- 1 - NC: 2025:KHC:9340-DB COMAP No. 198 of 2023 C/W COMAP.CR No. 2 of 2023 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 5TH DAY OF MARCH, 2025 PRESENT THE HON'BLE MR JUSTICE V KAMESWAR RAO AND THE HON'BLE MR JUSTICE T.M.NADAF COMMERCIAL APPEAL NO. 198 OF 2023 C/W COMMERCIAL APPEAL CROSS OBJECTION NO. 2 OF 2023 IN COMAP No. 198/2023: BETWEEN: MRS. SAMEERA KHAN, AGED ABOUT 45 YEARS, W/O MR. ZIA KHAN, 1ST FLOOR, GROUND FLOOR, NO.579, 20TH MAIN ROAD, OPPOSITE BETHANY SCHOOL, KORAMANGALA, 8TH BLOCK, BANGALORE-560 095. …APPELLANT (BY SRI. SHIVA SRINIVASAN, ADVOCATE FOR SRI. ADITYA .D, ADVOCATE) AND: 1. M/S PHILIP AND CHACKO, A FIRM REGISTERED UNDER THE INDIAN PARTNERSHIP ACT 1932, HAVING ITS OFFICE AT NO.579, 20TH MAIN ROAD, OPPOSITE BETHANY SCHOOL, KORAMANGALA, 8TH BLOCK, BANGALORE, REPRESENTED BY ITS PARTNER Digitally signed by PRAJWAL A Location: High Court of Karnataka - 2 - NC: 2025:KHC:9340-DB COMAP No. 198 of 2023 C/W COMAP.CR No. 2 of 2023 MRS. MARY PHILIP. 2. MRS MARY PHILIP, AGED ABOUT 86 YEARS, W/O LATE K E PHILIP RESIDENT OF GROUND FLOOR, NO.579, 20TH MAIN ROAD, OPPOSITE BETHANY SCHOOL, KORAMANGALA, 8TH BLOCK, BANGALORE-560 095. …RESPONDENTS (BY SMT. LAKSHMI MENON, ADVOCATE FOR C/R1 AND R2) THIS COMMERCIAL APPEAL IS FILED UNDER SECTION 13(1A) OF THE COMMERCIAL COURTS ACT, 2015, R/W ORDER XLI RULE 1 AND 2 R/W SECTION 96 OF THE CPC (COMMERCIAL COURT ACT AMENDMENT TO CPC, PRAYING TO SET ASIDE THE IMPUGNED JUDGMENT AND DECREE DATED 06.04.2023, PASSED BY THE HON’BLE LXXXIV ADDITIONAL CITY CIVIL AND SESSIONS JUDGE (COMMERCIAL DISPUTES), BANGALORE (CCH-85) IN COM.O.S.NO.953/2021 AND CONSEQUENTLY TO DISMISS THE SUIT FILED BY THE RESPONDENTS AND ETC. IN COMAP.CR NO. 2/2023 BETWEEN: 1. M/S. PHILIP AND CHACKO, A REGISTERED PARTNERSHIP, HAVING ITS OFFICES AT: NO. 579, 20TH MAIN ROAD, OPPOSITE BETHANY SCHOOL, KORMANGALA, 8TH BLOCK, BENGALURU-560 095, REPRESENTED BY ITS MANAGING PARTNER, MRS. MARY PHILIP. 2. MRS. MARY PHILIP, AGED ABOUT 89 YEARS, WIFE OF LATE MR. K.E. PHILIP, RESIDING AT: GROUND FLOOR, - 3 - NC: 2025:KHC:9340-DB COMAP No. 198 of 2023 C/W COMAP.CR No. 2 of 2023 NO. 579, 20TH MAIN ROAD, OPPOSITE BETHANY SCHOOL, KKORMANGALA, 8TH BLOCK, BENGALURU-560 095. ...CROSS-OBJECTORS (BY SMT. LAKSHMI MENON, ADVOCATE) AND: MRS. SAMEERA KHAN, (NOW CLAIMS TO BE ALSO KNOWN AS MRS. SAMEER ZIA KHAN), SOLE PROPRIETOR OF LIPS-STITCH, BEAUTY SALON AND BOUTIQUE, FIRST FLOOR, NO. 579, 20TH MAIN ROAD, OPPOSITE BETHANY SCHOOL, KORAMANGALA, 8TH BLOCK, BENGALURU-560 095. ...RESPONDENT (BY SRI. SHIVA SRINIVASAN, ADVOCATE FOR SRI. ADITYA .D, ADVOCATE) THIS COMMERCIAL APPEAL CROSS OBJECTION IS FILED UNDER ORDER XLI RULE 22, CODE OF CIVIL PROCEDURE 1908 READ WITH SECTION 13 OF THE COMMERCIAL COURTS ACT, 2015, PRAYING TO SET ASIDE THE IMPUGNED JUDGMENT AND DECREE PASSED IN COM.O.S.NO.953/2021 DATED 06.04.2023 PASSED BY THE HON’BLE LXXXIV ADDITIONAL CITY CIVIL AND SESSIONS JUDGE (COMMERCIAL COURT), BENGALURU TO THE EXTENT THE JUDGMENT AND DECREE PROVIDES FOR GRANT OF MONTH WITHOUT DIRECTING FOR AN INQUITY IN TERMS OF ORDER XX RULE 12, CPC AND ETC. THESE APPEALS COMING ON FOR ADMISSION THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: CORAM: HON'BLE MR JUSTICE V KAMESWAR RAO and HON'BLE MR JUSTICE T.M.NADAF - 4 - NC: 2025:KHC:9340-DB COMAP No. 198 of 2023 C/W COMAP.CR No. 2 of 2023 ORAL JUDGMENT (PER: HON'BLE MR JUSTICE V KAMESWAR RAO) These two appeals arise from the common judgment and decree dated 06.04.2023 in Com.O.S.No.953/2021. COMAP No.198/2023, has been filed by the defendant before the Trial Court and whereas COMAP.CR.No.2/2023 has been filed by the plaintiffs before the Trial Court. 