has not restored to comply. It is submitted that let along with the payment of rent of schedule property is left as paid as on today no improvement. In this case, the learned counsel for the appellant would submit that the amount already paid by him amounting to Rs.26,180/- has gone waste and the defendants are liable to improve. Literally the rent paid by the plaintiff towards security deposit is rent for occupation of the schedule property.
12. It is necessary to clarify that the amount paid towards rent in respect of schedule property over which the plaintiff exercising the rights of possession, as on the date of issue of notice it is clear that he was due in arrears for one year.
13. The monthly rents are more than is stated to be in arrears for over more than one year. The plaintiff has maintained the arrears, which is many times more than the security. The plaintiff is a chronic defaulter. In the circumstances, I find there is no infirmity or illegality in the judgment and decree passed by the learned trial Judge and the same deserve to be confirmed. The appeal is devoid of merits and is liable to be dismissed. Accordingly, it is dismissed.
Sd/- JUDGE LB/SBS*