Andhra HC (Pre-Telangana)
Alok Kumar Sharma vs Smt.T.Hemalatha on 30 July, 2012
Equivalent citations: AIR 2013 ANDHRA PRADESH 7, (2012) 5 ANDHLD 797
Author: N.R.L.Nageswara Rao
Bench: N.R.L.Nageswara Rao
THE HONOURABLE SRI JUSTICE N.R.L.NAGESWARA RAO SECOND APPEAL NO.45 OF 2011 30-07-2012 Alok Kumar Sharma Smt.T.Hemalatha Counsel for the Appellant: Sri R.A.Achuthanand Counsel for the Respondent: Smt.T.Vidya Rani <Gist : >Head Note: ? Cases referred: 1.2003(2) ALD 801 2.AIR 2007 A.P. 156 3.1983(2)AWR.71 THE HON'BLE SRI JUSTICE N.R.L.NAGESWARA RAO SECOND APPEAL NO.45 OF 2011 JUDGMENT:
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The defendant in O.S.No.2078 of 2006 on the file of the court of X Junior Civil Judge, City Civil Court, Hyderabad is the appellant herein.
02. The suit was one filed for eviction of the defendant from the suit schedule property. The allegations in the plaint goes to show that the defendant is the tenant of the plaintiff, which is a residential building, on a monthly rent of Rs.5000/- per month from October-2003 for a period of two years initially. There was also an agreement for enhancing the rent @ 10% for every two years. The defendant was irregular in payment of the rents and in spite of repeated demands and also a notice, he did not pay the money. The tenancy was terminated by a notice dated 22-12-2005. The suit premises is situated in a prime locality and would be fetched a rent of not less than Rs.8000/- per month. The defendant was in arrears of rent of Rs.35,000/-.
03. The defendant filed a written statement admitting the tenancy and also the rent of Rs.5000/-. The rents were paid regularly to the plaintiff or her husband by way of account payee cheques. No default was committed by the defendant. In fact, three cheques were sent for the month of September to November- 2005 but they were not collected by the plaintiff. The notice under Section 106 of the Transfer of Property Act,1882 (for short "the Act") was not served on the defendant. The rental value as claimed by the plaintiff is not true. Consequently, the defendant pleaded for dismissal of the suit.
04. After considering the necessary evidence on record, the court below has passed a decree for eviction and directing payment of arrears of rent @ Rs.35,000/- which was already deposited. The mesne profits are directed to be decided on a separate application. As against judgment, A.S.No.98 of 2008 was filed and the appellate court confirmed the order of eviction and so far as the mesne profits are concerned, the defendant is directed to pay Rs.5,500/- per month from March 2006 to September,2007 and Rs.7,000/- per month thereafter for two years and thereafter at Rs.8,000/- per month for two years with a hike of 20% for every two years. Aggrieved by the said judgment, the present Second Appeal is filed.
05. The Second Appeal was originally admitted on the following substantial questions of law:-
1. Whether both the courts have committed an error by holding that the endorsement of sufficient service on Ex.A-5 and A-6 "not claimed" amounts to sufficient service of notice when the Appellant having discharged the burden of proof, it shifts on the Appellant and having not discharged is contrary to Section 103 of the Evidence Act.
2. Whether the appellate court can pass a decree for possession when the appellant has discharged the burden of proof of non-service of notice and whether such a decree is in sufficient compliance with the provisions of Section.106 of T.P.Act.
At the time of arguments, a further question of law has been raised about the grant of mesne profits by the appellate court. Consequently, the following additional question of law is also framed.
Additional issue:-
Whether the appellate court is justified in granting the future mesne profits without any inquiry Under Order XX Rule 12 C.P.C.?
POINTS:-
06. The case on hand is an example as to how the appellant, who has entered into the residential premises of a landlady, is putting her of inconvenience and also not paid the rents for sufficiently long time. The relationship of landlady and tenant is not denied. The learned counsel for the appellant tried to contend that there is no proper notice under Section 106 of the Act and consequently the suit is not maintainable. As can be seen from the proceedings the notice under Section 106 of the Act was sent to the defendant to his residential address and also the office address. Ex.A-2 is the notice and Exs.A-5 and A-6 are the returned postal covers. The defendant does not dispute about the correctness of the address mentioned therein. It is difficult to believe that the appellant would not have present in the suit schedule premises, to which place the notice was sent and it was also returned as "not claimed". In this connection, it is useful to refer to a decision reported in M.A.Ghani Vs. P.Rami Reddy(1) whereunder it was held as under:-
" Quit notice sent by a registered post to the correct address and it was returned with an endorsement that the addressee was continuously absent for week days. Held that it is a valid service."
07. Therefore, in view of the above circumstances, the courts below have rightly found that there was a proper service of notice and consequently it cannot be contended that the suit is bad for want of proper notice under Section.106 of the Act.