2. Issue Notice to the respondents in both COMAP No. 198 of 2023 and COMAP.CR No.2 of 2023 3. Smt.Lakshmi Menon, Advocate accepts notice for the Caveators/respondents in COMAP No.198 of 2023. Sri.Shiva Srinivasan, Advocate for Sri.Aditya D, Advocate accepts notice for the respondent in COMAP.CR No.2 of 2023. 4. With the consent of the parties, the appeals have been finally heard. 5. The status of the parties shall be referred to as the appellant namely, Mrs.Sameera Khan and the respondents, namely M/s.Philip and Chacko and Mrs.Mary Philip. 6. The 1st respondent is a registered partnership firm represented through its partner, the 2nd respondent who owns - 5 - NC: 2025:KHC:9340-DB COMAP No. 198 of 2023 C/W COMAP.CR No. 2 of 2023 the building bearing No.579, 8th Block, Koramangala measuring 3389 Sq.ft. in all, including a garage and out house. The appellant was inducted as a tenant on the first floor in the year 2005, on month to month tenancy. The appellant was running a beauty saloon and boutique by name Lip-Stitch; and the rent was enhanced by 5% every year. She was permitted to use the furniture in the leased premises on monthly rent; she was paying the rent, water and electricity consumption charges. During March 2020, she stopped paying the rent. On 14.08.2020, after the receipt of notice dated 15.07.2020, demanding vacant possession, arrears of rent and miscellaneous charges amounting to Rs.2,05,132.5/-, she broke open the lock of the main gate. She deposited an amount of Rs.44,585/- in the bank account of 2nd respondent without information. It was the case of the respondents that, the cheque for Rs.44,585/- was sent to the appellant along with notice dated 02.09.2020. In her reply dated 04.11.2020, the appellant has denied the title of the respondents to the property. It is the case of the respondents that the appellant causes nuisance to the 2nd respondent by parking the car leaving the property open to strangers and street dogs; and is - 6 - NC: 2025:KHC:9340-DB COMAP No. 198 of 2023 C/W COMAP.CR No. 2 of 2023 liable to pay mesne profits at the rate of Rs.60,000/- per month including the last paid rent which was Rs.45,585/- p.m., furniture rent, water and electricity consumption charges with effect from 01.03.2020. The appellant has filed the written statement. 7. Based on the pleadings of the parties, the Trail Court has framed the following issues for its consideration: “1. Whether the plaintiffs prove that the suit property was brought into the 1st plaintiff partnership firm by way of capital in the year 1985 and continued to be the firm's property even after Mr.P.M.Chacko's retirement in the year 1995? 2. Whether the plaintiffs prove the existence of jural relationship of landlord and tenant between the 1st plaintiff firm and the defendant? 3. Whether the defendant proves that the plaintiffs are only the rent collectors on behalf of Mr.P.M.Chacko? 4. Whether the defendant proves that the 2nd plaintiff executed lease deed on 16.01.2003 misrepresenting to be the owner of the suit property and created/fabricated documents to maintain this suit? 5. Whether the defendant proves that the plaintiffs have no locus standi to maintain the suit as contended in para No.7 of the additional written statement? 6. Whether the plaintiffs are entitled for decree of ejectment, permanent injunction and damages/mesne profits, as prayed? 