- 1 - NC: 2025:KHC:12338 RFA No. 1155 of 2022 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 24TH DAY OF MARCH, 2025 BEFORE THE HON'BLE MR JUSTICE S.R.KRISHNA KUMAR REGULAR FIRST APPEAL NO. 1155 OF 2022 (INJ) BETWEEN: SMT G N SHYLA, W/O BASAVARAJ, AGED ABOUT 59 YEARS, R/AT NO.33, NEW NO 10/1, 6TH CROSS, LASKHMIPURA ROAD, ABBIGERE, BENGALURU 560090. APPELLANT (BY SRI. SHANKAR G.,ADVOCATE) AND: SRI SURENDRA KUMAR B, S/O BYLAPPA, AGED ABOUT 51 YEARS, PROP: M/S SREE SUMUKHA ENTERPIRSES, NEW NO 10/1, 6TH CROSS, LAKSHMIPURA ROAD, ABBIGERE, BENGALURU 560090. RESPONDENT (V/O DTD 03.03.2025, SERVICE OF NOTICE TO SOLE RESPONDENT IS HELD SUFFICIENT BY WAY OF PAPER PUBLICATION) THIS RFA IS FILED UNDER SEC. 96 OF CPC., AGAINST THE JUDGMENT AND DECREE DATED 04.12.2021 PASSED IN OS.NO.2691/2015 ON THE FILE OF THE XIV ADDITIONAL CITY CIVIL AND SESSIONS JUDGE HOLDING C/C OF XXXVIII ADDITIONAL CITY CIVIL AND SESSIONS JUDGE, BANGALORE, CITY, PARTLY DECREEING THE SUIT FOR INJUNCTION AND THIS APPEAL IS PREFERRED IN SO FAR AS PARTLY DECREEING THE COUNTER CLAIM OF APPELLANT HEREIN AND ETC,. Digitally signed by CHANDANA B M Location: High Court of Karnataka - 2 - NC: 2025:KHC:12338 RFA No. 1155 of 2022 THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: CORAM: HON'BLE MR JUSTICE S.R.KRISHNA KUMAR ORAL JUDGMENT This appeal by the appellant - defendant arises out of the impugned judgment and decree dated 04.12.2021 passed in O.S.No.2691/2015 by the XIV Addl.City Civil and Sessions Judge, Bangalore. 2. A perusal of the material on record will indicate that the aforesaid suit was filed by the respondent – plaintiff against the appellant – defendant for permanent injunction restraining the appellant – defendant from interfering with his possession and enjoyment of the suit schedule immovable property, for payment of Rs.1,00,100/- towards past damages / lost and Rs.30,000/- per month for future damages / loss and for other reliefs. The said suit was contested by the appellant – defendant, who put forth a counter claim directing eviction of the respondent – plaintiff from the suit schedule property, for recovery of arrears of rent of Rs.2,38,000/- and for other reliefs. The trial court partly decreed the suit as well as the counter claim, thereby directing the appellant - 3 - NC: 2025:KHC:12338 RFA No. 1155 of 2022 – defendant not to dispossess the respondent – plaintiff from the suit schedule property and also directing the respondent – plaintiff to pay arrears of rent to the appellant – defendant. The remaining reliefs sought for by both parties was rejected by the trial court. In this context, it is pertinent to note that the respondent – plaintiff has not preferred any appeal against the impugned judgment and decree upholding the counter claim of the appellant – defendant or rejection of the remaining claims of the respondent – plaintiff and the present appeal filed by the appellant – defendant is restricted / limited to the rejection of his counter claim insofar as it related to eviction of the respondent – plaintiff from the suit schedule property. 3. A perusal of the pleadings of the parties will indicate that it is an undisputed fact that the plaintiff became a tenant under the defendant vide unregistered Rent agreement dated 21.03.2013 and there were various allegations made by the plaintiff towards his claim in the suit filed by him. As stated supra, the defendant not only contested the suit interalia disputing and denying the claim of the plaintiff but also put forth a counter claim for eviction, recovery - 4 - NC: 2025:KHC:12338 RFA No. 1155 of 2022 of arrears of rent and other reliefs. Based on the pleadings of the parties, the trial court framed the following issues:- “ 1. Whether the plaintiff proves that he is in peaceful possession and enjoyment of the suit schedule premises? 2. Whether the plaintiff proves that the Defendant has illegally locked the suit schedule premises? 3. Whether the Plaintiff proves that he has suffered loss of Rs. 1, 00,100/- from November 2014 till filing of the suit due to the lock of suit schedule premises by the Defendant? 4. Whether the Defendant proves that the plaintiff is liable to pay Rs. 2,38,800/- as mentioned in para No.13 of the counterclaim? 5. Whether the Defendant is entitled for vacant possession of the suit schedule premises? 6. Whether the plaintiff is entitled for the reliefs claimed in the plaint? 7. Whether the Defendant is entitled for the reliefs as mentioned in para 17(b) to (g) of the counter- claim? 