- 1 - HC-KAR NC: 2025:KHC:19543 RSA No. 1252 of 2013 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 6TH DAY OF JUNE, 2025 BEFORE THE HON'BLE MR JUSTICE ASHOK S.KINAGI REGULAR SECOND APPEAL NO. 1252 OF 2013 (MON) BETWEEN: 1. MR B USMAN S/O LATE B ABOOBAKKAR AGED ABOUT 50 YEARS R/AT BEJAI NEW ROAD MANGALORE-575001 …APPELLANT (BY SRI. B LETHIF .,ADVOCATE) AND: 1. M/S SAIBEEN COMPLEX PVT LTD A PRIVATE FLIMITED COMPANY UNCORPORATED UNDER THE COMPANIES ACT, 1956 REP BY ITS MANAGING DIRECTOR MR M A RAHMAN SAIBEEN COMPLEX, LALBAGH MANGALORE-575004 …RESPONDENT (BY SRI. ANANDA ., ADVOCATE) THIS RSA IS FILED U/S. 100 OF CPC AGAINST THE JUDGEMENT & DECREE DTD 19.03.2013 PASSED IN R.A.NO.108/2010 ON THE FILE OF THE III ADDITIONAL Digitally signed by SUNITHA K S Location: HIGH COURT OF KARNATAKA - 2 - HC-KAR NC: 2025:KHC:19543 RSA No. 1252 of 2013 SENIOR CIVIL JUDGE, MANGALORE, DISMISSING THE APPEAL AND CONFIRMING THE JUDGEMENT AND DECREE DTD 01.07.2010 PASSED IN O.S.NO.46/2009 ON THE FILE OF THE III ADDITIONAL CIVIL JUDGE (JR.DN), MANGALORE. THIS APPEAL, COMING ON FOR FINAL HEARING, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: CORAM: HON'BLE MR JUSTICE ASHOK S.KINAGI ORAL JUDGMENT This Regular Second Appeal is filed by the appellant, challenging the judgment and decree dated 19.03.2013 passed in R.A.No.108/2010 by the Learned III Additional Senior Civil Judge and JMFC, Mangaluru, Dakshina Kannada and the judgment and decree dated 01.07.2010 passed in O.S.No.46/2009 passed by the III Additional Civil Judge, Mangaluru, Dakshina Kannada. 2. For convenience, the parties are referred to based on their rankings before the trial Court. The appellant was the defendant and the respondent was the plaintiff. - 3 - HC-KAR NC: 2025:KHC:19543 RSA No. 1252 of 2013 3. Brief facts leading rise to the filing of this appeal are as follows: The plaintiff filed a suit against the defendant for ejectment. It is the case of the plaintiff that the plaintiff is the owner of the suit schedule property and the suit schedule property was let out to the defendant and Rs.3,371/- was fixed towards monthly rent. The defendant did not pay the rent. The defendant is a chronic defaulter regarding the payment of monthly rent. It is contended that there is a huge arrears of rent due till November, 2008, total amounting to Rs.61,278/-. Hence, the plaintiff issued a legal notice dated 10.12.2008, terminating the tenancy of the defendant over the suit schedule property and also sought for the payment of arrears of rent. The said notice was returned with an endorsement stating "not claimed". Hence, a cause of action arose for the plaintiff to file a suit for ejectment. - 4 - HC-KAR NC: 2025:KHC:19543 RSA No. 1252 of 2013 4. The defendant filed a written statement, denying the averments made in the plaint and also denied regarding the issuance of quit notice. It is contended that there is no termination of tenancy as rent of Rs.3,100/- was received by the plaintiff on 14.01.2009. There is no cause of action to file a suit. Hence, prays to dismiss the suit. 5. The trial Court, based on the pleadings of the parties, framed the following issues. 1. Whether the plaintiff proves that he is the absolute owner of suit schedule premises? 2.Whether the plaintiff further proves that the defendant was in arrears of rent to the extent of Rs.61,278/-? 3. Whether the plaintiff further proves that a valid quit notice was issued to the defendant? 4. Whether the plaintiff is entitled to claim mesne profits at the rate of Rs.300/- per day from 28.12.2008 to 09.01.2009 total amounting to Rs.3,900/-? 5. Whether the plaintiff is entitled to future mesne profits? - 5 - HC-KAR NC: 2025:KHC:19543 RSA No. 1252 of 2013 6. The plaintiff to substantiate its case, its Managing director, was examined as PW1, examined one witness as PW2 and marked 2 documents as Ex.P1 and Ex.P2. In rebuttal, the defendant was examined as DW1 and marked four documents as Ex.D1 to Ex.D4. The trial Court, after assessment of the verbal and documentary evidence, answered issue Nos.1 to 3 and 6 in the affirmative, issue Nos.4 and 5 partly in the affirmative. Issue No.7 as per the final order. The suit of the plaintiff was decreed with costs. The defendant was directed to vacate and hand over the vacant possession of the suit schedule property to the plaintiff within four months from the date of this order and also directed the defendant to pay the mense profits at the rate of Rs.150/- per month from 28.12.2009 till the date of institution of the suit and future mesne profits at the rate of Rs.150/- per day from the date of institution of the suit till the date of decree as well as from the date of decree till the date of handing over the vacant possession of the suit schedule premises. - 6 - HC-KAR NC: 2025:KHC:19543 RSA No. 1252 of 2013 7. The defendant, aggrieved by the judgment and decree passed in O.S.No.46/2009, preferred an appeal in R.A.No.108/2010 on the file of III Additional Senior Civil Judge and JMFC, Mangaluru, Dakshina Kannada. The first appellate Court, after hearing the arguments of both sides framed the following points for consideration. 