Andhra Pradesh High Court - Amravati
Desireddy Raghava Reddy, vs Pasupuleti Jayaprada Died on 1 September, 2022
THE HON'BLE SRI JUSTICE SUBBA REDDY SATTI
SECOND APPEAL No.253 of 2022
JUDGMENT:
Defendant in suit O.S.No.373 of 2002 on the file of Principal Junior Civil Judge, Gudur filed the above second appeal, against the judgment and decree dated 06.04.2022 in A.S.No.19 of 2016 on the file of VII Additional District Judge, Gudur, SPSR Nellore District, confirming the judgment and decree dated 06.09.2010 in O.S.No.373 of 2022.
2. Parties to this judgment are referred to as they are arrayed in the suit.
3. Plaintiff filed suit O.S.No.373 of 2002 to eject the defendant and recovery of possession of plaint schedule property from the defendant. Plaint schedule property is the house bearing Door No.19-1, Assessment No.5302 and site in Gudur Municipality.
4. In the plaint, it was contended interalia that the plaintiff is the owner of the plaint schedule property. The schedule property and other shops in the complex were leased out to the defendant for two years and lease period of suit schedule property comes to an end by 31.05.2002. The defendant paid advance of Rs.7,000/-, which must be returned to him without interest at the time of his vacating the schedule property, after making adjustment if any. The rent for the period from 01.06.1994 to 31.05.1996 is Rs.2,000/-; from 01.06.1996 to 31.05.1998 is Rs.2,250/-; from 01.06.1998 to 31.05.2000 is Rs.2,500/- and from 01.06.2000 to 31.05.2002 is Rs.2,750/-. Defendant even after expiry of lease period by afflux of time by 31.05.2002 did not vacate the premises. 2 Defendant's possession became unlawful, and he is liable to pay damages for use and occupation. Quit notice dated 29-6-2002 under Section 106 of the Transfer of Property Act, 1881 (for short "T.P. Act") was issued to defendant asking him to vacate the schedule property and instead of vacating, defendant sent a reply with false allegations.
It was further contended in the plaint that the suit schedule property is required for personal occupation of plaintiffs' family and the schedule house is old one and it requires repairs; that the defendant did not pay rent for December, 2001 and committed default; defendant sent demand draft for Rs.4,600/- against Rs.5,500/- and hence, paid deficit of Rs.900/- and hence, filed suit for the reliefs stated supra.
5. Defendant filed written statement and contended interalia that the defendant has been running a lodging house in the schedule property in the name and style of Vishnu Priya Lodge. He admitted regarding advance of Rs.7,000/- lying with the plaintiffs. He also admitted that lease was expired by afflux of time by 31.05.2002, however contended that he need not vacate the schedule property without quit notice by the plaintiff under Section 106 of the T.P.Act and his status is tenant holding over. Defendant admits regarding issuance of quit notice and his sending reply. He also contended that on 01.06.2002, defendant handed over vacant possession of one shop room (not the plaint schedule property) and after taking possession of the shop, plaintiffs inducted new tenant. Defendant denied regarding default in payment of rent and further contended that the quit notice 3 issued by defendant is defective and eventually prayed to dismiss the suit.
6. Initially, suit was filed by sole plaintiff P.Jayaprada, represented by General Power of Attorney Holder her husband. Pending suit, after her examination, plaintiff died and hence, the plaintiffs 2 to 4 came on record.
7. On behalf of plaintiffs, initially sole plaintiff examined herself as P.W.1. Evidence was recorded by the advocate commissioner. 3rd plaintiff was examined as P.W.2 and got examined P.W.3. Exs.A-1 to A-9 were marked. On behalf of defendant, sole defendant examined himself as D.W.1 and got examined D.W.2. Exs.B-1 to B-4 were marked.
8. Basing on the pleadings, the following issues have been framed by the trial Court:
1) Whether the power of attorney is legal and valid?
2) Whether the suit based on the power of attorney is proper and maintainable?
3) Whether the quit notice is legal and valid?
4) Whether the plaintiff is entitled for ejecting the defendant and recovery of possession of the plaint schedule property from the defendant as prayed for?
5) To what relief?
