O.S.No.

4920/2022

ORDER ON I.A.NO.II

This I.A.No.II is filed by the plaintiffs under the

provisions of Section 151 of Code of Civil Procedure,
1908 praying the Court to direct the defendant to pay the
admitted rent towards use and occupation of the
schedule premises pending adjudication of this suit.

2. The learned counsel for the defendant has

filed the statement of objections to the above application
inter alia contending that, the legal notice dated
01.06.2022 terminating the tenancy of the defendant is
not served to the defendant which is evident from the
variations in the signatures of the defendant found on
the alleged postal acknowledgment card and alleged
lease agreement and on this ground alone for want of
service of notice under Sec.106 of T.P. Act, the suit is
liable to be dismissed. It is also contended that, the
tenancy agreements are in respect of the schedule
premises but, the defendant has shifted to property at
6th ' A ' Main Road, 3rd Phase, J.P.Nagar, Bengaluru in
the month of June 2022 and there is no privity of
contract in relation to the said premises and the said
premises is not identifiable with the property shown in
rental agreements and the terms of lease in respect of
the said premises are yet to be finalised and therefore
this suit is not maintainable. On these and certain other
 O.S.No.4920/2022

grounds, the defendant has prayed for dismissing

I.A.No.II with costs.

3. Whether the I.A.No.II deserves to be

allowed ?, is the point for my consideration.

4. Heard both sides.

5. My finding to the above point is in the

affirmative, in favour of the plaintiffs for the
following :
REASONS

6. The plaintiffs have filed this suit for

ejectment of the defendant from the schedule premises
and for the recovery of arrears of rent in a sum of
Rs.3,83,700/- and to pay the damages at the rate of
Rs.50,000/- per month from the date of termination of
the tenancy till the date of delivery of vacant possession
of the schedule premises. As per the case of the plaintiff,
the defendant was inducted as a tenant by one
Smt.V.Sharadamani who is mother of plaintiffs under
Lease Agreement dated 22.05.2018 for a period of 11
months on monthly rent of Rs.39,300/- and the same was
continued. The original land lady Smt.V.Sharadamani
has died on 12.03.2021 and after her demise, the
plaintiffs succeeded to the schedule premises and in
view of statutory attornement, the defendant has been
requested to pay the rents to the plaintiffs. The
 O.S.No.4920/2022

defendant has paid rents up to June 2019 at the rate of

Rs.39,300/- and from July 2019, he paid rents at the rate
of Rs.38,300/- irregularly and he is due in a sum of
Rs.3,53,700/- towards arrears of rent as on November
2021. The tenancy of defendant has been terminated by
means of legal notice dated 01.06.2022 and the said legal
notice was duly served on the defendants but the
defendant has not complied with the demand and
continues to be in occupation of the schedule premises
illegally and hence, the plaintiffs were compelled to file
this suit.

7. The defendant appeared through counsel

and filed written statement in defence to this suit. When
the case is posted for framing of issues, the present
application is filed for issuing directions to the
defendants to pay the arrears of rent.

8. The first and foremost contention raised by

the defendant is that, the legal notice dated 01.06.2022
terminating the tenancy of the defendant is not served
to the defendant which is evident from the variation in
the signatures of the defendant found on the alleged
postal acknowledgment card and alleged lease
agreement and on this ground alone for want of service
of notice under Sec.106 of T.P. Act, the suit is liable to be
dismissed. In my considered view, this above
submission does not come in the way of depositing the
 O.S.No.4920/2022

arrears of rent because, the question as to whether the

tenancy rights of defendant is terminated in accordance
with the provisions of Sec.106 of T.P. Act 1882, is a
matter of trial. The said question cannot be agitated at
the time of hearing of the present application.

9. The next contention raised by the defendant

is that, the tenancy agreements are in respect of the
schedule premises where as, the defendant has shifted
to property at 6th ' A ' Main road, 3rd Phase, J.P.Nagar,
Bengaluru in the month of June 2022 and there is no
privity of contract in relation to the said premises and
the said premises is not identifiable with the property
shown in rental agreements and the terms of lease in
respect of the said premises are yet to be finalised and
therefore this suit is not maintainable. In my considered
view, I am to say that if the defendant has shifted to a
different premises which is altogether different from the
schedule premises described in the present suit and
since the month of June 2022, he need not worry about
the result of the suit because the eviction decree that
may be passed in this suit would be in relation to the
schedule premises and it cannot be in respect of the
premises where the defendant alleges to be in
possession since the month of June 2022. Even for the
sake of arguments, it is admitted that the defendant is
staying in a premises which is altogether different from
 O.S.No.4920/2022

the schedule premises since June 2022, no prudent

tenant will shift to a different premises without settling
the terms of the lease. Therefore, the defendant must
have shifted to the said different premises on condition
of payment of either same rate of rent or enhanced rent,
as it is not the case of the defendant that the said shifted
premises is less in dimension from that of the schedule
premises. Therefore, the defendant cannot evade
payment of arrears of rent on the ground that the
property where he is in possession is not identifiable
with the property shown in the rent agreements.
Therefore, the defendant is liable to pay the arrears of
rent atleast at the rate of Rs.38,300/- which he paid up to
May 2022 which is reflected in his bank account
passbook produced by him, till the date of termination
of his tenancy rights. The Hon'ble Apex Court in the case
of Asha Rani Gupta Vs. Sri.Vineeth Kumar in Civil
Appeal No. 4682 of 2022 arising out of SLP (Civil)
No.1319 of 2019 decided on 11.07.2022 has held that,
the defendant / tenant, even if denied his status as a
tenant in the suit shop, is liable to deposit the arrears of
rent together with interest and in the event of failure,
the defence of the defendant / tenant will have to be
struck off for not depositing the arrears of rent. The
position of law being stood thus, I am of the clear
opinion that, the defendant cannot plead lame excuses
and he is liable to pay the arrears of admitted rents at
 O.S.No.4920/2022

least, or else his defence will be stuck off from the

records. With these observations, I shall conclude my
discussion holding that, the present I.A.No.II deserves to
be allowed. Accordingly, the point framed herein above
is answered in the affirmative in favour of the plaintiff
and for the said reasons, I proceed to pass the
following :
ORDER
The I.A.No.II is filed under Section 151
of C.P.C., 1908 is hereby allowed.

The defendant is hereby directed to pay

arrears of rent at the rate of Rs.38,300/- per
month ( which is admitted rent subject to final
determination ) from the month of default till
the date of termination of his tenancy, within
one month from the date of this order, failing
which, his defence / written statement stands
automatically struck off from the records.

Cost shall follow the result of the suit.

(Dictated to the Stenographer, typed directly on the computer, script

corrected, signed and then pronounced by me in the open Court on
this the 04th Day of December, 2023.)

YASHAWANT R TAWARE,
39th ACC & S Judge, Bangalore.