IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 29TH DAY OF JULY, 2019 BEFORE THE HON’BLE MR. JUSTICE SREENIVAS HARISH KUMAR MISCELLANEOUS FIRST APPEAL NO.351 OF 2019 (CPC) C/W MFA No.352 OF 2019(CPC) & MFA No.353 OF 2019(CPC) In MFA No.351/2019 BETWEEN Sri. Venkatesh Babu, S/o. Basavarajaiah, Aged about 43 years, Proprietor of M/s. Vigneshwara Enterprises Office No.24, Pushpanjali, Achaiah Chetty Layout, 1st Cross, R.M.V.Extension, Sadashivanagar, Bengaluru-560080.
(By Sri.Sunil Kumar H, Advocate) AND 1. M/s Brigade Hotel Private Limited A Company incorporated and Registered under the Company Act 1956, Represented by its Director 2. Kamalesh Hakumatrai Thakur, S/o. Hakumatrai Deoomal Thakur, Aged about 60 years, Having their Office at …Appellant No.51/53, 2nd Floor, Brigade Road, Bengaluru-560001.
…Respondents (By Sri. Sampath Kumar B.K., Advocate, for C/R1) This MFA is filed under Order 43 Rule 1(r) of CPC against the order dated 29.11.2018, passed on I.A.No.1 in O.S.No.3836/2018 on the file of the XIX Additional City Civil and Sessions Judge, Bengaluru (CCH-18), rejecting the I.A.No.1 filed under Order 39 Rule 1 & 2 of CPC.
In MFA No.352/2019 BETWEEN Sri. Venkatesh Babu, S/o. Basavarajaiah, Aged about 43 years, Proprietor of M/s. Vigneshwara Enterprises Office No.24, Pushpanjali, Achaiah Chetty Layout, 1st Cross, R.M.V.Extension, Sadashivanagar, Bengaluru-560080.
(By Sri.Sunil Kumar H, Advocate) AND 1. M/s Bangalore Investment A Partnership Firm, Represented by its Partner 2. Madhu Kamalesh Thakur, S/o. Kamalesh Hakumatrai Thakur, Aged about 60 years, Having their Office at No.51/53, 2nd Floor, …Appellant Brigade Road, Bengaluru-560001.
(By Sri.Sampath Kumar B.K, Advocate …Respondents This MFA is filed under Order 43 Rule 1(r) of CPC, against the order dated 05.12.2018, passed on I.A.No.1 in O.S.No.3826/2018 on the file of the XIX Additional City Civil and Sessions Judge, Bengaluru (CCH-18), rejecting the I.A.No.1 filed under Order 39 Rule 1 & 2 of CPC.
In MFA No.353/2019 BETWEEN Sri. Venkatesh Babu, S/o. Basavarajaiah, Aged about 43 years, Proprietor of M/s. Vigneshwara Enterprises Office No.24, Pushpanjali, Achaiah Chetty Layout, 1st Cross, R.M.V.Extension, Sadashivanagar, Bengaluru-560080.
(By Sri.Sunil Kumar H., Advocate) AND 1. M/s Garden City Construction A Partnership Firm, Represented by its partner 2. Kamalesh Hakumatrai Thakur, S/o. Hakumatrai Deoomal Thakur, Aged about 59 years, Having their Office at No.51/53, 2nd Floor, Brigade Road, Bengaluru-560001.
…Appellant …Respondents (By Sri.Sampath Kumar B.K., Advocate) This MFA is filed under Order 43 Rule 1(r) of CPC against the order dated 29.11.2018, passed on I.A.No.1 in O.S.No.3844/2018 on the file of the XIX Additional City Civil and Sessions Judge, Bengaluru (CCH-18), rejecting the I.A.No.1 filed under Order 39 Rule 1 & 2 of CPC.
These appeals coming on for admission, this day, the Court delivered the following :
JUDGMENT All these appeals are disposed of by a common order. In all these three appeals, the appellant is the same person. He brought three suits O.S.3836/2018, O.S.3826/2018 and O.S.3844/2018 against his landlords for permanent injunction. He stated that the defendants tried to interfere with his possession in respect of the premises which he had taken on lease from them through a lease agreement dated 6.11.2015. He stated that he was running a bar and restaurant in the tenanted premises. By virtue of the order passed by the Hon’ble Supreme Court, the Government cancelled the permission granted to him to run a bar and restaurant and therefore he stopped the business. Somewhere in the month of May 2018 when he took his workers for cleaning the premises, the defendants with their goondas restrained him from cleaning the premises. He also alleged that some third parties attempted illegally to trespass into the premises. Hence, he brought the suit and sought for an order of temporary injunction pending disposal of the suit.
2. The defendants contended that the cheques issued by the plaintiff towards payment of arrears of rent were all dishonored when they presented them before the bank for encashment for want of sufficient funds in his bank account. The plaintiff was running a live band show in the tenanted premises. They enquired with the plaintiff about it and later on issued legal notice to the plaintiff on 24.5.2017 for non- compliance and violation of the terms of the lease. One more notice was issued on 20.7.2017 by terminating the tenancy. Subsequently the plaintiff surrendered the possession of the tenanted premises to them. Therefore, on the date of the suit the plaintiff was not in possession of the premises.
3. The learned trial Judge after assessing the materials placed before him came to conclusion that on the date of suit the plaintiff was not in possession of the tenanted premises. A xerox copy of the letter addressed to Vigneshwara Enterprises for which the plaintiff is the proprietor discloses that the plaintiff had surrendered the premises to the defendants. Therefore, the trial court rejected the application for temporary injunction.
4. Heard the learned counsel for the appellant as also the respondents.
5. For claiming an order of temporary injunction the plaintiff must be in possession of the premises on the date of suit. If the materials placed before the court are sufficient to doubt the possession of the plaintiff, an order of injunction cannot be granted. In this case, on perusal of the impugned order as well as the materials, it becomes clear that the plaintiff had surrendered the possession of the premises much before the filing of the suit. The finding of the trial court in this regard does not suffer from any infirmity. It is also another fact to be considered here, the cheques issued by the plaintiff to the defendant towards arrears of rent stood dishonoured. Therefore, the plaintiff is at fault being a tenant. He is also facing criminal action for dishonour of cheques. Though the learned counsel for the appellant/plaintiff makes an attempt to show that the plaintiff held the possession of the premises on the date of suit by referring to some of the bank statements, GST certificates, photographs and electricity bills, I do not think that they prima facie establish the plaintiff’s possession in view of letter of surrender which the defendant has produced. Therefore, there are no grounds to interfere with the order of the trial court which discloses exercise of discretion properly. Hence, all these appeals are dismissed.
Sd/- JUDGE ckl