9. Trial Court dealt with issues 1 and 2 jointly and came to conclusion that husband of plaintiff being General Power of Attorney Holder filed affidavit under Rule 32 of Andhra Pradesh Civil Rules of Practice and the same was allowed. Trial Court also considered Order III Rule 2 of Code of Civil procedure and eventually, recorded finding that suit was properly filed by General 4 Power of Attorney Holder by following all the requisites to file the suit and there is no irregularity in filing the suit. Thus, answered issues Nos.1 and 2 in favour of plaintiff. Dealing with issue No.3 regarding validity of quit notice under Section 106 of T.P.Act, trial Court came to conclusion that the quit notice is valid and legal. Dealing with issue No.4, trial Court came to conclusion that defendant committed default in payment of rents and eventually, decreed the suit, directing the defendant to vacate the schedule property within a period of two months and hand over vacant possession of the plaint schedule property to the plaintiff.
10. Against the said judgment and decree, defendant filed appeal A.S.No.19 of 2016 on the file of VII Additional District Judge, Gudur, SPSR Nellore District. Lower appellate Court being final factfinding Court, on consideration of oral and documentary evidence and, also legal aspects, dismissed the appeal, by judgment and decree dated 06.04.2022. Against the judgments and decrees, the present second appeal is filed.
11. Heard Sri E.V.V.S.Ravi Kumar, learned counsel for the appellant and Sri S.Varadarajulu Chetty, learned counsel for the respondents.
12. Learned counsel for appellant would contend that after issuance of quit notice under Ex.A-1, landlord accepted the rents and hence, lease is deemed to be renewed. He also would contend that quit notice is dated 29.06.2002 is defective notice. 30 days is given to vacate the premises and 30 days would expire by 29-7- 2002 but not the month end and hence the notice is not valid. 5
13. On the other hand, learned counsel for respondents supported the judgments of the Courts below.
14. Basing on the above pleadings and contentions, the following are the substantial questions of law arise for consideration:
1) Whether acceptance of rents after issuing of quit notice would amounts to renewal of lease or amount to waiver?
2) Whether the notice issued under Ex.A-1 is valid?
15. Undisputed facts, from the pleadings, are that plaint schedule property is house and site bearing Door No.19/1, Assessment No.5302 situated in Gudur Municipality. There is no dispute regarding landlord and tenant relationship. Defendant has been running a lodge in the name of Vishnu Priya Lodge in the schedule premises. Going by the averments in the plaint and written statement, lease was expired by 31.05.2002 by afflux of time under Section 111 (a) of T.P.Act and rent is Rs.2,750/- per month.
16. According to plaintiff, lease was expired by 31.05.2002 and defendant must vacate the premises by 01.06.2002, however, defendant failed to vacate the premises. Hence, the plaintiff issued Ex.A-1 notice directing the defendant to vacate the premises within 30 days.
17. Issuance of notice is only to communicate the intention of the owner and object of notice is to give sufficient time to vacate the premises. Under Sec 108 (q) of the T.P.Act on determination of lease, the lessee is bound to put the lessor into possession of 6 leased property. In the case on hand according to landlord lease was expired by efflux of time i.e. by 31-5-2002. Tenant in the written statement admits that lease was expired by 31-5-2002. However, pleaded he is tenant holding over.
18. Whether acceptance of rents after issuance of quit notice would amounts to waiver and renewal of lease?
19. Section 113 of T.P.Act deals with waiver of notice to quit. It is appropriate to extract the same:
Section 113 - Waiver notice to quit A notice given under section 111, clause (h) is waived, with the express or implied consent of the person to whom it is given, by any act on the part of the person giving it showing an intention to treat the lease as subsisting.
Illustration (a) A, the lessor, gives B, the lessee, notice to quit the property leased. The notice expires. B tenders and A accepts, rent which has become due in respect of the property since the expiration of the notice. The notice is waived.
20. In Sarup Singh Gupta vs. S. Jagdish Singh and Ors.1, the Hon'ble Apex Court held thus:
"6. ... ... A mere perusal of Section 113 leaves no room for doubt that in a given case, a notice given under Section 111, Clause (h), may be treated as having been waived, but the necessary condition is that there must be some act on the part of the person giving the notice evincing an intention to treat the lease as subsisting. Of course, the express or implied consent of the person to whom such notice is given must also be established. The question as to whether the person giving the notice has by his act shown an intention to treat the lease as subsisting is essentially a question of fact. In reaching a conclusion on this aspect of the matter, the Court must consider all relevant facts and circumstances, and the mere fact that rent has been tendered and accepted, cannot be determinative.
