Andhra HC (Pre-Telangana)
R.V. Bhupal Prasad vs Saleha Begum Alias Shehensha Begum And ... on 3 August, 2001
Equivalent citations: 2001(5)ALT770
JUDGMENT Cys, J.
1. First defendant in O.S.538 of 1985 on the file of the Court of the III Additional Senior Civil Judge, Vijayawada is the appellant in this appeal.
2. First respondent filed the suit against the appellant and respondents 2 to 18 for recovery of possession of Navarang Theatre at Congress Office Road, Governorpet, Vijayawada, hereinafter called the suit property, and for damages and mesne profits, on the ground that the agreed period of lease in respect of the suit property between her, the appellant and respondents 2 to 18 under Ex.A.1 lease deed came to an end due to efflux of time. Appellant contested the suit contending that respondents 2 to 18 have no interest in the suit property, and that 1st respondent having initiated proceedings under the Rent Control Act cannot invoke the jurisdiction of the Civil Court for eviction. During the fag end of the proceedings before the trial Court, he filed two additional written statements on 13.9.1997 and 4.2.1999 contending that first respondent (plaintiff) did not acquire title to the suit property and that he cannot be evicted in view of Clause 22 of Ex.A.1 lease deed, and that the suit is not maintainable in view of Ex.B.4 notice dated 20.5.1989 issued by the 1st respondent. Defendants 2 and 4 who filed separate written statements, did not participate in the trial of the suit.
3. 1st respondent examined one witness on her behalf as P.W.1 and marked Ex.A.1 to A.108. Appellant examined himself only as R.W.1 and marked Exs.B.1 to B.11 on his behalf. The learned Trial Judge, by his judgment dated 30.4.1999 passed a decree of eviction against appellant and respondents 2 to 18 and a decree for recovery of Rs.40,250/- towards arrears of rent from 1.1.1984 to 30.11.1985, and for an amount at the rate of Rs.100/- per day from 1.12.1995 till date of delivery of possession of the suit property to the 1st respondent against the appellant only. Respondents 2 to 18 did not prefer an appeal against the decree of eviction passed against them. So the decree of eviction passed against them by the trial Court became final as against them. Aggrieved by the decree of eviction and recovery of money passed against him appellant filed A.S.No.1620 of 1999, and aggrieved by the non-awarding of mesne profits subsequent to the filing of the suit at the market rate 1st respondent filed A.S.1917 of 1999 in this Court. The learned single Judge by a common judgment dated 29.12.2000 disposed of both the appeals, dismissing the appeal filed by the appellant and confirming the order of eviction passed against him by the trial Court and allowed the appeal preferred by the 1st respondent, and granted a decree for mesne profits from 1.1.1984 till date of delivery of possession to be determined on a separate application. Hence this Letters Patent Appeal by the 1st defendant.
4. The points for consideration in this appeal are:
(1) Whether the 1st respondent is entitled to seek eviction of the appellant and (2) To what amount of 'rent' or 'damages' is the 1st respondent entitled to?
POINT NO.1:
5. The main contention of Sri Muvva Chandra Sekhar Rao, learned counsel for the appellant is that the trial Court, and the learned single Judge also, did not properly appreciated the contention of the appellant that after the expiry of the stipulated period of lease of 20 years, by virtue of Clause 22 of Ex.A.1 the appellant became a permanent lessee at the rate of Rs.300/- per month. Relying on the observation of the Supreme Court in TAYABALI v. AHSAN and Co. 1 he contended that since 1st respondent in para 21 of the plaint claimed "arrears of rent for the period from 1.1.1984 to 30.11.1985 at Rs.3,000/- per month" and "future profits" for the subsequent period, it should be taken that 1st respondent knows the difference between 'rent' and 'damages' and so it is clear that 1st respondent treated the appellant as her tenant and claimed 'rent' from him from 1.1.1984 to 30.11.1985, and so it is clear that appellant is a tenant 'holding over' in respect of the suit property. His other contention is that since 1st respondent issued the original of Ex.B.4 'notice to quit' dated 20.5.1989, subsequent to the filing of the suit, as per Section 113 of the Transfer of Property Act (T.P. Act, for short) she waived the earlier notice to quit, issued by her under Ex.A.8 and also the suit, by relying on MANICKLAL DEY v. KADAMBANI 2, and RAMDAYAL v. JAWALA PRASAD 3. The contention of Sri Y.N. Lohita, learned counsel for 1st respondent, is that since the suit is filed on the ground that the stipulated period of lease expired by efflux of time, and since 1st respondent never agreed to continue the tenancy of the appellant and had never treated him as her tenant in respect of the suit property after expiry of the period of lease under Ex.A.1 appellant is not a tenant 'holding over' and so the question of issuing a quit notice before filing of the suit does not arise and contended that 1st respondent issued Ex.A.8 notice only by way of abundant caution, but not treating the appellant and his cotenants as 'tenants holding over' and contended that in any event Ex.A.61 judgment of this Court in W.A.No.1118 and 1183 of 1992 dated 3.9.1993 and Ex.A.63, order of the Supreme Court in C.A.Nos.7701-7702/1995 dated 11.8.1985 (reported in R.V.BHUPAL PRASAD v. STATE OF A.P.4, operate as res judicata. In reply, the contention of Sri Muvva Chandra Sekhar Rao is that since the plea of res-judicata which is a mixed question of fact and law was not raised in the trial Court 1st respondent cannot be permitted to raise that plea at this stage.