8. What order or decree?” 4. The plaintiff examined himself as PW-1 and documentary evidence at Exs.P1 to P11 were got marked, while the defendant examined herself as DW-1 and documentary evidence at Ex.D1 was marked on her behalf. The trial court answered issue No.1 in favour of the plaintiff thereby holding that he was in possession and - 5 - NC: 2025:KHC:12338 RFA No. 1155 of 2022 enjoyment of the suit schedule property. However, issue Nos.2 and 3 were answered against the plaintiff by the trial court, which came to the conclusion that he had not established that the defendant had illegally locked the suit schedule property or that she was liable to compensate the plaintiff for the alleged loss suffered by him due to keeping the suit schedule property under lock and key. As stated supra, no appeal has been preferred by the plaintiff and the findings on issue Nos. 2 and 3 have attained finality and become conclusive and binding upon the plaintiff. 5. The trial court answered issue No.4 in favour of the defendant thereby upholding the counter claim for arrears of rent by directing the plaintiff to pay a sum of Rs.2,38,800/- in favour of the defendant and even this finding on issue No.4 has attained finality and become conclusive and binding upon the plaintiff, who has not preferred any appeal. However, the counter claim for eviction sought for by the appellant – defendant having been rejected by the trial court, she is before this Court by way of the present appeal, which is restricted / limited to the impugned judgment and decree insofar as it relates to decreeing the suit of the respondent – plaintiff and rejection of the counter claim for - 6 - NC: 2025:KHC:12338 RFA No. 1155 of 2022 eviction of the respondent – plaintiff put forth by the appellant – defendant. 6. Heard learned counsel for the appellant and perused the material on record. The respondent having been served with the notice of this appeal, he has chosen to remain unrepresented and not contested the appeal. 7. The only point that arises for consideration in the present appeal, is as to whether the trial court was justified in passing a decree for permanent injunction in favour of the respondent – plaintiff and rejecting the counter claim for eviction sought for by the appellant – defendant. 8. A perusal of the material on record will indicate that it is an undisputed fact that the plaintiff was a tenant under the defendant in relation to the suit schedule property. The trial court while dealing with issue No.4 came to the conclusion that the plaintiff is due in a sum of Rs.2,38,800/- towards arrears of rent since he had committed default in payment of rent to the defendant from 19.06.2013 onwards by holding as under:- - 7 - NC: 2025:KHC:12338 RFA No. 1155 of 2022 “ 10. These three Issues are inter- relate and connected to each other, hence in order to avoid repetition, I have W them jointly for discussion. 11. It is the case of the plaintiff that he is in occupation of the suit schedule premises as tenant under Defendant and started business in the suit schedule premises and he has pe monthly rent to the Defendant till December, 2013 and paid rent of Rs.25,000/- in the month of January including partly rent of Rs. 10,000/- in respect of Feb 2015, thereafter due to unhealthy competition in the business and also recession, he was unable to pay the rent Defendant from March 2015 and April-2014. On 26.6.2014 has paid Rs. 15,000/- rent for the month of May-2014 and later he has paid rent upto September-2014 and thus in all the Plaintiff has paid Rs.89,000/- towards arrears of rent. That on 25.10.2014 the Assistant Executive Engineer, BESCOM issued notice to the Defendant demanding Rs.1,778/- towards arrears of electricity and a sum of Rs.60,464.37 towards manual and other charges. Therefore due to nonpayment of the above said amount by the Defendant, the BESCOM authorities have disconnected power supply to the suit schedule premises and till today the same has not been restored, so the Plaintiff is unable to run his business. The Plaintiff has paid the consumed electricity charges upto November-2014 to run his factory. Such being the case, all of a sudden, in the month of November-2014, the Defendant has locked the suit schedule premises without any reason and without informing the Plaintiff. When the Plaintiff questioned the same, she has given vague reply and pressurized the Plaintiff to vacate the suit schedule