7. What Order or Decree?” - 7 - NC: 2025:KHC:9340-DB COMAP No. 198 of 2023 C/W COMAP.CR No. 2 of 2023 8. The suit was decreed by the Trial Court on the following terms: “ORDER Suit of the plaintiff is decreed in part with cost and notice charges of Rs.15,000/-. The plaintiffs are entitled to decree of ejectment and mesne profits. The defendant shall quit, vacate and handover vacant possession of the suit property in favour of the plaintiffs within 60 days from this day, failing which the plaintiffs can eject her and recover possession by due process of law. Further, the defendant is hereby directed to pay mesne profits of Rs.45,585/- p.m. from July 2020 till the date of delivery of vacant possession of the suit property in favour of the plaintiffs. Draw decree accordingly. Issue copy of the judgment to the parties through email as provided u/o XX Rule 1 of CPC if email ID is furnished.” 9. The appeal has been filed by the appellant primarily challenging the decree to the extent, the appellant has been directed to hand over the vacant possession of the suit scheduled property and also to pay mesne profits, as have been determined from July 2020, till the date of delivery of the vacant possession. - 8 - NC: 2025:KHC:9340-DB COMAP No. 198 of 2023 C/W COMAP.CR No. 2 of 2023 10. At the outset, we have been informed that the appellant has vacated and handed over the vacant possession of the suit scheduled property on 22.07.2023 11. The submission of the learned counsel for appellant is primarily that, though she has vacated the suit scheduled property, she has contested the jural relationship between the appellant and the respondents, inasmuch as the respondents are not the landlords of the property in question. He states that, such a finding shall have a bearing on the other issues including the mesne profits. 12. We note, the findings of the Trial Court on this issue are in paragraph No.45 of the impugned judgment and decree, which is reproduced as under: “45. Thus, having entered into lease agreement with the only two partners of the firms Pw1 and her husband in 2003, it is not open for the defendant to contest the firm’s title to the property More so, when Dw1 made no efforts to ascertain if Pw1’s husband Mr.K.E.Philip had title to the property or not. She has not even chosen to enter into any lease agreement with Mr.P.M.Chacko or to seek clarification from him in writing as to in what capacity Pw1 and her husband would collect rent from her.” 13. We agree with the said conclusion arrived at by the Trial Court. In fact, during the course of the hearing, our - 9 - NC: 2025:KHC:9340-DB COMAP No. 198 of 2023 C/W COMAP.CR No. 2 of 2023 attention has been drawn by the learned counsel for the respondents to Paragraph No.28 of the appeal No.198/2023, wherein the appellant herself has stated as under: “28. That the Hon’ble Trial Court has failed to note that the Respondents had only sought for Enquiry into mesne profits and in the Plaint had not quantified the mesne profits and also during the proceeding had failed to adduce any evidence in that regard and under these circumstance, the impugned Judgment and Decree of the Hon’ble Trial Court is opposed to Civil Jurisprudence and also spirit of Order XX Rule 12 of the Code of Civil Procedure which contemplates enquiry for award of mesne profits.” 14. In substance, the case of the appellant in the aforesaid paragraph is to contest the quantification of the mesne profits by the Trial Court at Rs.45,585/- per month. In other words, the same could not have been granted. 