6. The first question to be answered is whether the use of the word 'rent' in clause 22 of Ex.A.1 and also the valuation para of the plaint where 'arrears of rent at Rs.3000/- per month' was claimed by the 1st respondent, make the appellant a 'tenant' or 'tenant holding over' of the 1st respondent in respect of the suit property, after the expiry of lease period stipulated in Ex.A.1. A constitution of Bench of the Supreme Court in STATE OF PUNJAB v. BRITISH INDIA CORORATION 5 while dealing with the meaning of the word 'rent' held:
"the word 'rent' in its wider sense means any payment made for the use of land or buildings and thus includes the payment by a licensee in respect of the use and occupation of any land or building. In its narrower sense it means payment made by tenant to landlord for property demised to him"
It is thus clear that the wider meaning of the word 'rent' is 'payment for use of the land or building', and in the narrow sense it is payment 'by a tenant to the land lord' in respect of a demised premises. RAMAMURTY SUBUDHI v. GOPINATH 6 is a case where in a suit for ejectment of a tenant a compromise decree was passed enabling the landlord executing the decree in case the tenant fails to pay 'rent' for three months. Thereafter when the defendant/tenant committed default, the plaintiff/landlord filed a petition to execute the decree. On behalf of the defendant /tenant it was contended that there was a further lease between the parties under the compromise as the word 'rent' is used and so the defendant/tenant cannot be evicted in execution of the said compromise decree. Repelling the said contention Supreme Court held that merely because the word 'rent' is used in the compromise entered into during the pendency of the appeal it cannot be said that plaintiff/landlord agreed to create a fresh lease and held that the fact he brought the suit for ejectment showed that that his intention was to eject the judgment debtor by filing that suit. In H.S.RIKHY v. NEW DELHI MUNICIPALITY 7 also the Supreme Court held that the mere use of the word 'rent' in the receipts passed by a Municipality, to the occupiers of the shop constructed by it, by itself does not establish the a relationship of 'landlord' and 'tenant' between the municipality and the occupiers of its property, and that it would not preclude the landlord from pleading that there is no relationship of landlord and tenant, and that the question whether there is relationship of 'landlord' and 'tenant' or not depends on the facts of each case.
7. With the above background the averments in the plaint with regard to the claim of the 1st respondent for recovery of 'rent' from 1.1.1984 to 30.11.1985 and future profits for the subsequent period, has to be examined. It is well known that the case of a party should be known by reading the pleadings as a whole but not by dissecting the pleadings. In para 14 of the plaint, 1st respondent alleged:
"having regard to the prevailing rents to the theatre buildings, the plaintiff reserves her right to claim rent at the prevailing market rate. However, the plaintiff for the present limits her claim only for the rent of Rs.3,000/- p.m. as stipulated in the lease deed for the period from 1.1.1984 to 30.11.1985 to Rs.69,000/- without prejudice to her right to claim future mesne profits at the prevailing market rate which the plaintiff estimates between Rs.50,000/- and Rs.1,40,000/- per month and which amount the defendants have received"
and accordingly made the claim for recovery of Rs.40,250/-, after deducting Rs.28,750/- deposited into court by the appellant, as rent from 1.1.1984 to 30.11.1985. If we read this para with the valuation para i.e. para 21 of the plaint, which is strongly relied on by Sri Chandra Sekhara Rao, it is clear that the 1st defendant did not use the word 'rent' in the sense that the appellant is her 'tenant' in respect of the suit property, but claimed that amount only as damages as stipulated in clause 22 of Ex.A.1.
8. In TAYABALI case (1 supra ) the landlord issued a notice dated 13.6.1956 to the tenant claiming possession and Rs.1,826/- as arrears of rent from 1.7.1953. After receiving the said notice the tenant paid the amount claimed by the landlord, but did not vacate the premises and committed default in payment of rent for the subsequent period. Therefore the landlord issued another notice dated 18.10.1957, to the defendant describing him as a 'monthly tenant' on the ground of default and also on the ground that he requires it for his personal occupation. On 30.10.1957 the tenant tendered to the landlord the full amount of arrears due by way of cheque, which was returned by the landlord to the tenant. On 31.3.1958, the landlord filed a suit against the tenant for ejectment and for recovery of arrears of rent from April, 1955 to November, 1957 and compensation for use and occupation from December 1957 to February, 1958. In those circumstances, the Supreme Court held that the landlord accepting the amount sent by the tenant after 1st notice, and his issuing the 2nd notice treating him as 'monthly tenant' and claiming 'rent' from April, 1955 to November, 1957 and 'damages' from December, 1957 establishes that the landlord (plaintiff) was fully alive to the distinction between 'rent' and 'damages for use and occupation', and held that since plaintiff treated the second notice only as the effective notice, he is not entitled to a decree of ejectment. In this case as stated above, in para 14 of the plaint 1st respondent limited her claim to Rs.100/- per day or Rs.3000/- per month from 1.1.1984 to 30.11.1985, as per clause 22 of Ex.A.1 and claimed higher amount as damages from the date of suit. Therefore, the mere use of the word 'rent' in para 21 of the plaint, by itself does not establish that 1st respondent treated the appellant as her 'tenant' after expiry of the stipulated period in Ex.A.1.