premises without any enquiry. The act - 8 - NC: 2025:KHC:12338 RFA No. 1155 of 2022 Defendant is illegal, due to which the Plaintiff had suffered loss of Rs.1,00,100/- from the month of November-2014 till filing of the suit. These facts have been denied by the Defendant in her written statement and categorically contended that the Plaintiff is a chronic defaulter in payment of rent, it is false to say that he has paid rent till September 2014, on the contrary he has paid rent till September 2013, he is due to pay 19 months arrears of rent in a sum of Rs.2,66,000/- and 19 months water charges at the rate of Rs.200/- per month amounting to Rs.3800/-. It is further contended that the Plaintiff has received hand loan of s.1,00,000/- from the Defendant on 19.6.2013, the same is liable to be repaid with interest at 2% p.m from 19.6.2013 to 19.4.2015 which comes to Rs.44,000/-. Therefore the Plaint able to pay total sum of Rs.4,13,800/- out of the same of Rs.1,75,000 advance amount paid by him is deducted still he is required to pay an amount of Rs.2,38,800/-. 12. As already stated above, to prove the case of the plaintiff, Plaintiff he himself got examined as PWI and got mark Ex.P1 to P11. The PW1, in his affidavit filed in the form examination-in-chief, has re-iterated the plaint averments. In his cross-examination, he has deposed as under:- “ It is true entered into an rental agreement the defendant with on 21.03.2013. It is true it is the agreement to pay deposit amount Rs. 1,75,000/- fixing monthly rent of Rs.14,000/-. It is true it is the agreement to pay monthly rent within 10th of every calendar month. It is true the rental agreement fixed for three years from 21.3.2013 to 21.3.2016. It is true there is a separate electricity meter fixed in the suit property. It is also agreed to pay the electricity bill charges for every month. It is also orally agreed by me to pay amount of Rs.200/- as a water charges to the defendant. It was the term in rental agreement to retain the security deposit amount paid for - 9 - NC: 2025:KHC:12338 RFA No. 1155 of 2022 deducting the arrears of rent, electricity bill charges or water or damages if any caused. It is true there was no any term to pay the interest on security deposit amount. There are no other documents except Ex.P1 to P5 towards payment of the rent to the defendant. I use to pay monthly rent as per the term of rental agreement on or before 10th of every month. It is false to suggest that I have not paid monthly rent fixed as per the schedule of rental agreement. have not paid any rental amount except amount of Rs.89,000/- as a rent paid to the defendant." 13. On perusal of the above evidence of PW1, it is quite clear that though the Plaintiff categorically tried to contend that he is regular in payment of monthly rent in respect of suit schedule premises, but he himself in an unequivocally terms admitted that except Rs.89,000/-, he has not paid any amount towards rent of the suit schedule premises. Admittedly the Plaintiff had entered into rental Agreement on 21.3.2013 and the rent commences from said date at the rate of Rs.14,000/- per month. 14. The Defendant in her written statement as well as in the cross-examination categorically denied the contention the Plaintiff that he was regular in payment of rent, contrary she has contended that the Plaintiff is defaulter in payment of rent and he has not paid when it fallen due to pay, the Plaintiff has paid only Rs.89,000/- towards arrears of rent, except said amount he has not paid anything, so under these circumstances the amount of Rs.89,000/- paid by the Plaintiff from 21.3.2013 to the date is taken into consideration, the suit is filed on 20.3.2015, approximately the arrears of rents works out i.e., 24 months x 14,000 3,36,000/- after deducting Rs.89,000/-amount paid the balance remains payable towards arrears of rent comes to Rs.2,47,000/-. The Plaintiff in support of his contention overall relied on Ex.P1 to P5 - 10 - NC: 2025:KHC:12338 RFA No. 1155 of 2022 documents, total of all these rental receipts comes to Rs.1,57,400/-. Even considering all these documents it appears that they are also not helpful to establish the contention of the Plaintiff that he is regular in payment of rent as per the terms of the rental Agreement entered into between himself and the Defendant, the dates available on these documents disclosing long gap in payment of amount, therefore the contention of the Defendant that the Plaintiff