Andhra HC (Pre-Telangana)
Satyabhama Menon vs A. Motibai on 17 November, 1997
Equivalent citations: 1998(3)ALT198, 1998 A I H C 3438, (1998) 2 RENTLR 172, (1998) 2 CIVILCOURTC 579, (1998) 3 ANDH LT 198
Author: Syed Saadatulla Hussaini
Bench: Syed Saadatulla Hussaini
ORDER Syed Saadatulla Hussaini, J.
1. Aggrieved by the Judgment and Decree passed by the IV Additional Judge, City Civil Court, Hyderabad in O.S. No. 715 of 1986, dated 26-6-1990 this appeal has been filed.
2. The appellant is the defendant in the suit. The admitted facts by both the Counsel are that the premises bearing No. 6-3-853, Ameerpet, Hyderabad, owned by the respondent-plaintiff (hereinafter referred to as "the suit premises") was leased out on rent to the appellant in the month of April, 1968. It is stated that there is no rental agreement between the parties. The transaction of letting out the premises to the appellant by the respondent took place in the last week of March, 1968 initially for a rent of Rs. 350/- per month and periodically it was raised to Rs. 1,500/- per month at the time of instituting the suit. The plaintiff-respondent issued notice through her Counsel determining the tenancy of the defendant-appellant under Ex.A-1, dated 4-2-1986. It is stated that the notice was served on the defendant on 7-2-1986 terminating the tenancy on 28-2-1986 and directed the appellant to handover the possession on first of March, 1986, treating the tenancy from month to month commencing from the 1st day of the calendar month and ending with the last day of the calendar month, that the tenancy is terminable by a 15 days notice ending with the end of the calendar month and claiming the mesne profits at the rate of Rs. 4,000/- per month with effect from 1-3-1986 till the date of handing over possession. It is submitted that the appellant has sent a reply to the said notice, but copy of the reply notice has not been filed as Exhibit. It is also stated that the appellant had committed various acts of malfeasance and misfeasance in respect of the suit premises.
3. Mr. V.V. Ramanadham, learned Counsel for the appellant submits that the defence raised in the suit by the appellant was that though the tenancy is a monthly tenancy but the commencement of the tenancy is from 4th of April 1968 to 3rd of May 1968, i.e., month commencing from 4th of the month ending with the 3rd of next month. As such, notice Ex.A-1 determining the tenancy is invalid and the suit is not sustainable and deserves to be dismissed as it is not in conformity with the provisions of Section 106 of the Transfer of Property Act. It is further submitted by him that as per the oral agreement, the appellant had constructed certain sheds for running the school and the tenancy was not for residential purposes only, but for running the school which the appellant was previously running in a small premises. For expansion of the school, the appellant had taken the premises on lease, and in fact, the respondent had agreed to compensate the appellant the cost of the construction of the sheds at the time of vacating the premises.
4. The learned Counsel for the appellant fairly submits that the appellant has not filed a counter-claim against the respondent in the suit and as such, the appellant may not be entitled to claim any amount towards the cost of the sheds, constructed by her from the respondent.
5. The trial Court framed five issues as under:
(1) Whether the plaintiff is entitled to vacant possession of suit schedule 45 property?
(2) Whether the plaintiff is entitled for recovery of Rs. 1,500/- towards rent from the month of February, 1986?
(3) Whether the plaintiff is entitled to Rs. 4,000/- towards mesne profits and damages from the month of March, 1986?
(4) Whether the plaintiff is entitled for future mesne profits from 1-4-1986?
(5) To what relief?
6. At the time of arguments the trial Court framed two questions and considered Issue Nos. 2, 3, and 4 jointly. The trial Court, on consideration of the oral and documentary evidence, held that the notice terminating the tenancy of the appellant is valid in law. The respondent agreed for the construction and accepted the increased rent. The respondent failed to prove that the suit premises will fetch a rent of Rs. 4,000/- per month taking into 15 consideration the location of (sic. and) the prevailing market value of similarly situated properties. As such, she will be only entitled for Rs. 1,500/- per month. In fact, it is stated in the Judgment that issues 2 to 4 have been answered in favour of the plaintiff, but actually it is not so.
7. Now the only point for consideration in this appeal is whether Ex.A-1 issued by the respondent terminating the tenancy of the appellant is valid in law.
8. Mr. Ashok Anand Kumar has read the entire evidence. P.Ws. 1 and 2 and D.Ws. 1 to 3 together with Exhibits and also brought to my notice Exs. A-1, A-2, X-1 and Exs.B-15 to B-65. It is not disputed that the tenancy is oral. To consider the validity of Ex. A-1, it is necessary to look into the contents of A-1, date of issue and its service on the appellant and also the oral and documentary evidence with regard to the commencement of tenancy between the appellant and the respondent.