9. Clause 22 of Ex.A.1, which reads as under
"That the LESSEES shall quit the schedule properties on expiry of the lease period and deliver possession of the entire demised properties to the Lessor including furniture installed by the LESSEES and other improvements, alterations, constructions, reconstructions and additions affected by the LESSEES if any in good condition subject only to the charges caused by reasonable wear and tare and irresistible force; that in default of so quitting the premises, the LESSEES shall pay enhanced rent and damages at the rate of Rs.100/- per a day, till they are evicted by the provisions of law by the LESSOR" .
was interpreted in Ex.A.61 by a Division Bench of this Court and the Supreme Court in Exs.A.63. The intepretation of the above clause in Ex.A.63 would be a binding precedent, if not RES JUDICATA because in ANJANEYULU v. RAMAIAH 8 a full Bench of this Court held that interpretation of a material document in a prior proceeding between the same parties even if does not operate as res judicata would be a binding judicial precedent in a subsequent proceeding between the parties based on that document. In Ex.A.63, at pages 20 and 21 the Supreme Court while a reference to clauses 22 and 23 of Ex.A.1 held:
"A reading of these two covenants clearly manifests the intention of the parties that after the expiry of the lease he is enjoined to deliver possession of the demised premises to the landlady. After the expiry of the lease, he is treated to be in unlawful possession, since he is required to pay damages for use and occupation at the rate of Rs.100/- per day till he is evicted in due course of law. Thereby it is clear that his possession was not treated to be juridical possession but only unlawful. He is required to pay damages for use and occupation. Clause 23 indicates that on expiry of the lease, the lessees should sign all necessary applications and papers and cooperate with the lessor to obtain transfer of all the licences. That would clearly indicate the intention, namely, that the appellant shall remain in possession only for the period of twenty years and thereafter his possession becomes unlawful"
Appellant and 1st respondent who are parties to Ex.A.3 proceedings before the Supreme Court, are bound by the said interpretation, and the above decision is also binding on us in view of Article 141 of the Constitution of India. In view thereof it is therefore really not necessary to consider M.C.CHOCKALINGAM v. V.MANIKAVASAGAM9, SULOCHANAMMA V. NARAYANAN NAIR 10 relied on by Sri Y.N.Lohita, and NEELAKANTA PILLAI MATHEVAN PILLAI v,. NEELAMMA PILLAI 11, CHARANDAS v. M/S THAKUR DASS MAST RAM 12, DEVARAPU NARASIMHA RAO v. YERRABOTHULA PEDA VENKAIAH13, IYATTERI SHANMUGAN v. PATHIYOTTIL RADHA 14 relied on by Sri Muvva Chandra Sekhar Rao on the question of RES JUDICATA. In view thereof the contention of Sri Muvva Chandrasekhara Rao that clause 22 of Ex.A.1 created a permanent tenancy has no force and hence is rejected.
10. Placing strong reliance on BHAVANJI v. HIMMATLAL15 KAI KHUSHROO BEZONJEE v. BAJ JERBAI HIRJI BHOY16 and BADRILAL v. MUNICIPAL CORPORATION17 Sri Chandrasekhara Rao contended that a tenant at sufferance can be converted or treated by the landlord as a 'tenant holding over' and that 1st respondent by issuing Ex.B.4 treated appellant as 'a tenant holding over' by strongly relying on paras 8 and 9 thereof. Before deciding the merit of the said contention it is necessary to keep in view certain facts. For Ex.A.2 notice dated 9.1.1984 issued by the 1st respondent, appellant did not send a reply. But, respondents 4 and 5 sent a reply under Ex.A.3. With almost identical allegations as in Ex.A.2, 1st respondent sent another notice Ex.A.4 dated 9.4.1985 to the appellant and his cotenants. In that notice also she did not claim rent, but demanded possession, informing that on failure to vacate she would file a suit for recovery of damages for wrongful use and occupation at the rate of Rs.15000/- per week from the date when their contractual tenancy came to end by afflux of time on 31.12.1983, till the date of delivery. For that notice also appellant did not send a reply. But respondents 3 to 9 sent a reply under Ex.A.5. Subsequently, 1st respondent sent Ex.A.6 notice dated 4.5.1985 with identical allegations as in Ex.A.5. For Ex.A.6, appellant sent Ex.A.7 telegram stating that he would send a detailed reply. But as seen from the documentary evidence adduced, no reply was sent. Appellant as D.W.1 also did not state that he sent a reply to Ex.A.6 notice. So it is clear that appellant did not send a reply even to Ex.A.6 notice. Finally, before filing the suit, 1st respondent sent Ex.A.8 notice dated 9.7.1985 with almost identical allegation as in Ex.A.6 to the appellant and the other respondents, which was received by all of them. Long prior to the institution of the suit 1st respondent filed R.C.C.No.120 of 1977 against the appellant and his co-tenants, under the provisions of the Rent Control Act, seeking their eviction on the ground of wilful default and some other grounds and obtained an order of eviction. Appellant and others filed appeal in R.C.A.No.95 of 1980 against the said order of eviction. During the pendency of the appeal 1st respondent filed two other petitions R.C.C.No.104 and 229 of 1980 seeking eviction of the appellant and his cotenants on the grounds of waste and damage to the suit property. During pendency of R.C.A.No.95 of 1980, after Section 32(b) of the Rent Control Act was struck down by the Supreme Court in MOTOR GENERAL TRADERS v. STATE OF A.P.18, Government G.O.Ms.No.636 exempting the buildings fetching rent of more than one thousand rupees per month from the provisions of the Rent Control Act. In view thereof R.C.A.No.95 of 1980 was allowed. 