Andhra HC (Pre-Telangana)
Satyanarayana, Spun Pipe Company vs N. Padmavathi on 4 March, 2003
Equivalent citations: 2003(4)ALD555, 2003 A I H C 4677, (2003) 2 RENCR 157, (2003) 4 ANDHLD 555, (2003) 3 RECCIVR 388, (2003) 1 ANDHWR 518, (2003) 4 CIVLJ 661
ORDER P.S. Narayana, J.
1. This Second Appeal was filed against the judgment and decree, dated 15-7-1994, and passed by the Principal Subordinate Judge, Kakinada in A.S. No. 151 of 1993.
2. The respondent herein filed O.S. No. 762 of 1979 on the file of the T Additional District Munsif, Kakinada against the Appellant-Satyanarayana, Spun Pipe Company, represented by its Managing Partner - herein for its eviction from the plaint schedule premises and also for future mesne profits at Rs. 300/- per month till the date of delivery, On the respective pleadings of the parties, the issues and additional issue were settled. On behalf of the Respondent-Plaintiff, P.W.1, the husband of the Respondent-Plaintiff was examined and Exs.A.l to A.7 were marked. On behalf of the Appellant-Defendant, D.Ws. 1 to 4 were examined. Exs.X.l and X.2 were marked. The Court of first instance i.e., the I Additional District Munsif, Kakinada, on appreciation of oral and documentary evidence, arrived at the conclusion that the Respondent-Plaintiff is entitled to the relief prayed for and decreed the suit granting three months time to the Appellant-Defendant to vacate the suit schedule premises and directing the Appellant-Defendant to pay balance amount of damages after deducting the amount already paid by him to the Respondent-Plaintiff from Rs. 33,290/- within three months from that date on payment of requisite Court fee payable by the Respondent-Plaintiff on the aforementioned amount. The unsuccessful Appellant-Defendant aggrieved by the judgment and decree of the 1 Additional District Munsif, Kakinada preferred A.S.No. 151 of 1993 on the file of the Principal Subordinate Judge, Kakinada. The Appellate Court; i.e., the Principal Subordinate Judge, Kakinada, by its judgment and decree, dated 15-7-1994, dismissed the said A.S.No. 151 of 1993 without costs confirming the judgment and decree of the Court of first instance. Aggrieved by the same, the unsuccessful Defendant filed this Second Appeal.
3. Sri T. Veerabhadrayya, learned Counsel representing the Appellant-Defendant, had drawn my attention to ground No. 16(a) to (c) of the grounds of tills Second Appeal and contended that the Courts below totally erred in recording a finding that the lease is for 5 years only, since the Courts below did not take into consideration the broad probabilities and the surrounding circumstances. The learned Counsel for the Appellant-Defendant had further maintained that a quit notice under Section 106 of the Transfer of Property Act, 1882 (for short "the T.P. Act") is not in accordance with law and even otherwise it cannot be said that such notice is not necessary by efflux of time. The learned Counsel for the Appellant-Defendant also maintained that inasmuch as the Respondent-Plaintiff received the rents after receiving Ex.A.2 notice, the Appellant-Defendant is definitely a tenant holding over. The learned Counsel for the Appellant-Defendant in fact had taken me through the findings which were recorded by the Court of first instance and also the Appellate Court and had pointed out that in view of non-examination of the Respondent-Plaintiff the approach of the Courts below in recording such findings definitely cannot be said to be in accordance with law.
4. Sri V.L.N.G.K. Murthy, learned Counsel for the Respondent-Plaintiff, had made the following submissions and took me through the recitals of Ex.A.1 and contended that by virtue of efflux of time as per Section 111 of the T.P. Act no notice under Section 106 of the T. P. Act is necessary. The learned Counsel for the Respondent-Plaintiff further maintained that in fact a notice was issued and both the Courts below on appreciation of oral and documentary evidence came to the conclusion that the Respondent-Plaintiff is entitled to the reliefs as prayed for. The learned Counsel for the Respondent-Plaintiff repelling the contention relating to the non-examination of the Respondent-Plaintiff had submitted that P.W.1 is none other than the husband of the Respondent-Plaintiff having knowledge about all the facts and circumstances and in view of Section 120 of the Indian Evidence Act (for short "the Evidence Act"), the husband is definitely a competent witness and hence the same cannot be in any way faulted.
5. Heard both sides and perused the judgments and decrees of both the Courts below, findings recorded them and also the other oral and documentary evidence available on record.
6. The only substantial question of law that arises for consideration in this Second Appeal can be framed as follows:
Whether a quit notice under Section 106 of the T.P. Act is necessary at all in the facts and circumstances of the case and if so whether Ex.A.2 notice constitutes a valid quit notice?