1. Whether the findings of the lower court that there is a valid quit notice is contrary to the evidence on record? 2. Whether the findings of the lower court that defendant is liable to pay mesne profits at the rate of Rs.150/- per day from 28.12.2009 is contrary to the evidence of defendant? 3. Whether the judgment and decree of the trial Court needs interference? 4. What order? 8. The First Appellate Court, on re-assessing the verbal and documentary evidence, answered point Nos.1 to 3 in the negative, point No.4 as per the final order. The appeal was dismissed vide judgment dated 19.03.2013, confirming the judgment and decree passed in - 7 - HC-KAR NC: 2025:KHC:19543 RSA No. 1252 of 2013 O.S.No.46/2009. The defendant, aggrieved by the impugned judgments, filed this regular second appeal. 9. Heard the arguments of the learned counsel for the defendant. 10. The learned counsel for the defendant submits that the notice to termination of tenancy is not valid as 15 days clear cut notice was not issued as per Section 106 of the Transfer of Property Act. He submits that the Courts below have committed an error in holding that the plaintiff has terminated the tenancy. Hence, on these grounds, he prays to allow the appeal. 11. This Court admitted the appeal on 30.10.2014 to consider the following substantial question of law: "Whether the Courts below are justified in holding that the plaintiff is the owner of the schedule premises, which is contrary to the oral and documentary evidence?" - 8 - HC-KAR NC: 2025:KHC:19543 RSA No. 1252 of 2013 Reg. Substantial Question of Law 12. There is no dispute regarding the relationship between the plaintiff and the defendant as a lessor and lessee and the defendant had taken the schedule premises on monthly rent of Rs.3,371/-. The lease period was not extended. The defendant did not pay the rent amount. The defendant is a defaulter. The defendant is in arrears of rent. The plaintiff got issued a legal notice on 10.12.2008, terminating the tenancy. The said notice postal cover returned with a shara stating "not claimed". Hence, the service of notice on the defendant is held sufficient as per Section 27 of the General Clauses Act, 1897. The defendants did not reply to the said legal notice. 13. The plaintiff, in support of his case, marked the documents. Ex.P1 is the copy of the legal notice Ex.P2 is the unserved postal cover - 9 - HC-KAR NC: 2025:KHC:19543 RSA No. 1252 of 2013 14. The plaintiff, also examined one witness as PW2. The examination-in-chief of PW2 is the replica of the examination-in-chief of PW1. On the other hand, the defendant was examined as DW1. Though he reiterated the written statement averments in the examination-in- chief, in the cross examination, he admits the relationship between the plaintiff and the defendant as a lessor and lessee, and he also admits that the plaintiff has not renewed the lease. The defendant has no right to continue in possession of the suit schedule property, after the expiry of a lease period and determination of the lease. 15. The trial Court, considering the relationship between the plaintiff and the defendant as a lessor and lessee, and the plaintiff has not renewed the lease and he terminated the tenure by issuing a legal notice as per Ex.P1, has rightly decreed the suit of the plaintiff. The First Appellate Court on re-assessing the verbal and documentary evidence, has rightly held that the suit schedule premises is identified in possession of the - 10 - HC-KAR NC: 2025:KHC:19543 RSA No. 1252 of 2013 defendant under the name and style of M/s.Unique Fancy and it is identifiable. Both Courts below have rightly passed the impugned judgments, considering the verbal and documentary evidence. In view of the above discussions, I do not find any error in the impugned judgments and accordingly, I answer substantial question of law in the affirmative. Accordingly, I proceed to pass the following order: ORDER 1. The Appeal is dismissed. 2. The judgments and decrees passed by the Courts below are hereby confirmed. 3. No order as to the costs. Sd/- (ASHOK S.KINAGI) JUDGE RCK List No.: 1 Sl No.: 4