is a chronic defaulter in of rent pears to be reasonable, Further the Plaintiff himself in the plaint averments contended that due to unhealthy competition as well as rescission, he was unable to pay monthly rent to the Defendant. Having stating so, he has set up a plea of payment of rental amount in time and regularly. The very contention of the Plaintiff appears to be contradictory and self destructive to each other. The Plaintiff is not entitle to set up such pleas argument holds good. It is further case of the Plaintiff that the BESCOM authorities have issued notice to the Defendant demanding for payment of arrears of electricity charges and the Defendant has failed to comply with the said notice, hence electricity connection to the suit schedule premises has been disconnected, due to which he was unable to run his business. In this regard he has relied on Ex.P6 document. It appears to be issued on 20.03.2015, wherein the BESCOM authority has stated that the arrears amount has to be paid within stipulated time otherwise they are going to take action. As already discussed above the Plaintiff has fialed to prove before the court that he has adhered to the terms of the lease Agreement and regular in payment of rent and charges, such being the case how the Plaintiff expects that - 11 - NC: 2025:KHC:12338 RFA No. 1155 of 2022 Defendant was required to pay the amount to BESCOM. Since the Plaintiff himself is a defaulter and irregular in payment of rental amount and insisting the Defendant for complying terms of the notice issued by the BESCOM appears to be unreasonable, arguments seems to be reasonable. The PW1 in his cross-examination admitted that he is required to pay electricity charges consumed by him. Even the terms of the lease Agreement entered into between the parties to the case clearly goes to show that the Plaintiff is required to pay electricity charges consumed by him for running his business. He has not produced single piece of document before the Court to show that he has paid electricity charges consumed by him regularly so due to failure of the Plaintiff for paying electricity charges. The Plaintiff has also alleged that the Defendant has illegally put lock to the suit schedule property, due to which was unable to documents his business thereby he has sustained loss to the tune of Rs.1,00,100/- In this regard he has relied on certain photographs, the allegation of putting lock to the suit schedule premises has been specifically denied by the Defendant. So it is for the Plaintiff to establish his allegation with cogent and convincing evidence. In this regard except making oral allegation and producing photos, he has not made any to establish the fact that Defendant illegally put the lock to the suit schedule premises. Even the PW1 in his cross-examination clearly admitted that he has seen who has put the lock to the suit schedule premises. Un these circumstances the contention of the Plaintiff requires strong proof argument cannot be rejected. If really Defendant has put the lock to the suit schedule premises, Plaintiff ought to - 12 - NC: 2025:KHC:12338 RFA No. 1155 of 2022 have given police complaint, but efforts made. Merely because the Defendant has failed to give reply to the notice issued by the Plaintiff, it does no to admission of contents of the said notice, on the contrary the burden is on the Plaintiff to establish that the De has put lock illegally to the suit schedule premises, which he has sustained loss in the business. Since Defendant has specifically denied the allegation of Plaintiff, except issuance of alleged notice he has not mad any efforts to ascertain who actually put the lock to the premises, it is not the case of the Plaintiff that after putting the lock he has enquired the Defendant about it nor he has made any other efforts to ascertain that who has put the lock, so the very conduct of the Plaintiff appears to be doubtful. Since the Plaintiff has failed to pay the rental amount of the suit schedule premises regularly and became defaulter, huge rental amount is due in arrears, therefore now he is trying to escape from his liability thereby making unsustainable allegations, argument seems to be reasonable. If at all the Defendant has put lock the Plaintiff ought to have given complaint against her or he ought to have made any other efforts to get open the lock. No such efforts have been made. Mere producing photographs of the locked premises, does not amounts to proof that