7. The facts in nutshell as reflected from the respective pleadings of the parties are as hereunder:
8. It was pleaded in the plaint that the Respondent-Plaintiff is the owner of the plaint schedule premises to an extent of Ac.1 of land bearing R.S. No. 212/4 and Ward No. 29 of the Kakinada Municipality; that the Appellant-Defendant was let out the plaint schedule premises under a lease deed, dated 14-8-1974, under the terms and conditions set out therein which is with the Appellant-Defendant; that according to the terms and conditions of the lease, the Appellant-Defendant has to pay a sum of Rs. 150/- per month payable for 1st of every succeeding month; that the lease period is for five years which expired by the end of 31st August, 1979; that the Appellant-Defendant made temporary constructions and provided tanks and had electrical installation; that under the terms of lease the Appellant-Defendant has to remove all the constructions made by him and put the Respondent-Plaintiff in vacant possession of the land and that as per the terms of lease the Appellant-Defendant is also liable to pay the Respondent-Plaintiff the future damages at the rate of Rs. 300/- per month besides rent if it (Appellant-Defendant) fails to vacate the suit schedule premises by 31st August, 1979 till date of delivery of possession.
9. The Appellant-Defendant filed Written Statement denying all the allegations.
It was also pleaded therein that the Respondent-Plaintiff did not choose to file the lease deed into the Court for the reasons best known to her, in order to cause loss to the Appellant-Defendant and that the only copy of the lease is with the Respondent-
Plaintiff which she apparently suppressed. It was also further pleaded therein that the Appellant-Defendant wanted to start a small scale industry of manufacturing spun pipes and other allied articles to meet the demand of the public as well as the Government of Andhra Pradesh; that at the time of taking the suit schedule premises on lease both parties had a talk with regard to the terms and conditions; that at that time the Appellant-Defendant informed the Respondent-Plaintiff that he required the schedule property premises on lease for a period of ten years; that the Respondent-Plaintiff also agreed for the same but as she is having Ac.4.00 of land within the Urban Agglomeration of Kakinada, she got the lease deed executed mentioning the period of lease as five years only even though the stipulated period is 10 years; that all the terms and conditions are not correctly mentioned in the plaint; that at the time of taking the lease the Respondent-Plaintiff informed the Appellant-Defendant that the period of five years is in conformity with the understanding of giving the property on lease for a period of ten years; that the Appellant-Defendant, to meet the specifications made by the Government of Andhra Pradesh, invested nearly Rs. 1,50,000/-and constructed pucca buildings and semi pucca buildings in the suit schedule premises; that the contention of the Respondent-Plaintiff that the lease is only for a period of five years from 14-8-1974 is not true; that the Respondent-Plaintiff and the Appellant-Defendant fully know about the same; that the further contention that the Appellant-Defendant has to pay Rs. 300/- as damages in addition to the rent is not true; that as per the understanding between the Respondent-Plaintiff and the Appellant-Defendant for the second five years period the Respondent-Plaintiff is to be paid rent at the same rate; that the Respondent-Plaintiff is not entitled to claim any damages much less as claimed in the plaint; that the Respondent-Plaintiff is estoppped from contending that the lease is only for a period of five years; that when the Appellant-Defendant approached the Respondent-Plaintiff to get a formal document evidencing the extension of lease by a period of five years as per the understanding between the parties, in order to harass the Appellant-Defendant the Respondent-Plaintiff avoided the same and filed the suit with false allegations; that when the Appellant-Defendant received the notice, the Appellant-Defendant approached the Respondent-Plaintiff and had a talk with her and the Respondent-Plaintiff informed that it is a formal notice and that she would abide by the final agreement; that in any view of the matter there is no valid termination of the lease and the Respondent-Plaintiffs suit is liable to be dismissed in limine; that the relief prayed for in the plaint is not sustainable and that the plaint schedule premises having been acquired by the State of Andhra Pradesh, the Respondent-Plaintiff's suit is not maintainable.
10. On the strength of the above pleadings, on 28-1-1980 the following issues were settled:
(1) What is the period of the lease, dated 14-8-1974, between the Respondent-Plaintiff and the Appellant-Defendant? (2) Whether the Appellant-Defendant is liable to give vacant possession to the Respondent-Plaintiff? (3) Whether the Respondent-Plaintiff is entitled to the damages prayed for? And (4) To what relief?
11. As already referred to supra, the husband of the Respondent- Plaintiff was examined as P.W.1 and Exs.A.1 to A.7 were marked on behalf of the Respondent-
Plaintiff. On behalf of the Appellant-
Defendant D.Ws. 1 to 4 were examined.