1st respondent who filed C.R.P.3527 of 1991 against the order in R.C.a.No.95 of 1980, withdrew the Revision and the other two R.C.Cs. filed by her, because the suit property which was earlier governed by the Rent Control Act, were subsequently taken out of the purview of the provisions of the Rent Control Act by virtue of G.O.Ms.No.636 dated 29.12.1983. It is thus seen that in her endeavour to get back possession of the suit property 1st respondent left no stone unturned. So it is difficult to believe that 1st respondent would, after filing of the suit, again think of creating a fresh tenancy in favour of the appellant. In KAI KUSHROO case (16 supra) which is a leading case on the question of creation of fresh tenancy it was held that acceptance or withdrawing rents by landlord in respect of buildings covered by Rent Control legislation would not a create new tenancy, and it is specifically held:
"the assent of the landlord which is founded on acceptance of rent must be acceptance of rent as such and in clear recognition of tenancy right assented by the person who pays it"
11. In SHANTI DEVI v. AMAL KUMAR 19 the Supreme Court held that when lessor seek possession of the demised premises from the lessee under Section 111(a) of Transfer of Property Act on the ground that the period of lease expired by efflux of time, notice to quit under Section 106 of the Transfer of Property Act is not necessary. In BHAVANJI v. HIMMATLAL 20 the Supreme Court considering the status of a tenant continuing in possession of the property under his tenancy even after the expiry of the period of lease held follows in para 9 at page 821:
"The act of holding over after the expiration of the term does not create a tenancy of any kind. If a tenant remains in possession after the determination of the lease, the common law rule is that he is a tenant on sufferance. As distinction should be drawn between a tenant continuing in possession after the determination of the term with the consent of the landlord and a tenant doing so without his consent. The former (sic) (latter?) is a tenant at sufferance in English law and the latter (sic) (former?) a tenant holding over or a tenant at will. In view of the concluding words of Section 116 of the Transfer of Property Act, a lessee holding over is in a better position than a tenant at will. The assent of the landlord to the continuance of possession after the determination of the tenancy will create a new tenancy. What the section contemplates is that on one side there should be an offer of taking a new lease evidenced by the lessee or sub-lessee remaining in possession of the property after his term was over and on the other side there must be a definite consent to the continuance of possession by the landlord expressed by acceptance of rent or otherwise".
12. Following he above decision a Division Bench of the Karnataka High Court in M/s SUDERSHAN TRADING CO LTD v. M/s L.D' SOUZA 21 held that no notice is required to terminate a 'tenancy at sufferance' because there is no tenancy at all in the strict sense. Therefore, if the appellant is a 'tenant at sufferance' no notice to quit is necessary to terminate his tenancy.
13. Section 111 of the Transfer Property Act lays down the various modes or methods in which a lease can be determined. Sections 112 and 113 of the Transfer of Property Act deal respectively with waiver in respect of the modes of termination of lease covered by clauses (g) and (h) of Section 111 of the said Act. There is no provision similar to Sections 112 and 113 in respect of other modes of termination of lease covered by clauses (a) to (f) of Section 111 of the Transfer of Property Act which impliedly means that there can be no waiver of termination of lease in respect of modes covered by clauses (a) to (f) of Section 111 of the Transfer of Property Act. In this case the suit is filed on the ground that period of lease expired by efflux of time, which falls under Section 111(a) of the Transfer of Property Act. Therefore, the fact that 1st respondent filed petitions in the R.C.A. and C.R.P seeking a direction to the appellant to deposit arrears of 'rent' is not a ground for holding that the 1st respondent recognized the status of the appellant as a tenant in respect of the suit property, more so because in GANGA DATT MURARKA v. KARIK CHANDRA DAS 22 it was held that acceptance of amounts from a tenant in respect of a building covered by the Rent Control Act does not amount to acceptance of rent from a lessee within the meaning of Sec.116 of the Transfer of Property Act. Therefore, the fact that 1st respondent who was pursuing her remedy under the Rent Control Act, and filed petitions seeking a direction to deposit arrears of rent under Section 11 of the Rent Control Act, does not amount to acceptance or demanding 'rent' as contemplated in Section 116 of the T.P. Act, to create a right in favour of the appellant to claim fresh tenancy. In fact in this case appellant, before filing his additional written statement, did not make any assertion that he became a tenant 'holding over' because of the 1st respondent filing a petition seeking a direction to the appellant to deposit 'rent'.
14. In the Letters Patent Appeal the applicant added a new string to the bow of attack of the confirming judgment that because of Ex.B.4 notice issued by her 1st respondent waived the claim in the suit, by virtue of Section 113 of the Transfer of Property Act, which reads as follows.
"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 person giving it showing an intention to treat the lease as subsisting Illustrations
(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.