7. A somewhat similar situation arose in the case reported in AIR 2005 SC 2905, that was a case where the landlord accepted rent even on expiry of the period of lease. A submission was urged on behalf of the tenant in that case that Section 116, Transfer of Property Act was attracted and there was a deemed renewal, of the lease. Negativing the contention, this Court observed that mere acceptance of 1 AIR 2006 SC 1734 7 rent for the subsequent months in which the lessee continued to occupy the premise even, after the expiry of the period of the lease, cannot be said to be a conduct signifying his assent to the continuing of the lease even after the expiry of the lease period. Their Lordships noticed the conditions incorporated in the agreement itself, which provided for renewal of the lease and held that those conditions having not been fulfilled, the mere acceptance of rent after expiry of period of lease did not signify assent to the continuance of the lease.
8. ... ... two notices to quit were given on 10th February, 1979 and 17th March, 1979. The suit was filed on 2nd June, 1979. The tenant offered and the landlord accepted the rent for the months of April, May and thereafter. The question is whether this by itself constitute an act on the part of the landlord showing an Intention to treat the lease as subsisting.
In our view, mere acceptance of rent did not by itself constituted an act of the nature envisaged by Section 113, Transfer of Property Act showing an Intention to treat the lease as subsisting. The fact remains that even after accepting the rent tendered, the landlord did file a suit for eviction, and even while prosecuting the suit accepted rent which was being paid to him by the tenant It cannot, therefore, be said that by accepting rent, he intended to waive the notice to quit and to treat the lease as subsisting. We cannot ignore the fact that in any event, even if rent was neither tendered nor accepted, the landlord in the event of success would be entitled to the payment of the arrears of rent. To avoid any controversy, in the event of termination of lease the practice followed by courts is to permit the landlord to receive each month by way of compensation for the use and occupation of the premises, an amount equal to the monthly rent payable by the tenant. It cannot, therefore, be said that mere acceptance of rent amounts to waiver of notice to quit unless there be any other evidence to prove or establish that the landlord so intended. In the instant case, we find no other fact or circumstance to support the plea of waiver."
21. In view of expressions of the Hon'ble Apex Court, the contention of learned counsel for appellant that after issuance of quit notice under Ex.A-1 landlord accepted the rents and hence, lease is deemed to be renewed, falls to ground. Even acceptance of rent does not constitute waiver. In fact, the findings were recorded by the Courts below that no evidence was let in by the defendant regarding payment of rents after quit notice. The Courts below also concluded that the plaintiff refused to receive the rents sent 8 by the defendant. Hence, this Court is the view that the lease was neither renewed nor plaintiff waived the notice.
22. Going by the facts of the case, lease was expired on 31.05.2022. Defendant also accepted the same in the written statement that the lease was expired on 31.05.2002. Once lease was expired, there is no need to issue notice under Section 106 of T.P.Act, again determining the lease. A distinction should be drawn when the tenant is continuing in possession after determining the lease without the consent of landlord and the tenant doing so, with the consent of landlord. If a person is continuing in the possession of premises without the consent of landlord, he will be tenant at sufferance and with the consent of landlord, he is tenant holding over or tenant at Will.
23. The Hon'ble Apex Court in Kewal Chand Mimani (d) by Lrs. and Ors. Vs. Respondent: S.K. Sen and Ors. 2 held that there is a subtle difference between a tenant holding over and a tenant-at- sufferance. Holding over stands equivalent to the retention of possession after determination of lease, but with the consent of the landlord, whereas, on similar circumstance if the possession is without the consent of the landlord then the same stands out to be a tenant-at-sufferance.
24. The High Court of Karnataka in M/s Sudarshan Trading Co. Ltd. Vs. L.D'Sauza3, pointed out that:
"Tenancy by holding-over is a creature of bilateral, consensual act and does not come into existence by a mere unilateral intendment or declaration of one of the parties. In the absence of any evidence 2 AIR 2001 SC 2569 3 AIR1984 Kant 214 = MANU/KA/0206/1984 9 that the plaintiff or her husband have agreed to receive the rent after the expiry of the lease on 30-11-1984, the fact that the defendant had credited some amounts to the plaintiff's bank account unilaterally does not create a tenancy by holding-over.
25. In the case on hand, the Courts below evaluated the evidence on record and came to conclusion that no evidence was let in by the defendant regarding payment of monthly rents. Hence, the contention of appellant/tenant that he is tenant holding over falls to ground.
26. In the written statement filed by the defendant, nothing was mentioned regarding payment of rents after quit notice, except pleading that he is tenant holding over. Even if landlord accepted rent, in view of observations of the Hon'ble Apex Court, mere acceptance of rents after quit notice, doesn't amount to deemed renewal of lease or waiver of quit notice. Both the Courts below recorded findings after evaluation the evidence on record.
