- 1 - HC-KAR NC: 2025:KHC:18960 RSA No. 349 of 2025 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 5TH DAY OF JUNE, 2025 BEFORE THE HON'BLE MR JUSTICE H.P.SANDESH REGULAR SECOND APPEAL NO. 349 OF 2025 BETWEEN: 1. SRI. M.S.SOMASHEKAR S/O SHIVALINGAIAH, AGED ABOUT 54 YEARS, R/AT DOOR NO.LIG-955, 6TH STAGE, SHARADADEVINAGARA, CHAMARAJA MOHALLA, MYSURU CITY. …APPELLANT (BY SRI. HEMANTH KUMAR G.M., ADVOCATE) AND: 1. SMT HEMAVATHI W/O K.S.HANUMANTHA NAYAKA, AGED ABOUT 64 YEARS, R/AT DOOR NO.1564/K-2, 2ND CROSS, HOSAKERI, K.R.MOHALLA, MYSURU CITY. …RESPONDENT THIS RSA IS FILED UNDER SECTION 100 OF CPC, AGAINST THE JUDGMENT AND DECREE DATED 10.12.2024 PASSED IN R.A.NO.56/2024 ON THE FILE OF V ADDITIONAL SENIOR CIVIL JUDGE AND JMFC AT MYSURU. DISMISSING THE APPEAL AND CONFIRMING THE JUDGMENT AND DECREE DATED 05.01.2024 PASSED IN O.S.NO.613/2022 ON THE FILE OF C/C XIII ADDITIONAL CIVIL JUDGE AND JMFC, MYSURU. Digitally signed by DEVIKA M Location: HIGH COURT OF KARNATAKA - 2 - HC-KAR NC: 2025:KHC:18960 RSA No. 349 of 2025 THIS APPEAL COMING ON FOR ADMISSION THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: CORAM: HON'BLE MR. JUSTICE H.P.SANDESH ORAL JUDGMENT This matter is listed for admission and I have heard the learned counsel for the appellant. 2. The original owner filed suit in O.S.No.613/2022 before the Trial Court stating that defendant is a tenant under the plaintiff. The plaintiff and defendant have made the rent agreement with regard to the suit schedule property on 30.01.2021 for a period of 11 months and received an amount of Rs.55,000/-/ as security deposit from the defendant and the rent was fixed at Rs.4,000/- per month. The defendant took the suit schedule property for the purpose of running book stores and electrical contractor business. It is also contended that plaintiff has two sons by name Harish Kumar and Rajesh Kumar and Harish Kumar is unemployed. Hence, the plaintiff and her sons were willing to establish a provision stores in the suit schedule property. Moreover, 11 months term of agreement between the plaintiff and defendant is over and also rent was - 3 - HC-KAR NC: 2025:KHC:18960 RSA No. 349 of 2025 not paid from last 4 months and legal notice was issued and notice was duly served and he has given untenable reply. Hence, suit was filed and the same is resisted by filing written statement. He admits that he is a tenant and also contend that period of lease is for 11 months. But, he claims that rent was paid regularly and plaintiff has collected rent every month, but from 4 months, she has not collected the rent. He also contend that the defendant has raised loan for Rs.8 lakhs from the bank for running the said shop. 3. The Trial Court having taken note of the pleadings of plaintiff and defendant, framed the issues and allowed the parties to lead evidence in respect of arrears of rent as well as the claim made by the owner. Having considered the evidence of P.W.1 as well as D.W.1 and documents relied upon by both the defendant and plaintiff, comes to the conclusion that plaintiff has made out the case and answers elicited from the mouth of witness, particularly the evidence of admission of D.W.1 was extracted in paragraph Nos.14 and 16 regarding non-payment of rent is concerned and also taken note in paragraph No.20 that period of tenancy is for a period of 11 - 4 - HC-KAR NC: 2025:KHC:18960 RSA No. 349 of 2025 months. In paragraph No.22, the Trial Court observed with regard to arrears of rent and the same was adjusted out of the advance amount of Rs.55,000/- and also taken note of admission on the part of D.W.1 that plaintiff has two sons and decreed the suit and also directed to pay arrears of rent towards unauthorized occupation till handing over of possession by the defendant to the plaintiff after adjusting the security deposit amount and this order was passed on 05.01.2024. 4. The said judgment was challenged in Regular Appeal No.56/2024. The First Appellate Court also having considering both oral and documentary evidence placed on record and also the grounds urged in the appeal memo, reassessed the material and framed the point for consideration and also taken note of contents of the document and period of lease. The First Appellate Court also taken note of admission on the part of D.W.1 that one of the son of the plaintiff was unemployed and the same is extracted in paragraph No.20 and also taken note of contention of the appellant that he had borrowed amount of Rs.8 lakhs and an observation is made that as the property belongs to plaintiff, the defendant cannot - 5 - HC-KAR NC: 2025:KHC:18960 RSA No. 349 of 2025 create any charge in favour of the suit schedule property. At the most, the bank authorities may have charges over the stocks of the defendant enterprises and that apart, the loan is availed in the year 2010. Already 14 years is lapsed from the date of availing of loan. Even with regard to the hardship pleaded by the appellant is also taken note and concurred with the judgment of the Trial Court and dismissed the appeal. Being aggrieved by the concurrent finding, present second appeal is filed before this Court. 5. The main contention of learned counsel for the appellant is that he had borrowed Rs.8 lakhs for the purpose of business and seeks additional period of five to six years for vacating the property. Learned counsel also contends with regard to non-consideration of Exs.D3 to D6-bank statement reflects the arrears of rent upto date paid by the appellant and prayed this Court to frame substantial question of law with regard to availing of loan and non-consideration of document Exs.D3 to D6. 6. Having heard learned counsel for the appellant and also considering the material on record, admittedly, the - 6 - HC-KAR NC: 2025:KHC:18960 RSA No. 349 of 2025 document is for a period of 11 months and material also discloses that rent was not paid for a period of 4 months and the same was also taken note of and the Trial Court and the First Appellate Court taken note of non-payment of rent and ordered for adjustment out of the advance amount in paragraph No.22 of the judgment of the Trial Court and also taken note of premises is required to establish a business to the son of the original owner and there is an admission that one of the son of the plaintiff i.e., Harish Kumar was unemployed. Having taken note of said fact into consideration, admittedly, lease has ended on 30.01.2021 and now we are in 2025. When such being the material on record, I do not find any error committed by the Trial Court and the First Appellate Court in considering the both oral and documentary evidence placed on record and question of framing any substantive question of law with regard to availing of loan of Rs.8 lakhs by the appellant from the bank to do his business cannot be a substantial question of law to decide the issue in this case and so also the documents of Exs.D3 to D6 i.e., bank statement. Hence, no grounds are made out to admit the appeal and frame substantial question of law. - 7 - HC-KAR NC: 2025:KHC:18960 RSA No. 349 of 2025 7. In view of the discussion made above, I pass the following: ORDER (i) The regular second appeal is dismissed. (ii) Two months time is granted from today to handover vacant possession to the plaintiff and the defendant is directed to pay arrears of rent, if any forthwith and continue to pay future rent for a period of two months without committing any default. Sd/- (H.P.SANDESH) JUDGE ST List No.: 1 Sl No.: 53