9. Ex.A-1 reflects that the tenancy between the parties is from month to month commencing from the 1st day of the calendar month and that the tenancy is terminable at the end of the calendar month by a 15 days notice. It also states that the suit premises should be vacated by the end of the month i.e., 28-2-1986 and the vacant possession of the premises should be handed over on 1st March, 1986.
10. According to the respondent, the tenancy is from month to month and it commences on the first of the month and concludes at the expiry of the month. But, according to the appellant, though the tenancy is from month to month, it commences from 4th of each month and concludes at the 3rd of next month. To appreciate this, it is necessary to look into the oral and documentary evidence that has been adduced by both the parties.
11. P.W-1, who is the respondent-plaintiff, is the landlady aged about 71 years in June, 1988 and was examined on commission. She states that the appellant-defendant is the tenant and she is running a private school in the suit premises and that she constructed sheds without her permission and raised some partition walls. She had issued notice Ex.A-1, dated 4-2-1986 through her Advocate to the appellant-defendant determining her tenancy and asking her to handover the possession of the suit premises on 28-2-1986 and claimed mesne profits and damages at the rate of Rs. 4,000/- per month for use and occupation after 1-3-1986. She states that she had given the suit premises on monthly rent of Rs. 1500/- per month to the respondent and asked the appellant to vacate the suit premises for reconstruction of the house for her daughter's children for giving them separate portions and that she had never given any permission to the defendant to erect any shed in the open land or make any alterations in the suit premises. She states that her grandson-P.W.2-Chi. Bharatchand Reddy is looking after the suit premises, present eviction case and other suit filed by the defendant and that he knows everything. She says that her grandson is looking after the affairs for the past 20 years, but in her cross-examination she states that she was passing the receipts of monthly rents. She also denies that oral agreement of lease was made between the respondent and the appellant in presence of Balaiah and Mrs. Clara Issac i.e., D.Ws.2 and 3.
12. P.W.2 is the grandson of the respondent. He states that respondent is his grandmother, that the appellant is paying a rent of Rs. 1500/- per month 20 and the tenancy commences from 1st of the month ending with the last day of the month, that the defendant is running a Private School in the suit premises and constructed sheds in the suit premises without permission, that she raised construction in open land and raised partition walls, and that he is looking after the prosecution of the case. He further states that before the suit, plaintiff issued a legal notice dated 4-2-1986 under Section 106 of Transfer of Property Act and the said notice is Ex.A-1. Ex.A-2 is the postal acknowledgement containing signature of the appellant-defendant which was received by her on 7-2-1986. The respondent asked the appellant to vacate the premises by 28-2-1986 and handover the vacant possession. He further states that the plaintiff claimed damages at Rs. 4000/- per month for use and occupation as the suit premises was in an area of 4,500 sq. yards situated at Ameerpet, Hyderabad which is a centrally located place. The statement of payment of rents through DDs from February 1986 to May 1988 has been marked as Ex.B-1 and Ex.B-2 is the memo of refused DDs. He states that premises was let out about 15 to 20 years back. The petitioner may be a minor at the time of letting out the premises and also states that he must have been studying in school at Ooty, but returned to Hyderabad and was looking after the affairs of his grandmother.
13. The appellant has examined herself as D.W.I. She states that she took the said premises on oral tenancy about 20 years back, that she took possession of the suit premises on 4-4-1968 and the negotiations of taking the suit premises on rent took place in the last week of March 1968 and that the respondent told her that tenancy would begin from the date of taking possession. When the said negotiations took place, one Mr. Balaiah and Mrs. Clara Isaac were present. Balaiah is the Milk Vendor who supplied milk to both the defendant and plaintiff. Mrs. Clara Isaac is her staff-member and she had been working with her prior to 1968. She states that initial tenancy was for Rs. 350/- per month and it was periodically increased to Rs. 1,500/- per month. She had taken the premises for running the school and as she wanted to expand her school and the accommodation in which she was earlier running the school was not sufficient. She admits that the receipt of Ex.A-1 notice. She states that she had replied to the said notice, but the copy of the said notice is not filed in the present suit but it has been filed in the Court of IV Additional Judge, City Civil Court, Hyderabad in O.S. No. 715/1986. She denies that suit premises will fetch a rent of Rs. 4,000/- per month and she states that the respondent is not accepting the rents from March 1986 and she has filed the proof of refusal in Exs.B-15 to B-65. In the cross-examination on 9-7-1989 she states that the tenancy is from month to month (Monthly).
