Madras High Court
M.Vaidhyanathan vs M.Sriram on 9 August, 2011
Bench: R.Banumathi, V.Periya Karuppiah
?IN THE HIGH COURT OF JUDICATURE AT MADRAS %DATED: 09/08/2011 *CORAM THE HON'BLE MRS.JUSTICE R.BANUMATHI AND THE HON'BLE MR.JUSTICE V.PERIYA KARUPPIAH +O.S.A. No.77 of 2011 #Hotel Chinnass xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx $Tamilnadu Kalvi Kappu Arakkattalai xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx !FOR PETITIONER : M.Vaidhyanathan ^FOR RESPONDENT : M.Sriram :ORDER
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 09.08.2011 CORAM THE HONOURABLE MRS.JUSTICE R.BANUMATHI AND THE HONOURABLE MR.JUSTICE V.PERIYA KARUPPIAH O.S.A.No.77 of 2011
1. Hotel Chinnass represented by its Partner P.M. Balasubramaniam, P.M. Venkateswaran, 77, Bazullah road, T.Nagar, Chennai 600 017.
2. P.M.Balasubramaniam, No.20, Padmavathiar Road, Jeypore Nagar, Gopalapuram, Chennai 600 086.
3. P.M. Venkateswaran, No.20, Padmavathiar Road, Jeypore Nagar, Gopalapuram, Chennai 600 086. ..Appellants.
Vs.
1. Tamilnadu Kalvi Kappu Arakkattalai registered Trust represented by its Managing Trustee, 77, (New No.32), Bazullah Road, T.Nagar, Chennai 600 017.
2. Hotel Aboorva Sangeetha, represented by its Managing Partner P.H.Padmanabhan, 77, Bazullah Road, T.Nagar, Chennai 600 017. ..Respondents Appeal filed under Clause 15 of the Letter Patent against the order of the learned single Judge made in C.S.No.341 of 2003 dated 28.09.2010.
For Appellants : Mr.M.Vaidhyanathan For Respondents : Mr.M.Sriram along with Ms.Suganyadevi Duraisamy for R1. J U D G M E N T (The judgment of the Court was delivered by V.PERIYA KARUPPIAH.,J)
This appeal is directed against the judgment and decree passed by the learned single Judge made in C.S.No.341 of 2003 dated 28.09.2010
2. The brief facts of the case of the plaintiff/first respondent are as follows:
The plaintiff is a Trust which was registered in the year 1976. The object of the Trust is to offer relief to the poor by way of education and medical relief and to establish and maintain educational institutions and workshops for imparting general, technical professional, industrial and other means of education and training and to establish hostels, choulteries, rest homes, orphanages, homes for the benefit of poor and destitute and others. The Trust has been exempted from payment of Income Tax under Section 80-G vide letter No.DIT(E)No.212(137)176 dated 28.06.2002. The property bearing Door No.77(New No.32) Bazullah Road, Theagaraya Nagar, Chennai-17 is one of the immovable properties owned by the Plaintiff Trust. So far as the registered office of the Trust is concerned, the same is situate at a portion in No. 77(New No.32) Bazullah Road, Theagaraya Nagar, Chennai-17. The third defendant approached the plaintiff for taking lease of the property situate at No.77(New No.32) Bazullah Road, Theagaraya Nagar, Chennai-17, for the purpose of conducting business of lodging house. The Trust Board authorised the Joint Managing Trustee to enter into a lease deed with the third defendant. The lease deed dated 2.2.1999 was entered into between the plaintiff and the third defendant and it was registered as Document No.180/99 on the file of Sub-Registrar Office, T.Nagar, Chennai. The said lease was for a period of three years commencing from 1.9.1998 and the period of renewal for a period of three years was subject to the condition that the tenant pays enhancement of 20% of the rent payable on 30th September, 2001. The third defendant paid a sum of Rs.10 lakhs towards security deposit which is refundable at the time of handing over vacant possession of the suit property. Thereafter, the second defendant was inducted and the first defendant partnership firm was constituted and the same was intimated to the plaintiff vide letter dated 20.12.2000. It was specifically admitted that the lease deed