15. The submission of the learned counsel for the respondents in COMAP CR.No.2/2023 is that, despite the issue of damages/mesne profits prayed for by the respondents herein over and above Rs.45,585/- per month was framed the enquiry has not been directed by the Trial Court. In this regard, she has drawn our attention to paragraph Nos.23 and 24 of the appeal. - 10 - NC: 2025:KHC:9340-DB COMAP No. 198 of 2023 C/W COMAP.CR No. 2 of 2023 16. She would submit that, despite a prayer for the grant of mesne profits at Rs.60,000/- per month, the same stands rejected by the Trial Court as it granted the mesne profits at Rs.45,585/-, which is clearly untenable as the same is without any inquiry, more so, it is the case of respondents that, the property shall fetch Rs.60,000/- per month. 17. We agree with the aforesaid submission of the learned counsel for the respondents, more so in view of the findings in paragraph Nos.53 and 54 of the impugned judgment decree, which reads as under: “53. Pw1 admits that the plaintiffs have not claimed arrears of rent in this suit. The defendant admittedly has continued to be in possession of the leased premises even after receiving Ex.D1 terminating the lease. Therefore she is liable to pay mesne profits for being in unlawful possession of the leased premises. The plaintiffs have claimed Rs.60,000/-p.m./ as damages/mesne profits, but no acceptable evidence is adduced to establish that it is based on the prevailing market rent in that area. 54. In fact, during cross examination Pw1 has stated in categorical terms that she does not know the prevailing rent in Koramangala. Under these circumstances, I am of the opinion that the plaintiffs are entitled for damages/mesne profits of Rs.45,585/-p.m. being the last paid rent and not Rs.60,000/- p.m. as claimed. The defendant shall pay the same from July 2020 till the date of delivery of vacant possession of the leased premises in favour of the plaintiffs.” - 11 - NC: 2025:KHC:9340-DB COMAP No. 198 of 2023 C/W COMAP.CR No. 2 of 2023 18. The aforesaid paragraphs would reveal that the Trial Court has rejected the claim of mesne profits at the rate of Rs.60,000/- per month. Surely, such a plea should have been decided after following a due inquiry and permitting the parties to adduce evidence in support of their claim. On the other hand, the learned counsel for the appellant submits that, had such an inquiry been carried out, the mesne profits even at the rate of 45,585/- would not have been payable by the appellant to the respondents. 19. Noting the submissions made, we deem it appropriate to set aside the judgment and decree, insofar as determination of mesne profits of Rs.45,585/- per month and remand the matter to the Trial Court for a fresh determination on mesne profits. At this stage, learned counsel for the respondents states that, the respondents were also entitled to interest on the amount of mesne profits granted by the Trial Court in the impugned Judgment. 20. Suffice to state that, since we are relegating the parties to the final decree proceedings to enable the Trial Court through the process of an inquiry determine issue No.6 afresh, by calling upon the parties herein to adduce evidence in that - 12 - NC: 2025:KHC:9340-DB COMAP No. 198 of 2023 C/W COMAP.CR No. 2 of 2023 regard. We say nothing on the plea of interest, but make it clear if any amount is payable over and above Rs.45,585/-, the Trial Court shall decide the grant of interest (if any) on the said amount in accordance with law. The appeal is disposed of. Let decree sheet be prepared. 22. Pending IAs if any, stands disposed of. Sd/- (V KAMESWAR RAO) JUDGE Sd/- (T.M.NADAF) JUDGE SMC List No.: 1 Sl No.: 18