14. D.W-2 C. Balaiah is the Milk Vendor. He states that he was supplying the milk to both the parties and says that when the negotiations took place between the parties in 1968, he and D.W-3 Clara Isaac were present. He further states that the old school premises was shifted to the suit premises on 4-4-1968. In cross-examination he states that the negotiations took place between the parties in March 1968 and the appellant occupied in April 1968.
15. D.W.3 is the teacher in the school run by the appellant and she states that the present suit premises is about half furlong from the old premises wherein the appellant was running the school and that it was on 4-4-1968 that she shifted to the new premises. She states that her marriage took place on 8-5-1968 and she remembers the said date and speaks of the presence of D.W.2 the Milk Vendor in March 1968. She further states that the tenancy would start from the date when the possession is given and even in the chief examination she states that she does not know the conditions of tenancy.
16. On the above evidence, it has been stated by either of the parties that the tenancy is from month to month (Monthly). But, the only question remains whether the tenancy between the parties commenced from 1st of the month i.e., 1st of April or 4th of April 1968. It is admitted that plaintiff has issued notice Ex.A-1 and the appellant states that she has replied to it. But, a copy of the reply notice was not filed before the Court. The appellant could have asked the respondent to produce the original of the reply of notice, and that has also not been done in this case. It is stated in the written statement the tenancy is oral and month to month (Monthly) but it is not stated that the date of commencement of tenancy would be from the date of occupation of the premises by the appellant. The learned Counsel submits that he had stated that the tenancy commenced from 4-4-1968 and as such, the monthly tenancy would conclude on third of next month i.e., May, 68. In this context, the original receipts passed by the landlady at the time of commencement of tenancy have also not been filed by the appellant.
17. It is not the plea in the written statement that the condition of oral tenancy was that it shall commence from the date when the appellant occupied the premises. The appellant-D.W. 1 states that she occupied the premises on 4-4-1968, but D.W.3 in her Chief-Examination itself says that she does not know the conditions of tenancy. D.W.2 who was examined on 24-1-1990 states that he is a Milk Vendor supplying milk to both the parties and he was present at the time of negotiations of the tenancy between the parties. According to the parties, the negotiations took place in March 1968 and D.W.2 was deposing on 24-1-1990 about 22 years after the negotiations and he specifically states that the school was shifted from the old premises to the new premises on 4-4-1968 and the fact that he could remember the sepcific date as 4-4-1968 is difficult to be believed. Apart from this, his presence is doubtful. The respondent P.W.I in her cross-examination specifically denies the presence of D.W.2 and this is coupled with the admitted statement filed by the appellant which was got marked through P.W.2. It is seen that the rents were tendered by the appellant only 17 times out of 28 times, through DDs either on 2nd or 3rd of the commencement of the month. Only on 7 occasions, the DDs were made on 4th of the month and for other two months it was made on 5th of each month and once it was on 6th of the month. There is nothing in the pleadings or in the evidence of the appellant that the rents were paid even before the commencement of the date of tenancy. This also indicates that the tenancy does not commence from 4th of the each month. The learned Counsel also stresses that the trial Court held that the burden of proof is on the defendant-appellant that the said tenancy commences from 4th of each month, but, the same has not been discharged by the defendant-appellant. When both of the defendant-appellant whether the commencement of monthly tenancy is from 1st of each month or from 4th of each month, the question of burden 30 of proof pales into insignificance.
18. The learned Counsel relics on the Apex Court Judgment in Bhagabandas v. Bhagwandas Kanu, . In para 3 of the Judgment it was held as under:
"Now, it is settled law that a notice to quit must be construed not with a desire to find faults in it, which would render it defective, but it must be construed ut res magis valeat quant pereat. "The validity of a notice to quit" as pointed out by Lord Justice Lindley, L.J. in Sidebotham v. Holland, (1895) 1 QB 378 "ought not to turn on the splitting of a straw". It must not be read in a hyper-critical manner, nor must its interpretation be affected by pedagogic pendantism or over refined subtlety, but it must be construed in a common sense way. See Harihar Banerji v. Ramsashi Roy, 45 Ind. App 222 = (AIR 1918 PC 102). The notice to quit in the present case must be judged for its validity in the light of this well recognised principle of interpretation."
19. In the view I have taken, the trial Court has not committed any illegality in coming to its conclusion that the notice issued by the respondent determining the tenancy of the appellant is valid in law. No interference is called for. The Judgment and Decree passed by the trial Court are hereby confirmed. The appeal lacks merit and it is accordingly dismissed. In the circumstances, no costs.