was binding on the first and second defendants also. As per clause 20 of the lease deed, the defendants had agreed the right of the plaintiff to terminate the lease if the lessee, commits default in payment of rent consecutively for a period of two months. As per the lease deed, from 1.10.2001, the rent payable by the defendants 1 to 3 is Rs.1,45,530/- per month but the defendants 1 to 3 have not paid the said quantum of rent and committed breach of terms as stipulated in clause 20 of the lease agreement. By letter dated 18.9.2011, the plaintiff informed the 3rd defendant intimating about the quantum of rent with effect from 10.10.2001 and also payment of electricity deposit. By letter dated 10.11.2001, the defendants 1 to 3 have admitted that the rents for the month of July, August and September 2001 were not paid and only in November 2001, the rent has been paid and they have not paid the rent for the month of October 2001. Thereafter, lesser amount of rent was paid on 13.11.2001 and 16.11.2001 for the month of July, August, September, 2001 and the correct quantum of rent was not paid. The defendants requested not to increase the quantum of rent as they were facing financial constraints. By letter dated 14.6.2002, the defendants sent a sum of Rs.5,39,375/- representing the arrears of rent from January to May, 2002 and the said amount was calculated at the rate of Rs.1,21,275/- which was not the rent agreed by the plaintiff. Further, the defendant has deducted a sum of Rs.67,000/- said to have been paid towards electricity deposit. The defendants 1 to 3 have committed breach of the terms of agreement by belated payment of amount. The defendants 1 to 3 sublet the ground floor portion to the 4th defendant Hotel Aboorva Sangeetha from December 1998. There is no landlord tenant relationship between the plaintiff and the 4th defendant and the 4th defendant did not pay any rents to the plaintiffs and any decision rendered in the suit will be binding on the 4th defendant. The plaintiff sent lawyer's notice dated 22.6.2002 terminating the tenancy with effect from 31.7.2002 and that the defendant is liable to pay a sum of Rs.8,42,300/-. The suit is filed for recovery of arrears of rent and to recover of possession of the suit property. The plaintiff is entitled to claim damages for use and occupation from the defendants 1 to 3 at the rate of Rs.2.5 lakhs per month with effect from 01.08.2002. Since the tenancy is terminated with effect from 1.7.2002, the amount paid by the defendants 1 to 3 are being adjusted towards the damages for use and occupation as part payment. The plaintiff came to understand that the defendants 1 to 3 are trying to induct the third parties as tenants and to sublet the premises. If the defendants do so, the plaintiff will be put to great hardship. The defendants 1 and 2 made several additional constructions in the setback areas. The defendants put up construction even after 1999 and till October 2001 and it was found that they have committed violation and the demand raised by C.M.D.A., comes to Rs.3,19,000/-. It was accepted by the defendant that as and when demand is raised by the C.M.D.A., he will make the payment. By letter dated 4.6.2002, C.M.D.A. made a demand of Rs.7,30,500/- being the regularisation fee. The plaintiff wrote a letter dated 19.6.2002 to the defendants to make the payment. The defendants have not chosen to make the payment. As the last date of payment was on 30.6.2002, the plaintiff paid the regularisation fees on 26.6.2002 and other charges and hence, the defendants are liable to pay their share of regularisation fee which was admitted at Rs.3,19,000/- and the same was also claimed by the plaintiff in his lawyer's notice dated 22.6.2002. Hence, the plaintiff therefore, prayed for recovery of possession, recovery of arrears of rent, regularisation fee and for other reliefs.