Apart from these documents, Exs.A.1 and X.2 were also marked. There is no dispute that the Respondent-Plaintiff is the owner of the plaint schedule premises and the same was leased out to the Appellant-Defendant under Ex.A.1 lease deed, dated 14-8-1974, on a monthly rent of Rs. 150/-. The specific case of the Respondent-Plaintiff is that the lease period is only for a period of 5 years whereas the defence of the Appellant-
Defendant is that the lease is not for a period of 5 years but for a period of 10 years as per the oral understanding between the Respondent-Plaintiff and Appellant-Defendant. Ex.A.1 was executed for a term of 5 years only. In view of the prohibition imposed by the Urban Agglomeration Act P.W.1, the husband of the Respondent-Plaintiff deposed that he has been looking after the affairs and he has full knowledge about the facts and he is also one of the attestors of Ex.A.1. No doubt, the non-examination of the Respondent-Plaintiff had also been pointed out. But, however, the husband of the Respondent-Plaintiff is not only the attestor of Ex.A.1 but have knowledge about all the facts. Apart from this, he is also competent witness to speak about all these facts. Section 120 of the Evidence Act deals with parties to the civil suit and their wives or husbands, husband or wife of person under criminal trial. As per that specific provision, in all the civil proceedings the parties to the suit and the husband or wife of any party to the suit shall be competent witness. Apart from this, P.W.1 also is the attestor of Ex.A.1l having knowledge about all the facts and hence non-examination of the Respondent-Plaintiff, the wife of P.W.1 cannot be in any way faulted with. P.W.1 deposed in detail about the conditions incorporated in Exs.A.1 and stated that the lease period is only 5 years as specified in Ex.A.1 and not 10 years and Exs.A.1 in fact was acted upon and in view of the same the Appellant-Defendant cannot be permitted to contend that the period is 10 years. Even otherwise, when the recitals in Exs.A.1 clearly go to show that the period specifically fixed is only 5 years. There cannot be any oral evidence contrary to the recitals in the document in view of the exclusion of the oral evidence and hence I am of the considered view that the findings recorded by both the Courts below that such oral evidence cannot be taken into consideration in view of the recitals in Exs.A.1 need not be in any way disturbed or interfered with in a second appeal and hence the said findings are to be confirmed.
12. The question, which had been elaborately argued, is in relation to the validity of Ex.A.2 quit notice. As already referred to supra, Exs.A.1 is the registration extract of the lease deed. Ex.A.3 is the postal acknowledgment. Ex.A.4 is the office copy of the notice issued by the advocate for the Respondent-Plaintiff to the Appellant-Defendant. Ex.A.5 is the postal acknowledgment signed by the Appellant-Defendant. Ex. A. 6 is the office copy of the quit notice issued by the Respondent-Plaintiff to the Appellant-Defendant. Ex.A.7 is the reply notice issued by the Appellant-Defendant's advocate to Ex.A.6. Likewise Ex.A.1 is the Photostat copy of the registered lease deed, dated 14-8-1974, and Ex.X.2 is the bunch of Photostat copies filed before the bank by Appellant-Defendant at the time of renewal. No doubt, certain probabilities and circumstances had been pointed out to convince the Court that the Appellant-Defendant would not have the lease for short term of 5 years in the facts and circumstances of the case. But, however, these are all the questions of fact and both the Courts below recorded the concurrent findings. Apart from this aspect of the matter, a faint attempt had been made by advancing the contention that after issue of notice, receiving rents will definitely amount to waiving the right to seek the relief of eviction. The plea of waiver was not raised but the contention was advanced. Both the Courts below negatived the said contention. Merely because the rents were received without the rights of purchase of the landlord and the landlady it may not amount to waiver. Even otherwise, in view of the concurrent findings recorded by both the Courts below I am not inclined to accept the said contention. In Dattonpant v. Vithalrao, , it was held that when tenancy is determined by efflux of time notice to quit is not necessary. Both the Courts below recorded the concurrent findings relating to the validity of Ex.A.2 notice and pointed out a type mistake. The Courts below also recorded the findings that while considering the quit notice liberal approach has to be adopted and on the ground of technicalities the relief cannot be negatived in favour of the Respondent-Plaintiff if the Respondent-Plaintiff is otherwise entitled to such a relief. The Courts below also recorded findings that in view of the recitals of Ex.A.1, by virtue of efflux of time in the light of the provisions of Section 111 of the T.P. Act there is no necessity of issuing any notice to quit and as such the Respondent-Plaintiff is definitely entitled to get the relief of eviction. In fact, the Appellate Court recorded clear findings in this regard at paras 26 to 30 of its judgment. While recording such findings, the Appellate Court also relied upon several decisions which were cited by the respective parties. In view of the concurrent findings recorded by both the Courts below in this regard, it cannot be said that the suit instituted by the Respondent- Plaintiff claiming the relief of eviction and" also the relief of future profits till date of delivery can be said to be defective in any way. Hence the findings recorded by both the Courts below in this regard are hereby affirmed. Consequently the Second Appeal being devoid of merits is dismissed but, however, in the peculiar facts and circumstances, without costs.
13. At this juncture, the learned Counsel for the Appellant-Defendant had made a request stating that since the Appellant-Defendant is manufacturing pipes sufficient time may be given for the purpose of shifting machinery and for removal of super structure. Taking all the facts and circumstances into consideration the Appellant-Defendant is granted six months time to vacate the suit schedule premises. There shall be no order as to costs.