JUDGMENT
Challenging judgment and decree dated 12.01.2022 passed in O.S.No.3890/2021 by X Addl. City Civil and Sessions Judge, Bangalore, dismissing suit for recovery of possession and arrears of rent, this appeal is filed.
2. Appellant herein was plaintiff, while respondent herein was defendant in suit and they are referred to as such.
3. O.S.No.3890/2021 was filed seeking for decree directing defendant to vacate and hand over possession of plaint premises bearing Sy.no.143 site no.15 to 20, first floor, MEC layout, Main road, Rajagopal Nagar, Laggere, Bengaluru, measuring 80ft. X 90ft. totally 7200 sq. ft. with RCC roofing having 60 H.P. power connection and also to pay Rs.1,55,450/- being arrears as on date of filing of suit and after deducting balance amount from security deposit and in default to pay up- to-date rent and hand over possession, he is liable to pay rent till handing over actual possession of suit premises etc.
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4. But, defendant failed to appear before trial Court. He was placed ex parte by order dated 08.11.2021. Thereafter trial Court framed issues. To prove his case, plaintiff got himself examined as PW.1. Exhibits P.1 to P.53 were marked. Matter was heard and trial Court passed impugned judgment and decree dismissing suit. Assailing same, plaintiff is in appeal.
5. Sri.G.V. Narasimhamurthy, learned counsel for plaintiff submits that impugned judgment and decree was wholly untenable. It was submitted that plaintiff had produced lease agreement entered into between plaintiff and defendant as per Ex.P.1 dated 08.02.2020, wherein, tenancy was for Rs.75,000/- p.m. for a period of 11 months. Thereafter defendant took possession and utilised premises for three months, but failed to pay rent and kept premises locked. Since defendant was neither paying rent nor using premises, plaintiff issued notice on 10.12.2020, after completion of lease period. Though it was served, defendant did not reply or complied. Thereafter plaintiff issued legal notice dated 03.07.2021 terminating tenancy and demanding arrears of rent of
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Rs.1,55,450/-. Even said notice was served but not responded to. Hence he filed suit.
6. It was submitted that plaintiff examined himself as PW.1 and produced material documents such as, rent agreement, copies of legal notices with postal acknowledgement and covers as Exs.P1 to P.5. Though defendant failed to file written statement or cross-examine PW.1, trial Court on erroneous finding, dismissed suit.
7. It was submitted that only reason stated by trial Court while answering points no.1, 2 and 3 in negative was that, as per Section 106 of Transfer of Property Act (hereinafter referred to as 'T.P. Act') , duration of lease of premises let out for manufacturing purpose was deemed to be more than one year, therefore agreement required registration. Since Ex.P.1 - lease agreement was unregistered, it could not be looked into even for collateral purposes. Only on that ground suit was dismissed.
8. It was submitted that terms of agreement were not contrary to Section 106 of TP Act as duration of lease was specifically agreed to be for less than for one year and therefore registration was not mandatory. Learned counsel
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therefore sought for allowing appeal by setting aside impugned judgment and decree and for decreeing suit.
9. Heard learned counsel, perused impugned judgment and decree and record.
10. Respondent is served unrepresented. Even before trial Court, it is seen that respondent was served and unrepresented.
11. From above submission only point that arises for consideration:
"Whether findings of trial Court on points no.1 to 5 are sustainable in law?"
12. From evidence on record, it is seen that Ex.P.1 is rental agreement executed on 08.02.2020 between plaintiff as lessor and defendant as lessee. As per terms, suit property was taken on lease by defendant for purpose of running garment manufacturing unit. Possession was given on 09.02.2020. As per terms of lease, tenant was to pay monthly rent of Rs.75,000/- along with GST and duration of lease was 11 months. Further, as per clause - 14, Rs.10,00,000/- was agreed to be re-paid after expiry of 11 months, accordingly
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entire suit premises with structures was to be vacated by tenant.
13. ExP.2 - notice issued by plaintiff on 10.12.2020, wherein there is clear assertion about defendant defaulting in payment of rents from August 2020 and calling upon defendant to vacate premises on completion of duration of lease. Ex.P.2(c) - postal acknowledgement shows notice was served on defendant. Thereafter plaintiff has issued another notice Ex.P.4 dated 03.07.2021, once again alleging defendant was in arrears of rent from August 2020 and claiming amount of Rs.1,55,450/- after deducting arrears of rent from deposit of Rs.10,00,000/-.
14. In support of his submission, plaintiff deposed in terms of plaint averments and contents of Exs.P.1 to P.5. There was no cross-examination or challenge to plaint averments. Only reason stated by trial Court for answering points no.1 to 5 in negative was that as per Section 106 of Transfer of Property Act, duration of lease of immovable property for manufacturing purposes was deemed to be from year to year and terminable by six months notice.
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15. But, Section 106 of TP Act, provision begins with words 'in the absence of contract or usage to the contrary', this clause has not been noticed by trial Court. In present case, specific condition regarding duration of lease being for less than one year would be contract to contrary. Failure to note same has led to passing of impugned order by erroneously presuming that Section 106 of T.P. Act mandates lease of immovable property for manufacturing purpose for be for more than one year requiring compulsory registration. Since conclusion of trial Court is contrary to statutory provision, same would be perverse.
16. As noted above, Ex.P.1 is undisputed rent agreement between plaintiff and defendant. Exs.P.2 to P.5 - notices issued by plaintiff to defendant, which contain clear assertion about lease agreement and intention to terminate same as well as defendant being in arrears to extent of Rs.1,55,450/- even after adjustment from security deposit of Rs.10,00,000/- paid by defendant. Said calculation and claim for balance being unchallenged would have to be held proved.
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17. In view of above, point for consideration framed herein is answered in negative. Hence, following:
ORDER
Appeal is allowed. Impugned judgment and decree dated 12.01.2022 passed in O.S.No.3890/2021 by X Addl. City Civil and Sessions Judge, Bangalore, is set aside.
Suit is decreed with costs.
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JUDGE
Psg*