(b) A, the lessor, gives B, the lessee, notice to quit the property leased. The notice expires, and B remains in possession. A gives to B as lessee a second notice to quit. The first notice is waived"
The said section applies to cases of termination of tenancy covered by 111(h) of the Transfer of Property Act i.e., by issuing a notice to quit. It does not deal with applies to cases covered by clause (a) of Section 111 of Transfer of Property Act which deals with cases of termination of tenancy by efflux of time. For that reason alone the defence of waiver set up by the appellant is liable to be rejected. Even otherwise there seems to be no merit in the said contention for the reasons to be mentioned below. Illustration (a) to Section 113 of Transfer of Property Act does not apply to this case. Appellant is relying only on illustration (b) of the said Section.
15. A Full Bench of Punjab and Haryana High Court in SHIVAJIT SINGH v. CHARANSINGH 23 after quoting the observations of Kania, J in NAVITLAL v. BABU RAO24 reading "The structure of Section 113 is entirely different. It is expressly provided that there must be the consent of the person to whom property was given on lease to bring about a waiver of the notice to quit. On the side of the landlord it is provided that he must do an act showing an intention to treat the lease as subsisting. It is, therefore, clear that under Section 113 there has to be an agreement between the two parties, and the waiver of a notice to quit cannot be brought about by an action either of the tenant alone or of the landlord alone Stone, C.J. has this to say on the point -
and, in my judgment, there is a fundamental difference between a waiver of a forfeiture, which is a matter which can be done at the election of the landlord alone, and what is inaccurately referred to as the waiver of a notice to quit which can only proceed on the basis that the landlord and the tenant are ad idem in making a new agreement"
held as follows at page 107, para 7:
"..... a closer analysis of illustration (b) relied upon will show that it can hardly advance the case of the appellant. The crucial thing in the sentence 'a gives to B as Lessee a second notice to quit' appears to be the word as. It is only if the lessor gives the second notice recognizing the lessee as such that illustration B would come into play. It is the legal character of the person to whom the second notice is given which is of significance. If the notice purports to be given to a trespasser, or a person in wrongful occupation or one holding over after the due termination of the lease, then it is not a notice as a lessee and consequently illustration B would not be attracted".
In essence for waiver contemplated by Section 113 of Transfer of Property Act to come in play there must be 'consensus ad idem' between the parties. If second notice is issued treating the lessee only as a 'tenant at sufferance', but not as a 'tenant holding over' question of waiver does not arise. In this case the parties were never at 'ad idem' in respect of continuance of the lease. What 1st respondent demanded in Ex.B.4 notice is 'damages' at Rs.100/- per day, as stipulated in Ex.A.1, but not as 'rent' in the narrower sense of the word. As stated above the Supreme Court in Ex.A.63 held that the amount of Rs.100/- per day stipulated in Ex.a.1 is damages, but not rent. Therefore, it is clear that even as per Ex.B.4 also 1st respondent did not treat the appellant as her tenant and did not claim or accept 'rent' from her.
16. In MANIKLAL DEY case (2 supra) strongly relied on by the learned counsel for appellant, the learned Judge, on the basis that there is no proviso like second proviso to Section 112, which lays down that acceptance of rent after institution of a suit for ejectment on the ground of forfeiture covered by clause (g) of Section 111 of T.P. Act, would not amount to waiver, held:
"by accepting the rent, the plaintiff, in my opinion, showed the intention to treat the lease as subsisting and acceptance of rent was waiver of the notice to quit, notwithstanding the fact that a suit had already been filed for the purpose of ejecting the tenant".
A close reading of the said judgment shows that the learned judges held that there was waiver in that case because the landlord accepted 'rent' treating the lease as subsisting. At the cost of repetition it has to be again stated that neither in Ex.B.34 nor in any other proceedings subsequent to the institution of the suit did the 1st respondent treat the lease as subsisting. In fact in Ex.B.4, 1st respondent after expressing her anguish and lamenting that inspite of expiry of period of lease, and her initiating several proceedings they did not vacate the suit property demanded the appellant and his co tenants to vacate the suit property after paying 'damages' at the rate of Rs.100/- per day as stipulated in Ex.A.1. All the efforts of Sri Chandrasekhara Rao to persuade us to hold that 1st respondent claiming 'rent' from the appellant amounts to recognizing his status as a 'tenant holding over', but not as a 'tenant at sufferance' is but an exercise in futility, because in para 9 of his written statement appellant clearly alleged "amount of Rs.100/- per day claimed by the plaintiff by way of damages is excessive and penal".
Which shows that appellant himself is aware and fully alive to the fact Rs.100/- per day claimed by the 1st respondent is damages, but not 'rent'.
17. Ex.B.4 is dated 20.5.1989. W.P.No.16900 of 1986, though filed earlier to Ex.B.4, was disposed of on 15.9.1992. W.A.No.1118 of 1992 filed by the appellant and W.A.No.1183 of 1992 filed by 1st respondent were disposed of on 3.9.1993 as seen from Ex.A.61, and the appeal filed by the appellant before the Supreme Court was disposed of on 11.8.1995. Therefore, it is clear that though the plea now raised that by issuing Ex.B.4 1st respondent waived her right to recover possession was very much available to him, appellant did not take such plea either in W.P.No.16900 of 1986 or W.A.No.1118 of 1992 or before the Supreme Court in C.A.No.7701 and 7702 of 1995, and came up with that plea by way of filing an additional written statement after he got adverse in the writ proceedings and appeals for the orders passed therein. The failure of the appellant to take such plea in earlier proceedings operates as constructive res judicata as per explanation IV of Section 11 C.P.C. Therefore appellant is precluded from raising such plea now.