3. The averments in the written statement filed defendants 1, 2 and 3 are as follows:
The defendants deny all the averments in the plaint except that are specifically admitted herein. It is stated that at the request of the first defendant, the rent was reduced from Rs.1,45,530/- to Rs.1,40,000/-. Subsequently, at the request of the defendants, the senior members of the Trust permitted the defendants to pay rents at the rate of Rs.1,30,000/- per month and the said sum is being paid without default. The contention that there was breach of the terms of the lease is incorrect. The senior members of the Trust had agreed for the reduced rent of Rs.1,30,000/- and hence, after making appropriate and permissible deductions, a sum of Rs.1,21,275/- was paid. The deduction towards electricity deposit was agreed and there was no belated payment or breach of the terms of the lease. The 4th defendant is not a sub-tenant but merely a licensee, catering to the requirements of the occupants of the rooms of the hotel situated in the demised premises. The defendants are not liable to pay any damages for use and occupation and the quantum claimed viz., Rs.2,50,000/- is highly imaginary. It was submit that no construction has been put up by the defendants which is illegal. In respect of certain areas for which regularisation fee has been demanded by the C.M.D.A., the defendants have offered to pay their share, since a portion of the deviated area is in the occupation of the defendants. Till date, the plaintiff has not apportioned the regularization fee with the sole object of claiming the entire amount from the defendants. The defendants are not liable to pay a sum of Rs.3,19,000/- as demanded by the plaintiff. There was no valid termination of the lease and no breach has been committed by them. The amounts claimed by the plaintiff in the suit are imaginary and the claim for possession is illegal and hence, the suit has to be dismissed.
4. The learned single Judge had framed nine issues which are as follows:
1) Whether there was breach of terms of condition of the lease deed dated 02.02.1999 by the defendants 1 and 2?
2) Whether the notice of termination issued by the plaintiff is valid?
3) Whether the defendants 1 to 3 have put up any construction or alternation without the consent of the plaintiff?
4) Whether the defendants 1 to 3 are liable to pay a sum of Rs.8,42,300/-as arrears of rent with interest thereon ?
5) Whether the defendants 1 to 3 are liable to pay Rs.2,50,000/- per month towards the damages for use and occupation with effect from 01.11.2002?
6) Whether the defendants 1 to 3 are liable to pay Rs.3,41,333/- towards their share of regularisation charges with interest?
7) Whether the plaintiff is entitled to the relief of injunction restraining the defendants from subletting the property?
8) Whether the defendants 1 to 3 have sublet the suit premises to the fourth defendant in violation of the terms of the contract?
9) What other relief the parties are entitled to?
5. The learned single Judge had examined P.W.1 and P.W.2 and had admitted Exs.P1 to P28 on the side of the plaintiff and examined D.W.1 on the side of the defendants. The learned single Judge had appraised the evidence addressed in the suit and had come to the conclusion of decreeing the suit for ejectment and ordered a sum of Rs.1,45,530/- i.e., the lastly paid monthly rent towards future damages along with 20% enhancement. The learned single Judge had also directed to pay 50% of the sum of Rs.6,21,180/-, the money paid by the plaintiff to the C.M.D.A. and in other respects , the claim of the plaintiff was not allowed and granted two months time for vacating the premises which includes a direction to the sub-lessee, Hotel Aboorva Sangeetha also.
6. Against the judgment and decree passed by the learned single Judge, the defendants 1 to 3 had preferred this appeal. Even though several claims of the plaintiffs have not been allowed by the learned single Judge, the plaintiffs did not prefer any separate appeal nor any cross objection, in this appeal.
7. Heard, Mr.M.Vaidhyanathan, learned counsel counsel for the appellants and Mr.M.Sriram, learned counsel for the first respondent.
8. Learned counsel for the appellants/defendants would submit in his argument that the learned single Judge was not correct in coming to the conclusion that the notice to quit issued by the plaintiff was in order and to consequently direct the defendants/appellants to vacate the suit property. He would further submit that the notice to quit issued in Ex.P16 was not proper and the suit which rested upon the said notice, is not sustainable. He would also submit in his argument that the learned single Judge having found the issues against the plaintiff failed to find that no amounts was due either towards arrears of rent or towards the damages payable in respect of the said property. He would further submit in his argument that the learned single Judge was not correct in saying that the appellants/defendants are liable to pay a sum of Rs.3,41,333/- towards their share for regularisation fees being the 50% of the total amount said to have been paid by the plaintiffs.
