M N SUDARSHAN Vs. V MURALI NARAYANA

JUDGEMENT

(1.) ADMIT. The records are secured and since the subject matter of the appeal lies in a narrow compass, it is taken up for final disposal. During the course of this judgment, the parties would be referred to as per their ranking in the trial court.

(2.) THE defendant being aggrieved by the judgment and decree dated 31 -8-2006 passed by the learned trial judge in OS No. 6804/2004 decreeing the suit of the plaintiff for ejectment and also for damages, is before this Court.

(3.) FACTS germane for the disposal of these proceedings can be summarized as follows; the case of the plaintiff is that the defendant is a tenant in respect of a portion of first floor of the premises bearing No. 70, New no. 70/2, Mamulpet, Bangalore 560 053. The defendant occupied the suit schedule property by taking over a business concern and requested the plaintiff to recognize him as a tenant. It is thereafter the plaintiff recognized him as a tenant in respect of the suit schedule property. The tenancy in respect of the suit schedule property is a monthly tenancy. The defendant agreed to pay rent of Rs. 500/- per month on or before 10th of every month and started the business in the schedule property. The lease period initially was for a period of 11 months w. e. f from 2-3-1988 and the same came to an end on 1-2-1989. Thereafter, the tenant has been paying monthly rents and has continued to occupy the suit schedule property as a tenant. The defendant was irregular in payment of rent and after innumerable request, he sent a Demand Draft for Rs. 10,000/- Since the defendant was a chronic defaulter, the plaintiff was not willing to continue him as a tenant in respect of the suit schedule property. Consequently, a notice terminating the tenancy of the defendant and calling upon him to deliver vacant possession was issued. A demand was also made for arrears of rent of Rs. 4,000/- and for damages and mesne profits at the rate of Rs. 5,000/- per month. The said notice was received by the tenant and a reply was sent. Even after service of notice, the defendant did not vacate the suit schedule property and hence the suit is filed for ejectment, damages and for mesne profits. Defendant entered appearance and contested the matter. According to him, the suit schedule property is residential premises and it consists of two rooms, kitchen-cum store, one bathroom and water closet. Since the predominant purpose for which the suit schedule property is taken on lease is residential, the question of vacating the premises would not arise. It is the case of the defendant that suit schedule property was taken as a residential unit and he is carrying on the business in sarees in a small portion of the premises to an extent of 5' X 5', hence the suit for possession is not maintainable. He would also interalia contend that the quit notice issued by the plaintiff is not in conformity with Sec. 106 of the Transfer of Property Act. He would also state that he is not in arrears of rent and that he is not liable to pay damages/mesne profits. The learned trial Judge on consideration of the evidence both oral and documentary has decreed the suit directing the defendant to deliver vacant possession and further has determined damages. 3. Sri Shivakumar, learned counsel appearing for the defendant would press into service only one point in as much as the predominant purpose for which the premises was taken on lease was residential and only in a portion of the premises the saree business is being carried on. Since the predominant purpose is residential in character, the suit for ejectment is not maintainable. The relationship of landlord and tenant is not at all disputed by him. He would rely on a ruling of the apex Court in the case of NILESH NANDKUMAR SHAH vs sikander AZIZ PATEL.