18. In MANIKLAL DEY case (2 supra) relied on by Sri Chandrasekhara Rao, landlord withdrawing the rent deposited by the defendant-tenant into court was construed as waiver. The said decision was followed in RAMDAYAL case (3 supra). Sri Chandrasekhara Rao also placed strong reliance on PADAM CHAND GARG v. ATAR SIGNH RIKSHAWALA25 which is a suit for ejectment and arrears of rent decreed by the trial Court and the appeal filed by the tenant was allowed. During pendency of the second appeal filed by him landlord sent a notice to the tenant informing him that he would withdraw the second appeal if he (tenant) were to pay the rent due till then, within 30 days. In those circumstances the learned judge held that there was waiver. The facts in that case are entirely different from the facts of this case. The facts in YUSUFJI SULEMANJI KHATRI v. MAHAMADBHAI AMIRBHAI MALEK26 strongly relied on by Sri Chandra Sekhar Rao are entirely different from the facts of this case. In that case the tenancy was at Rs.35/- per month. On 18.1.1979 landlord sent at notice to the tenant demanding Rs.435/- towards arrears of rent from 1.12.1977 to 31.12.1997 and did not take any action, but sent another notice claiming Rs.910/- as arrears of rent from 1.12.1977 to 31.1.1980. Within a period of one month of service of 2nd notice, tenant sent Rs.945/-, i.e., Rs.35/- more than the amount demanded by the landlord in the 2nd notice which was accepted by the landlord on 10.3.1980, i.e., within the statutory period of one month under Bombay Rents, Hotel and Lodging (House Rates Control) Act (Act 57 of 1947). Thereafter, landlord filed a suit for eviction on the ground that the tenant was in arrears of rent for more than six months, and also on the ground of his reasonable and bona fide requirement for personal use. The trial Court and Appellate Court held against the landlord on the ground of bona fide requirement, and accepted the contention of the landlord that the tenant was in arrears of rent for six months prior to the first notice and ordered his eviction. On revision by the tenant, the Gujarat High Court held that the non-action on the part of the landlord for over one year after the first notice, and his serving a second notice treating him as a tenant as such, and not as a trespasser or the like and demanding arrears of rent and accepting the rents sent by the tenant by money order, would amount to waiver of the 1st notice and allowed the revision and dismissed the suit filed by the landlord.
19. The Calcutta High Court in MAHADEVO PRASAD v. SULEKHA SARKAR 27 did not follow MANIKLAL DEY case (2 supra) and observed as follows (at page 406):
"The decision of Buckland J in AIR 1926 CAL 763; where he inferred waiver of the notice to quit from the landlord's withdrawal of deposit from the Rent Controller did not take into consideration the various aspects from which this question of waiver ought to be approached and considered and its criticism in the case of - 'Navnitlal Chunilal V. Baburao, AIR 1945 Bom 132 at p.134 (J) of the Report is not altogether unjustified. Lord Mansfield's observation quoted at pages 134 to 135 of this latter report from the old English case of - 'Doe V. Batten' (1775) 1 Cowp 245 (k), deserves careful consideration and in my opinion, the view of Sarkar J in - and of the Bombay High Court kin the case of - 'Baldeodas V. G.P.Sonavalla' AIR 1948 Bom 385 (L) is, on the whole, correct"
20. In SALEH BROS. V. K.RAJENDRAN28 a learned judge of the Madras High Court after reviewing the entire case law dissented from MANIKLAL case(2 supra), and held that acceptance of rent after a suit for ejectment is filed cannot regarded as waiver, because after the matter came to Court the election became irrevocable. The said decision of Madras High Court was followed by this High Court in P.LAKSHMANCHANDJI v. V.V.S.R.MURTY 29. Sri Chandrasekhar Rao tried to distinguish the said decision on the ground that rents after filing of the suit in that case were received 'without prejudice' and that that factor weighed with the learned Judge for holding that there was no waiver. It is no doubt true that in that case receipts for rents were issued with a noting 'without prejudice'. But we are unable to agree with the contention of Sri Chandra Sekhar Rao that the learned Judge had only on the basis that receipts were issued with a noting 'without prejudice' held that there was no 'waiver'. In that case the learned Judge, after referring to the case law, held that no question of waiver arises if the landlord received 'rent' from the tenant after filing a suit for ejectment. The said decision was followed by another learned Judge of this Court in K.LAKSHAMANA RAO v. K.V. MANIKYAL RAO 30 who held that acceptance of rent from the tenant by landlord after institution of suit for ejectment against his tenant does not amount to waiver. A Division Bench of Punjab High Court in BASHESHAR NORTH v. DELHI IMPROVEMENT TRUST31 , the Allahabad High Court in MOTILAL v. BASANTLAL32 , the Jammu and Kashmir High Court in RAMLAL v. SARDIR LAL 33, the Rajastan High Court in KOTIBAI v. KASTURI BAI34, the Delhi High Court in B.P.N.SHRIVASTAV v. SMT.POORI BAI 35, held that the landlord either receiving rent or issuing another notice, after filing a suit for ejectment by themselves do not constitute waiver.