08. The learned counsel for the appellant further contends that under Order XX Rule 12 CPC, the appellate Court or any court has no power to award future mesnse profits without an inquiry. He relied upon a decision reported in St.Mary's Educational Society & Others Vs. Dr.Qutubuddin Ahmed(2). It is to be noted that the Civil Procedure Code was amended in 1976 and Clause.(ba) to Order XX Rule.12 CPC was introduced, which reads as under:-
"Or.XX,Rule.12: Decree for possession and mesne profits (1) Where a suit is for the recovery of possession of immovable property and for rent or mesne profits, the court may pass a decree:--
(a) for the possession of the property;
(b) for the rents which have accrued on the property during the period prior to the institution of the suit or direction an inquiry as to such rent;
(ba) for the mesne profits or direction an inquiry as to such mesne profits;
(c)........
........."
09. Evidently, the amendment of the procedural laws is only to cut down the delays and for expeditious relief of the litigants who are successful in the litigation. As can be seen from Clause (ba) the court has got power to pass mesne profits or direct an inquiry. In this connection, it is to be noted mesne profits includes past mesne profits and future mesne profits. The amended provision does not restrict to the past mesne profits. When it is a beneficial provision, for the benefit of the Decree Holder, the relief cannot be denied. The provision under Order XX Rule 12(3) though not deleted can only be read along with the amendment which was meant for the benefit of the litigants. In fact, in the above judgment, the learned Single Judge has not taken note of a Division Bench judgment of our own High Court reported in Kalepu Subbarajamma Vs. Tiguti Venkata Pediraju and 10 others(3) whereunder it was held that the appellate court has got every power to grant future mesne profits even without there being a prayer or direct an inquiry. It will be useful to extract the para.16 of the judgment:-
"We may observe that in none of these cases the power of the Court to grant mesne profits at the time of passing the decree for possession is doubted. On a consideration of the relevant provisions and the nature of relief, we hold that there is a distinction between the claim for past profits and a claim for future profits. The latter is based on a cause of action that arises subsequent to the date of the suit whereas the former relates to period anterior to the suit In the case of past profits the plaintiff has to specifically ask for it paying the advolarem Court fee. In the case of futile profits, no question of payment of Court fee arises as the period for which the negation prolongs cannot be predicated. WE therefore hold that so far as future mesne profits are concerned even without there being a prayer in the plaint, the Court can award the same or direct an enquiry into the same at the time of passing the decree for possession. Similarly, the Appellate Court can grant future mesne profits even if there is no appeal by the plaintiff against that part of the decree which is silent about future mesne profits. In an appeal pending before it against a decree for ejection, the Appellate Court has got undoubted jurisdiction to grant mesne profits or to direct an enquiry into the same as it is a part of the general relief of possession. It is well settled principle of law that the power of the Appellate Court is coextensive with the power of the original Court and when an appeal is pending, the suit is deemed to be pending".
10. Therefore, when the Division Bench of our own High Court lays down the law that the court has got power to grant future mesne profits or direct an inquiry, the counsel for the appellant cannot rely upon the same.
11. The learned counsel for the appellant contended that mesne profits were determined by the first appellate court without any material and consequently it is not proper. It is to be noted that whenever the mesne profits are determined by any court or Commissioner, they will be determined taking into consideration several factors. The important one is location of the premises; existing rent and the trend in rising of the rental values. Evidently, the schedule premises is located in Himayat Nagar of Hyderabad, which is a prime locality and by the date of the suit, the rent was said to be Rs.5,000/- and the increase for periodically cannot be ignored. The increase of rents granted by the first appellate court cannot be said to be unreasonable and not based on any factual consideration. Therefore, the said contention of the appellant cannot also be accepted.
12. In this case, the appellant who has taken the residential premises has put the landlady to an hazardous litigation and was also irregular in payment of the rent and consequently it is a fit case for grant of damages where the appellant having involved in frivolous and delaying litigation. Therefore, the appellant is directed to pay damages to the plaintiff. Taking into consideration the above facts and also the fact that even after institution of the Second Appeal and also during the pendnecy of Appeal, the rents were not being paid and in the Second Appeal a stay was obtained for deposit of the half of the amount only, I feel the ends of justice would meet if the appellant is directed to pay a sum of Rs.25,000/- as damages for the litigation for which he has involved the landlady.
Accordingly, the Second Appeal is dismissed with costs and the appellant is directed to pay a sum of Rs.25,000/-(Rupees Twenty Five Thousand only) towards damages apart from the future mesne profits and the arrears of rent as directed by the first appellate court within a period of two(2) months, failing which the interest @ 12% p.a. will carry till the payment. However, the appellant is granted two(2) weeks time for vacating the premises.
_______________________ N.R.L. NAGESWARA RAO,J 30-07-2012