27. In Hero Vinoth Vs. Seshammal4, the Hon'ble Apex Court held that:
"19. It is not within the domain of the High Court to investigate the grounds on which the findings were arrived at, by the last court of fact, being the first appellate court. It is true that the lower appellate court should not ordinarily reject witnesses accepted by the trial court in respect of credibility but even where it has rejected the witnesses accepted by the trial court, the same is no ground for interference in second appeal when it is found that the appellate court has given satisfactory reasons for doing so. In a case where from a given set of circumstances two inferences of fact are possible, one drawn by the lower appellate court will not 4 AIR 2009 SC 1481 10 be interfered by the High Court in second appeal. Adopting any other approach is not permissible. The High Court will, however, interfere where it is found that the conclusions drawn by the lower appellate court were erroneous being contrary to the mandatory provisions of law applicable or its settled position on the basis of pronouncements made by the Apex Court, or was based upon inadmissible evidence or arrived at by ignoring material evidence.
It was furthermore held:
23. To be "substantial" a question of law must be debatable, not previously settled by law of the land or a binding precedent, and must have a material bearing on the decision of the case, if answered either way, insofar as the rights of the parties before it are concerned. To be a question of law "involving in the case" there must be first a foundation for it laid in the pleadings and the question should emerge from the sustainable findings of fact arrived at by court of facts and it must be necessary to decide that question of law for a just and proper decision of the case. An entirely new point raised for the first time before the High Court is not a question involved in the case unless it goes to the root of the matter. It will, therefore, depend on the facts and circumstance of each case whether a question of law is a substantial one and involved in the case, or not; the paramount overall consideration being the need for striking a judicious balance between the indispensable obligation to do justice at all stages and impelling necessity of avoiding prolongation in the life of any lis.
(See Santosh Hazari v. Purushottam Tiwari
MANU/SC/0091/2001).
24. The principles relating to Section 100 CPC, relevant for this case, may be summerized thus:-
(i) ...
(ii) The High Court should be satisfied that the case involves a substantial question of law, and not a mere 11 question of law. A question of law having a material bearing on the decision of the case (that is, a question, answer to which affects the rights of parties to the suit) will be a substantial question of law, if it is not covered by any specific provisions of law or settled legal principle emerging from binding precedents, and, involves a debatable legal issue. A substantial question of law will also arise in a contrary situation, where the legal position is clear, either on account of express provisions of law or binding precedents, but the court below has decided the matter, either ignoring or acting contrary to such legal principle. In the second type of cases, the substantial question of law arises not because the law is still debatable, but because the decision rendered on a material question, violates the settled position of law."
28. The findings of fact recorded by the Courts below neither perverse nor misreading of document or non-consideration of evidence on record. Thus, this Court is of view of that no questions of law much less substantial questions of law involved in the above appeal warring interference under Sec 100 CPC. Hence, the appeal is liable to be dismissed, however, without costs.
29. Since the appellant has been carrying business in the schedule premises, this Court deems it appropriate to grant time to vacate the premises upto 31.01.2023. In fact, counsel for the respondent also agreed to grant time till 31-01-2023. The appellant shall file an undertaking before the Trial Court (executing court) within two weeks from the date of judgement regarding vacating the schedule premises by 31.01.2023. In case, if the appellant fails to file such an undertaking before the Trial Court (executing court), it is open to the respondents to execute the decree without reference to the time granted by this Court.
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30. Since the lease was expired by efflux of time on 31.05.2002 and appellant is continuing in possession of the property, landlord is entitled to damages but not rent for use and occupation. Appellant has been using the schedule property as lodging and it is commercial locality. Hence, this Court feels it appropriate to direct the appellant to pay an amount of Rs.10,000/- (Rupees ten thousand only) per month from 01.09.2022 to 31.01.2023 to the respondents on or before 10th every succeeding month and before 31.01.2023. Fixing the damages by this court is tentative arrangement but not final. Since this Court granted time to the appellant to vacate the premises keeping in view of the expressions in Atma Ram Properties (P) Ltd Vs Federal Motors Private Limited5, this Court is fixing damages tentatively at Rs. 10,000/- per month. In case of failure of appellant to pay the damages fixed by this Court, it is open the landlords to execute the decree without reference to the time granted by this Court.
31. Accordingly, the second appeal is dismissed. No order as to costs.
As a sequel, all the pending miscellaneous applications shall stand closed.
_________________________________ JUSTICE SUBBA REDDY SATTI 1st September, 2022 PVD 5 (2005) 1 SCC 705