21. In our considered opinion in view of the decision of the Supreme Court in RAMAMURTHY SUBHUDI case (7 supra) holding that intention to create a fresh tenancy by using the word 'rent' in a compromise decree cannot be inferred by mere use of the word 'rent' in a compromise decree, the decision in MANICKLAL DEY case (2 supra) must be held to be impliedly overruled, because if we apply the anology adopted by the Supreme Court, the mere act of withdrawal of rent deposited by the tenant into Court, the landlord cannot be imputed with an intention to create a new tenancy.
22. In respect of the two additional written statements filed by the appellant on 13.10.1997 and 4.2.1999, the docket of the trial Court shows the appellant filing a petition to receive his additional written statement dated 4.2.1999 and the Court granting permission therefor in I.A.No.67 of 1999, but does not disclose any permission being sought for or granted for filing the additional statement dated 13.10.1997. Be that as it may, from the averments in additional written statement dated 13.10.1997, more particularly those in paras 3 and 6 thereof, it is seen that that the appellant disputes the title of the 1st respondent to the suit property. Since denial of the title is made during the trial of the suit, by filing an additional written statement the said denial cannot be said to be bona fide. The Supreme Court in M.SUBBARAO P.V.K.KRISHNA 36 held that denial of title during the course of eviction proceedings constitutes a good ground for eviction , provided the denial is not bona fide and that such denial need not be anterior to the institution of the proceedings. Therefore, for the reason that the appellant denied the title of the 1st respondent to the suit property, the appellant is liable to be evicted from the suit property.
23. From the pleas taken in the additional written statement filed by the appellant it is seen that his contention is that the suit without seeking partition is not maintainable and that 1st respondent is not the owner of Navarang Theatre, overlooking clause 9 of Ex.A.1 which reads:
"that the lessees are empowered to change the name of the theatre from its present name "SHHENSHA MAHAL" as they please and run the business choosing any other suitable name and the LESSOR shall have no objections for any such change"
And the admissions in para 5 of his written statement where he alleged that by the date of Ex.A.1, 'Navarang Theatre' was called Shehansha Mahal, and in para 4 he alleged that he became the sole lessee of Navarang theatre, as named by the Lessees, and has been in exclusive possession and enjoyment of the said Navarang theatre. In para 10 of his written statement appellant alleged that the lessees have improved the cinema hall i.e., 'suit Navarang theatre' at a 'heavy cost' and made it 'one of the best theaters in Vijayawada' and that subsequently they purchased some site with their own fund and "annexed to the demised property and made some constructions in it for the beneficial enjoyment of the suit theatre and that the constructions made by the lessees are beneficial to the owners of the theatre or persons incharge of the theatre".
Thus there is a clear admission in the written statement of the appellant that 'Shehansha Mahal' and 'Navarang Theatre' are one and the same, and that the purchase of adjacent property, and the new construction made became an integral part of the demised property, and are made for the "beneficial enjoyment" of the theatre and are 'beneficial to the owner'. But during trial he took a new plea, and gave evidence as D.W.1 that 1st respondent did not lease out Navarang theatre to him, and that Sheshansha Mahal alone was leased out under Ex.A.1, and that Shehansha Mahal is not in existence, and only Navarang theatre is in existence, and that it is not possible to deliver possession of the schedule property without dismantling the existing structures, and that canteen, varandah and part of air condition plant and A/C overhead tank have to be demolished for demarcating the suit schedule property and that there is no agreement to hand over the newly constructed theater to the 1st respondent after 20 years, and as he did not agree to hand over the property after making improvements, he is not liable to handover the property with the constructions made by him.
24. The above evidence of appellant as D.W.1 is contrary to clause 22 of Ex.A.1 which was extracted above. Under the said clause the lessees undertook to deliver possession of the premises to the lessor 'including the furniture installed by the lessees and other "improvements, alterations, constructions, reconstructions and additions effected by the lessees, if any, in good condition".
Assession made to the demised premises as per the contract as per Section 108(d) of Transfer of Property Act would from part of the demised premises and as per section 110 (q) of the Transfer of Property Act on determination of the lease the lessee is bound to put the lessor in to possession of the said property. Therefore additions made to the demised property, which under clause 22 of Ex.A.1 are agreed to be treated as a part and parcel of the demised premises, and also as per Section 108(d) of the Transfer of Property Act became part of the demised premises.
25. In respect of the plea that some property adjacent to the premises let out under Ex.A.1, was purchased and improvements were made therein, no evidence was adduced by the appellant. In fact the appellant, as D.W.1, did not even state that he made any purchases or additions to the property covered by Ex.A.1, and did not produce any document to show that some property adjacent to the property covered by Ex.A.1 was in tact purchased by him and his cotenants. As stated above in any event since the property which is adjacent to the demised premises said to have been purchased by the appellant or his cotenant was made a part and parcel of the demised premises for its beneficial enjoyment thereof and became an inseparable part of 'Navarang Theatre' formerly known as 'SHESHANSHA MAHAL", as per clause 22 of Ex.A.1 1st respondent is entitled to recover the entire Navarang Theatre premises with all its annexures from the appellant, and the appellant can not raise any objection there for.