9. Learned counsel would further submit that Hotel Aboorva Sangeetha was only a licensee housed for facilitating the workers and the guests of the defendants, for dining and the said Hotel Aboorva Sangeetha does not have its equipments permanently in the said premises. He would also submit that there was no sub-letting done by the appellants and the said Hotel Aboorva Sangeetha was only a licensee. He would further submit in his argument that according to Clause 20 of the agreement, notice to quit could be issued during the period of tenancy when there was default in payment of rent for two consecutive months and as per Clause 21, six months advance notice is necessary in writing before terminating the lease, whereas the notice in Ex.P16 gives only 15 days time to vacate the premises by the end of 31.07.2002, which is contrary to the agreement. He would further submit that the provisions of Section 106 of Transfer of Property Act coupled with Clause 21 of the Lease Agreement would go to show that there was no valid termination of lease. Learned counsel would further submit in his argument that the evidence produced by both parties would disclose that the plaintiffs conceded for modifying and altering the premises for accommodating Hotel Aboorva Sangeetha and therefore, the defendants cannot be found fault that they have sublet the premises as stated by the plaintiffs in the suit. He has also submitted in his arguments that there was no arrears of rent payable during the period of tenancy and there was no necessity of issuing a notice to quit as contemplated in the agreement. He would further submit that the appellants/defendants are doing lodging business and they have to overcome various difficulties arising out of different circumstances and still the defendants were paying the rent payable to the premises promptly and therefore, there was no question of any termination of tenancy nor any payment of damages payable in respect of the premises. He would further submit that the alleged damages fixed at 20% more than the last rent at Rs.1,45,530/- is not sustainable. He would further submit in his argument that the regularisation fee shall normally be borne by the owner of the building and therefore, the decree passed against the defendants to share 50% of the regularisation fee is liable to be set aside. He would therefore, request the Court to set aside the judgment and decree passed by the learned single Judge ordering ejectment of the appellants from the suit property and issuing directions to pay the damages at Rs.1,45,530/- + 25% per month and also to pay 50% of the regularisation fee of Rs.6,21,180/- and the suit filed by the plaintiffs before the learned single Judge may be dismissed.
10. Learned counsel appearing for the first respondent/plaintiff would submit in his arguments that the notice to quit issued by the plaintiff in Ex.P16 is valid in law and even otherwise the stipulation contained in Clause 21 of the agreement is read with section 106 of Transfer of Property Act, the plaintiff had filed the suit after the lapse of six months as contained in Clause 21 of the said agreement. He would further submit that the registered lease deed entered into between the parties on 2.2.1999 was in force for a period of three years ending with 30.09.2001 and thereafter, it was continued as per the clauses in the said lease agreement for the extended period of 3 years at the rate of Rs.1,45,530/- per month and therefore, the same terms and conditions would apply to the extended lease and it would be over by the end of 30.09.2004. He would further submit that however, the first defendant had violated the terms and conditions by sub-letting the premises to Hotel Aboorva Sangeetha without the written consent of the plaintiff and he had also altered the premises and made the plaintiff to pay a sum of Rs.6,21,180/- and they were compelled to pay the same and therefore, the defendants are liable to be evicted on the ground of sub-letting and unauthorised construction in the building belonging to the plaintiff. He would further submit that the notice to quit issued by the plaintiff in Ex.P16 is quite reasonable and the defendants are liable to vacate the premises at the end of 6th month from the date of notice to quit and on that aspect, the finding of the learned single Judge, is not assailable. He would further submit in his argument that the defendants are liable to pay a sum of Rs.1,45,530/- towards monthly rent on and from 01.10.2001 as per the lease agreement and owning to the difficulty expressed by the defendants, the Trust Board had considered and asked them to pay a sum of Rs.1,40,000/- as monthly rent for two months and the defendants did not avail the said concession given by the plaintiff but they defaulted to pay the monthly rent consecutively for more than two months and therefore, the notice to quit was sent as per Clause 20 of the agreement. He would also bring it to the notice of the Court that sub-letting of the premises was prohibited as per Clause 17 of the lease agreement and the defendant/ lessee was also prohibited from putting up any constructions or additions in the property without the written consent of the plaintiff but the defendants 1 to 3 had inducted Hotel Aboorva Sangeetha as sub-tenant by unauthorisedly constructing and modifying a portion of the premises. Therefore, on that ground also, the notice to quit issued by the plaintiffs in Ex.P16 is a valid one. He would therefore, submit to the Court that the order of ejectment passed by the learned single Judge is correct and it may be confirmed.