Defendant has put the lock to premises. The photographs does not helpful for establishing the fact that the Defendant herself has put said lock, therefore the Plaintiff has miserably failed to prove that the Defendant has put lock to the suit schedule premises illegally, thereby he has sustained loss of Rs.1,00,100/-. Even the Plaintiff has not produced his statement of account showing his income and expenditures - 13 - NC: 2025:KHC:12338 RFA No. 1155 of 2022 incurred in his business and monthly gain accrued to him to ascertain the quantum of loss. Since the Plaintiff has failed to prove the very fact of Defendant putting lock to the suit schedule premises, the question of alleged loss sustained by him due to closure of premises does not arise, therefore the Plaintiff has failed to prove Issue Nos.2 and 3. On the contrary the material placed on record goes to show that the Defendant is due payable arrears of rent and he is chronic defaulter in payment of rent, so also he has categorically admitted the fact of availment of loan of Rs.1 lakh from the Defendant by executing Ex.D1 loan Agreement Having admitting this fact, he has contended that he repaid the same amount, so burden of repayment of loan shits on the Plaintiff, he has not produced single piece of document to prove the fact of repayment of loan amount. The contents of EX.D1 clearly goes to show that the Plaintiff has availed loan of Rs.1 lakh agreeing to repay the same with interest at the rate of 2% per month. The PW1 in the course of cross- examination set up plea stating that he has repaid the amount with interest at the rate of 5% per month. In this regard except his oral testimony, no material has been produced to substantiate his contention, therefore in my view the Plaintiff has failed to prove Issue Nos.2 and 3 and disprove Issue No.4. On the contrary the Defendant has proved Issue No.4. Hence 1 answered Issue No.2 and 3 in the Negative and Issue No.4 in the affirmative.” 9. However, strangely enough, while dealing with issue No.5 in relation to the eviction of the plaintiff from the suit schedule - 14 - NC: 2025:KHC:12338 RFA No. 1155 of 2022 property, the trial court answered the said issue against the defendant and refused eviction on the sole ground that the tenancy of the plaintiff under the defendant had not been terminated by the defendant. In this context, it is relevant to state that in the light of the undisputed relationship between the parties who were landlord and tenant coupled with the finding recorded by the trial court which had attained finality and become conclusive and binding upon the plaintiff to the effect that he had committed default in payment of arrears of rent due to the defendant, the trial court clearly fell in error in refusing to grant the relief of the eviction by improper and erroneous appreciation of the material on record warranting interference by this Court in the present appeal. 10. It is also pertinent to note that even as per the plaintiff, the suit schedule property is kept under lock and key from 2014 onwards as evidenced from the photographs and legal notice dated 19.02.2015 issued by the plaintiff himself and as such, in the light of the material on record which clearly established that the plaintiff had abandoned and vacated the suit schedule property, the trial court clearly erred in rejecting the prayer for possession by passing the impugned judgment and decree which deserves to be set aside - 15 - NC: 2025:KHC:12338 RFA No. 1155 of 2022 and the suit of the plaintiff for permanent injunction is liable to be dismissed and the counter claim of the appellant – defendant deserves to be decreed in her favour. 11. In the result, I pass the following:- ORDER (i) Appeal is hereby allowed. (ii) The impugned judgment and decree dated 04.12.2021 insofar as it relates to decreeing the suit for permanent injunction filed by the respondent – plaintiff and dismissing the counter claim for recovery of possession filed by the appellant – defendant is hereby set aside. (iii) The suit in O.S.No.2691/2015 filed by the respondent - plaintiff is hereby dismissed in its entirety. (iv) The counter claim filed by the appellant - defendant is hereby allowed and the respondent-plaintiff is directed to quit and deliver the vacant possession of the suit schedule property to the appellant-defendant within a period of four months from today. (v) Registry to draw up the decree accordingly. Sd/- (S.R.KRISHNA KUMAR) JUDGE ND/SRL