26. For the above reasons, we hold that no notice to quit was necessary for the 1st respondent before filing the suit for ejectment of appellant and the contention of the appellant that by virtue of Ex.B.4 there was a waiver of the earlier notice to quit, has no merit and so 1st respondent is entitled to recover possession of the entire Navarang Theatre premises from the appellant and also respondents 2 to 18. The point is answered accordingly.
27. Point No.2:
The Supreme Court in Ex.A.63 held that the possession of the appellant after 31.12.1983 is unlawful. In a suit for recovery of possession of immovable property and rent or mesne profits, the court under Rule 12 of Order 20 C.P.C. is empowered to pass a decree for rents which have accrued on the property during the period prior to the institution of the suit, for mesne profits or directing an enquiry as to such mesne profits, until delivery possession to the decree holder. Mesne profits is defined in Section 2(12) C.P.C. as:
"profits which the person wrongful possession of such property actually received or might with ordinary diligence have received there from, together with interest on such profits, but shall not include profits due to improvements made by the person in wrongful possession"
A Division Bench of Madras High Court in THE UNION OF INDIA v. ANDHRA BANK LTD 37 held that a tenant at sufferance cannot unjustly enrich himself by claiming that he will pay only the quondam rent and not reasonable rate of damages for use and occupation of the premises, and that if inspite of warning by the landlord he continuously remains in possession of the premises, the landlord secures a right to get a reasonable compensation from the tenant for such occupation, but in no circumstances, can that amount exceed the enhanced rate demanded by the landlord. In the plaint, 1st respondent claimed damages at the rate of Rs.100/- per day from 1.1.1984 to 30.11.1985 ie., Rs.3000/- per month, and future mesne profits at the prevailing market rate, till delivery of possession, by directing an enquiry into the same. The trial Court passed a decree for mesne profits at that rate of Rs.3000/- per month from 1.1.1984 till the date of delivery of possession. But the learned single Judge modified the same and directed enquiry into the mesne profits from 1.1.1984 till date of delivery of possession. As rightly contended by Sri Chandra Sekhara Rao since 1st respondent herself restricted her claim from 1.1.1984 to 30.11.1985 at Rs.3000/- per month, and did not choose to amend the plaint, nor filed a rejoinder claiming higher amount as damages for that period, she cannot be granted a higher rate of mesne profits than claimed by her from 1.1.1984 to 30.11.1985. She is entitled to mesne profits from 1.12.1985 till the date of recovery of possession at such rate as may be determined by the Court, or a commissioner appointed for that purpose under Order 20 Rule 12 C.P.C. The point is answered accordingly.
28. Before parting with the case we deem it necessary to give a finding with regard to deposit of Rs.35,000/- made by the lessees under Ex.A.1 with the 1st respondent. Clauses 31 and 34 of Ex.A.1 read as under:
"31:The security deposit of Rs.35,000/- (Rupees Thirty Five Thousand only) shall not bear any interest and shall be returned to the LESSEES by the LESSOR on the expiry of the lease period. This security deposit is intended for timely payment of rent by the LESSEES and proper handing over back of the possession of the schedule properties on the expiry of the LEASE term. The LESSOR has the right to appropriate the security deposit for damages and breach of contract and take steps to evict the LESSEES if the lease rent and the property tax are not paid on the stipulated date or if the demised premises and furniture are not handed over back
32. . .......
33. ........
34. The LESSEES are at liberty to mortgage their projectors, furniture and electrical equipment such as fans, etc., and the LESSOR shall have no objection, provided the LESSEES shall free the furniture from all encumbrances while delivering possession of the furniture along with the demised properties to the LESSOR on the expiry of the lease period, failing which the LESSOR is not only entitled to appropriate the security deposit of Rs.35,000/- (Rupees Thirty Five Thousand only) towards damages and breach of contract but also is entitled to recover the cost of furniture from the LESSEES"
At page 3 of Ex.A.8 notice 1st respondent specifically alleged that the security deposit of Rs.35,000/- has been appropriated by her towards breach of contract as agreed and as per the terms and conditions of the lease deed (Ex.A.1). Appellant did not send a reply thereto. In para 9 (c) of the plaint it is specifically averred that security deposit of Rs.35,000/- was appropriated by the 1st respondent for the breach of contract as per the terms of the contract. Appellant did not state anything about the said allegation either in his written statement or in any of the two additional written statements filed by him, or his evidence as D.W.1. Since Ex.A.1 gave authority to the 1st respondent to forfeit Rs.35,000/- in case the lessees fail to deliver possession of the property after expiry of the period of lease, and since appellant did not object to the claim of the 1st respondent that she appropriated that amount as per the agreement, action of the 1st respondent in forfeiting Rs.35,000/- kept in deposit with her, cannot be found fault with.
29. In the result, the decree of eviction passed by the learned single Judge is confirmed. Appellant is directed to deliver possession of Navarang Theatre with all the furniture and the improvements made thereto to the 1st respondent within one month from today. 1st respondent is entitled to a decree for Rs.40,250/- towards mesne profits from 1.1.1984 to 30.11.1985 as claimed in the plaint, and is also entitled to mesne profits at the rate to be determined in a separate proceedings filed under Order 20 Rule 12 C.P.C. for that purpose. The decree of the learned single Judge is modified accordingly. The 1st respondent is entitled to costs through out. The appeal is ordered accordingly.