11. He would further submit in his argument that even after the filing of the suit, the extended period of three years was over by the end of 30.09.2004 and the defendants are deemed to be the trespassers after the lapse of the said lease period by efflux of time and the Court can take note of the said subsequent events and mould the relief in accordance with the circumstances of the case. He would therefore, request the Court that the judgement and decree passed by the learned single Judge need not be interfered with and thus, the appeal may be dismissed.
12. We have given anxious consideration to the arguments advanced on either side.
13. On consideration of the arguments, and on perusal of the case records, evidence, grounds of appeal and other related papers, we could see the following points emerge for consideration in the appeal.
i) Whether the notice to quit issued under Ex.P16 is valid in law?
ii) Whether the plaintiff is entitled for the relief of ejectment of the defendants from the demised premises?
iii) Whether the finding of the learned single Judge directing the defendant to pay the plaintiff 50% of the regularisation charges, i.e., Rs.3,10,590/- is correct?
iv) Whether the finding of the learned single Judge in directing the defendants to pay a sum of Rs.1,45,530/- + 20 % of the same, per month as damages towards future damages is correct?
v) Whether the judgment and decree passed by the learned single Judge are liable to be interfered and set aside?
vi) Is the appeal allowable?
14. Point Nos.1 and 2:
For convenience sake, the rank of the parties in the suit is maintained in this judgment.
The indisputable facts are that the plaintiff is the owner of the property in which the first defendant was inducted as a lessee in respect of ground floor and first floor of the property at Door No.77, Bazullah Road, T.Nagar, Chennai-17 for the conduct of lodging business through a registered lease deed dated 02.02.1999. The said registered lease deed was produced as Ex.P3. No doubt, it is true that both the plaintiff and the defendants are governed and bound by the terms and conditions of lease entered into between them in Ex.P3. The lease period as agreed in between the parties was for a period of 3 years commencing from 1.9.1998 to 30.09.2001. Various quantum of rents have been fixed for various period till 30.09.2001. The lease period fixed in the registered lease agreement was over and therefore, the following stipulation in the lease deed would come into operation for the further period of 3 years commencing from 01.10.2001 to 30.09.2004. The relevant provision would run as follows:
"From 01.10.2001 the rent will be Rs.1,45,530/- (Rupees One Lakh Forty five Thousand Five Hundred and Thirty only) per month for the extended period of 3 years."
The parties have agreed to continue the tenancy as per the said Clause and there is no dispute that they have also exchanged correspondence regarding the reduction of rent for two months and thereafter, to switch over to the agreed rent as per the lease agreement. The contentions of the defendants was that the notice to quit sent in Ex.P16 is not valid in law. There is no dispute that the notice to quit as sent by the plaintiff in Ex.P16 should be in terms of the said agreement and also in accordance with provision of Section 106 of Transfer of Property Act. The ingredients of Section 106 of Transfer of Property Act would run as follows:
"106. Duration of certain leases in absence of written contract or local usage (1) In the absence of a contract or local law or usage to the contrary, a lease of immovable property for agricultural or manufacturing purposes shall be deemed to be a lease from year to year, terminable, on the part of either lessor or lessee, by six months' notice; and a lease of immovable property for any other purpose shall be deemed to be a lease from month to month, terminable, on the part of either lessor or lessee, by fifteen day's notice.
(2) Notwithstanding anything contained in any other law for the time being in force, the period mentioned in sub-section(1) shall commence from the date of receipt of notice.
(3) A notice under sub-section 91) shall not be deemed to be invalid merely because the period mentioned therein falls short of the period specified under that sub-section, where a suit or proceeding is filed after the expiry of the period mentioned in that sub-section.
(4) Every notice under sub-section (1) must be in writing, signed by or on behalf of the person giving it, and either be sent by post to the party who is intended to be bound by it or be tendered or delivered personally to such party,or to one of his family or servants at his residence, or (if such tender or delivery is not practicable) affixed to a conspicuous part of the property.)"
15. From the above, we could understand that the ingredients of the said section would apply if there is no contract to the contrary. Therefore, the agreement reached in between the parties should be read along with the provisions of Section 106 of Transfer of Property Act. According to Clause 21 of the agreement, the time stipulated for terminating the lease shall be six months in writing. Ex.P16 was issued on 22.06.2002 terminating the tenancy by the end of the tenancy month, July 2002 i.e., 31.07.2002. Therefore, it is clear that the tenancy was not terminated by giving six months time as per Clause 21 of the lease agreement. The contention of the learned counsel for the plaintiff would be that even though 15 days time has been given in Ex.P16, the suit has been lodged only after the expiry of six months period from the date of Ex.P16. Therefore, the provision of Section 106 of Transfer of Property Act would be applicable and accordingly, notice to quit given in Ex.P16 is a valid one. Whether such argument could be considered is the question of fact which could be verified through the records. On a verification of the plaint, it was found that it was filed on 29.11.2002. If the plaint has been filed on and after 31.12.2002, the plaint would be considered to have been filed after six months from the the date of issuance of notice to quit, Ex.P16 but the filing of the plaint was on 29.11.2002 which is certainly within six months. Therefore, the argument advanced by the learned counsel for the plaintiff that the suit has been filed after a lapse of six months from the date of issuance of Ex.P16 is virtually not correct. Therefore, the notice issued in Ex.P16 under section 106 of Transfer of Property Act, terminating the tenancy is not valid in law.
16. In such circumstances, whether an order of eviction passed by the learned single Judge could be sustained is the further question to be decided by us. It is an admitted case that the tenancy had in between the plaintiff and the first defendant was originally for three years ending with 30.09.2001 and it was subsequently, extended as per the subsequent term of the lease for another period of three years. Therefore, the lease period was mutually extended as per the covenant in the lease agreement from 01.10.2001 to the further period of three years ending with 30.09.2004. Learned counsel for the plaintiff insisted in his argument that even if notice to quit is found to be invalid and the tenancy has come to an end by efflux of time by 30.09.2004 and the suit filed on the foot of termination of tenancy need not be defeated by virtue of a finding that termination of tenancy is not valid in law.
17. In a judgment of Honourable Apex Court reported in 1975(2) SCC 246 (D.G.Devakate v. V.M.Janagaval) wherein it has been categorically laid down that notice of termination is not necessary when the lease has been terminated by efflux of time. The relevant passage would run thus:
" The tenancy of the appellant in the above case was found to have been determined by efflux of time and subsequent occupation was not in pursuance of any contract, express or implied but by virtue of the protection given by successive statutes. In the case of Pooran Chand, Subba Rao, J. as he then was, said to page 912, when a similar argument was advanced before him:
It is not necessary in this appeal to express our opinion on the validity of this contention, for we are satisfied that the term of the tenancy had expired by efflux of time; and, therefore, no question of statutory notice would arise.
No notice is necessary if a lease of immovable property determined under clause (a) of Section 111 of the Transfer of Property Act by efflux of the time limited thereby."
18. Yet another judgment of the Honourable Apex Court reported in 1981(2) SCC 199 (Shanti Devi v. Amal Kumar Banerjee) would also affirm the principle laid down by the Honourable Apex Court in the above referred judgment. The relevant passage would run thus:
" If the period of lease had expired on January 10, 1970, the relationship of landlord and tenant ceased and the defendant became a trespasser. In the present case, the respondent who was the defendant , in Ground 6 of his memorandum of appeal before the High Court urged that the courts below should have held on the basis of the plaintiff's case read with the lease deed that the lease would expire on January 10,1970. There was, therefore, no question of service of any notice under Section 106 of the Transfer of Property Act. "
19. Therefore, there is no confusion that the tenancy existed in between the plaintiff and the first defendant, even though not terminated through the statutory notice issued under Section 106 of Transfer of Property Act, has come to an end by efflux of time when the period of lease agreed in between the parties was over on 30.09.2004 and the said lease period thus, lapsed during the pendency of the suit.
20. In various judgments of this Court, it has been categorically held that the subsequent events which are very much material relating to the subject matter of the suit could be taken note of and the Courts are empowered to mould the relief accordingly. Similarly, the Honourable Apex Court had also laid down the said principle in the judgment reported in (1997)9 SCC 654 (P.Sriramamurthy v Vasantha Raman) and the relevant passage, helpful for giving a finding in this case, would run as follows:
"It is true that the need for personal occupation was not pleaded. It is settled law that for moulding the relief, subsequent events can be taken note of. Under those circumstances, the relief of eviction could be granted on the ground of personal occupation."
21. The judgment of this Court reported in 1995 Law Weekly 732 (Jayaraman, A.M.V. v. Murugan Bus Service) is also helpful on this point. The relevant passage would run thus:
" Therefore, if a fact, arising after the 'lis' has come to court, has a fundamental impact on the right to relief or the manner of moulding it, is brought diligently to the notice of the court, it cannot blink at it or be blind to event which stultify or render inept the decretal remedy. "
22. In yet another judgment of this Court reported in 1999(2) Law Weekly 552 ( Nath, T.B. & 2 others v. Hindustan Petroleum Corporation Ltd. & another) it has been categorically laid down that when the suit for ejectment is pending and during the pendency of the suit, the lease period is terminated by efflux of time, the Court can take note of the subsequent event and accord the relief of ejectment. The relevant passage would be as follows:
" It is not as if the defendant is a protected tenant to continue in possession until he is evicted by virtue of such provision. Once the statutory renewal lapsed or ceased to operate, it follows automatically that the parties are placed back to the original position.
43. But for the introduction of the statutory provision, the defendant's possession would be illegal and the plaintiffs would be automatically entitled for recovery of possession. It is not as if the defendant has put forth any other claim in this respect, which would enable to continue in occupation. Therefore it follows that in the present suit itself the plaintiffs will be entitled to a decree as the period for which the statutory renewal had operated had already lapsed and the defendants have no further right to continue or insist, nor they could content at this stage that the defendant has to file a fresh suit or issue a fresh notice of termination."
The said judgment was questioned before the Honourable Apex Court in SLP.No.6067 of 1999 and the same was dismissed. The judgment of the Hon'ble Apex Court was also reported in the same journal 1999(2) Law Weekly 570 (Hindustan Petroleum Corporation Ltd. & another v. T.B.Nath & 2 others) which confirmed the judgment of this Court, referred supra.
23. When we consider the principles of law laid down by this Court as well as the Honourable Apex Court, the termination of tenancy by efflux of time i.e., on 30.09.2004 will be an important event and from the said date onwards, the first defendant should have been deemed as a trespasser and he has no right to seek for continuance of the tenancy or to stay in the premises as a tenant. If the suit is ordered to be dismissed for want of validity of notice to quit, it would be amounting to permit the first defendant who became the trespasser, by virtue of lapse of tenancy period by efflux of time and such dismissal of the suit would not render justice to both parties. The principle laid down by this Court reported in 1999(2) L.W. 552 (Nath, T.B. & 2 others v. Hindustan Petroleum Corporation Ltd. & another) would squarely apply to the facts and circumstances of the present case. Therefore, the first defendant is liable to vacate the premises even though the notice to quit issued in Ex.P16 is not found to be a valid notice one.
24. The contention of the learned counsel for the first defendant that the fourth defendant Hotel Aboorva Sangeetha was inducted only as a licencee and not a tenant, could not be accepted because the modification undertaken by the first defendant for accommodating the fourth defendant was without the consent of the plaintiff/landlord. If really the fourth defendant was a licensee he should take every utensil or articles and vacate the premises daily as per the license pleaded by the first defendant. It is an admitted position that there was a restaurant run by 4th defendant having its kitchen for preparation of food within the said premises and therefore, the arguments advanced on behalf of the first defendant that it was only a licence given to the fourth defendant cannot be sustained nor proved. Therefore, we could see that the occupation of 4th defendant was only by the way of subletting the premises and portion of the tenanted premises sub-letted to the fourth defendant shall also be liable to be vacated. Further, order of eviction passed against the first defendant and others shall also bind the fourth defendant. Therefore, we are of the considered opinion that the defendants are liable to vacate from the suit premises and in default to vacate the premises, they are liable to be ejected from the premises in accordance with law. Accordingly, both points are decided.
25. Point No. 3 :
The plaintiff had claimed a sum of Rs.3,41,330/- towards regularisation fee together with interest at 18% on the said sum Rs.3,19,000/- from the date of plaint till the date of realisation, payable by the defendants 1 to 3. The basis of the claim made by the plaintiff was that the first defendant had altered the portions without any consultation or consent of the plaintiff and he had unauthorisedly constructed the structures so as to accommodate the fourth defendant, i.e., Hotel Aboorva Sangeetha. It has also been stated in the plaint that the claim for the violation committed by the defendants was to the tune of Rs.3,18,750/- rounded to Rs.3,19,000/-, to which, the defendants are liable to pay the plaintiff. The letter dated 4.6.2002 issued by C.M.D.A. was towards the demand of Rs.7,30,500/-, being the regularisation fee and the plaintiff paid a sum of Rs.6,21,180/-, for which, the plaintiff is in no way responsible. However, the plaintiff had asked only 50% of the said amount paid towards regularisation fee and accordingly, the learned single Judge had also granted the relief to the extent of Rs.3,10,590/- towards the said claim.
26. On a careful analysis of the evidence and the receipts produced by the plaintiff, we could see that the plaintiff's claim of Rs.3,19,000/- is a bonafide one and however, the learned single Judge had granted only a sum of Rs.3,10,590/-. Therefore, we do not want to interfere with the finding reached by the learned single Judge in this regard. The defendants have no point to desist from paying the said amount to the plaintiff who paid the said money. Therefore, this point is also found in favour of the first respondent/plaintiff.
27. Point No.4:
In the earlier points, we have discussed and found that even though notice to quit is not sustainable, the defendants are found liable to vacate the premises and hand over the vacant possession of the suit properly due to efflux of time, on which date, the lease period ended and therefore, the future payment towards occupation of the premises by the defendants would be only towards damages for use and occupation. According to the terms of the lease agreement as already extracted supra, the future rent payable on and from 1.10.2001, the rent will be Rs.1,45,530/- for a period of 3 years. The said quantum of rent has been admittedly entered into between the parties applicable from the date, 01.10.2001. The amount awarded by the learned single Judge for future damages was at Rs.1,45,530/- with 20% of the same, till the date of delivery of vacant possession, is just and acceptable against the claim of Rs.2,40,000/- per month made by the plaintiff. Therefore, we have no other option to confirm the finding of the learned single Judge in this point also.
28. Point No.5.
In the aforesaid points, we have discussed and found that the finding of the learned single Judge regarding the notice to quit issued in Ex.P16 is not correct. However, the plaintiffs are entitled for vacant possession of the property from the defendants and in default a direction to eject them be ordered against the defendants due to efflux of time of the lease period. Therefore, we are of the considered opinion that the conclusion reached by the learned single Judge directing ejectment of the defendants from the suit property is not interferable. Similarly, the finding of the learned single Judge in respect of repayment of the regularisation fee and the payment of future damages are also confirmed. Accordingly, we find no other reason to interfere with the judgment and decree passed by the learned single Judge against the defendants and therefore, the judgment and decree passed by the learned single Judge are confirmed.
29. For the foregoing discussion had by us, we are of the considered view that the appeal is not sustainable and we confirm the judgment and decree passed by the learned single Judge. Accordingly, the appeal is dismissed with costs. Time for vacating the premises by the defendants is three months from today.
vsi