Andhra HC (Pre-Telangana)
Dr. B.L. Anand vs Jaffar Hussain on 7 August, 1998
Equivalent citations: 1998(6)ALD794, 1998(6)ALT770, 1999 A I H C 1690, (1998) 2 LS 611, (1998) 6 ANDHLD 794, (1999) 1 ICC 528, (1998) 6 ANDH LT 770
Author: T. Ranga Rao
Bench: T. Ranga Rao
ORDER P. Ramakrishnam Raju, J.
1. The above appeals arise out of a common judgment in OS No.1003 of 1983, OS No.l of 1984 and OS No.922 of 1991. All the suits were clubbed together and evidence was recorded in OS No.1003 of 1983, which is a suit for eviction of tenants. Dr B.L Anand, the first defendant in OS 1003 of 83 is appellant in CCCA No.64 of 1995. The first defendant-tenant Dr. B.L Anand is also appellant in CCCA No.177 of 195 since OS No.922 of 1991 filed by the landlord for recovery of arrears of rents for the first floor mulgis from 1-12-1980 to April, 1983 is decreed. He also filed CCCA No.196 of 1994 since OS No.l of 1984 filed by him was decreed partly only and as such he filed this appeal to the extent of disallowed claim. Ofcourse, CCCA 13 of 1995 was filed by the landlord as OS.700 of 1983 filed by him for recovery of rents from December, 1980 to April,. 1983 was dismissed, but however the CCCA 13 of 1995 was withdrawn on 6-7-1998 as his claim for arrears of rent was settled in the rent control proceedings initiated by the landlord for eviction of the tenants. Therefore, we are not concerned with CCCA 13 of 1995 any more.
2. As all the suits are disposed of by a common judgment, all the three appeals also can be conveniently disposed of likewise and the parties will be referred, to as arrayed in OS 1003 of 1983 in which evidence was recorded. The respondent-landlord in CCCA 196 of 1994 and CCCA 64 of 1995 filed cross-objections in so far as the decrees went against him.
3. The landlord let-out the premises bearing No. 5-9-48/4, ground floor at Basheerbagh, Hyderabad for a rent of Rs.525/-pcr month and later enhanced to Rs.550/-somewhere in 1976. At that time the first floor portion over the ground floor was not constructed and the first defendant offered to construct the first floor initially at his cost subject to adjustment of construction cost payable with interest at 36% per annum from out of the stipulated rent of Rs.1,500/- for the two mulgis to be constructed on the first floor. Accordingly, the landlord agreed and the first defendant constructed mulgis and he has been using the first floor portion also after completion of the mulgis. The tenants who are husband and wife paid rents up to September, 1980 and thereafter committed default of payment of rent. Hence the plaintiff issued a notice to the defendant for which the defendants sent an evasive reply. Hence, the plaintiff is constrained to file OS No 630 of 1983 for recovery of rents from October, 1980 to April, 1983 which was later renumbered as OS No.922 of 1991. As there is no change in the attitude of the defendants, the plaintiff also issued a legal notice under Section 106 of T.P. Act and accordingly tenninated their tenancy by the end of May, 1983. Having received the notice, the defendants did not vacate the suit mulgi and hence the plaintiff filed OS 1003 of 1983 against the defendants for recovery of possession of the suit mulgis as well as arrears of rent for May, 1983 together with future mcsnc profits from July, 1983 till delivery of possession. The first defendant-tenant also filed OS 1 of 1984 for recovery of construction cost for construction of the first floor mulgis with interest. His case is that he is in occupation ofthe premises bearing No.5-948/4 on a monthly rent of Rs.525/- subsequently enhanced to Rs.550/-, The landlord requested him to provide finance for construction of first floor on premises bearing Nos.5-9-48/3 and 5-9-48/4 belonging to the landlord and accordingly the tenant invested money for the said construction. The landlord settled the account with him on 16-9-1981 stating that he is liable to pay a sum of Rs.95,890/- after giving credit of Rs.5,000/- towards rent from 1-3-1981 to 1-9-1981. The landlord while confirming the amount of Rs.90,600/- drew by him as on 1-12-1980 after adjusting the amount of Rs.5,000/- delivered confirmation letter dated 29-11-1980. The tenant agreed for adjustment and for confirmation of the amount as payable by 1-12-1980 which sum as agreed shall carry interest at 3% per month. It is also his contention that the landlord owes a sum of Rs.1,28,406.65 paise to him as per the statement of account after deducting the rent due and payable to him..
4. In the lower Court landlord examined himself as PW1 and marked Exs.Al to A13 while the tenants examined one witness on their side and marked Exs.Bl to B15. The lower Court framed the necessary issues. On a consideration ofthe entire material on record, the lower Court decreed OS 1003/84 directing the tenants to deliver vacant possession of first floor mulgis constructed on ground floor mulgis 48/3 and 48/4. The landlord is also entitled to recover the arrears of rent for the months of May and June, 1983 at the rate of Rs. 1,500/- per month and fixture mesne profits from 1-7-1988 at the rate of Rs.1,500/- till the date of realisation. The first defendant-tenant was held entitled for refund of deposit amount of Rs.4,500/- from the plaintiff. OS No. 1 of 1984 filed by the first defendant-tenant was decreed for a sum of Rs.95,898/- with interest at the rate of 12% per annum from 2-9-1984 till date of suit. The lower Court also decreed OS 922 of 1991 for arrears of rent from 2-9-1981 to April, 1983 for a period of 20 months at Rs.1,500/-per month.
5. Sri Vilas V. Afzidpurkar, learned Counsel appearing for die landlord submits that when adjustment of rent out of the construction cost was admitted in OS 630 of 1983 which is renumbered as OS 922 of 1991 and OS No.700 of 1983 permitting amendment of the pleading of the landlord which was once refused is illegal and as such the landlord should not be permitted to take advantage of the amended pleas and inasmuch as there is an admission of the landlord that he agreed for adjustment of rent, there cannot be any eviction of the tenants. He further submits that as the landlord admitted that he is not the owner of 48/3 and so he is not also the owner of upper floor constructed over 48/3 and if that be so, the rent for each mulgi would be less than Rs. 1,000/- in which case, the Civil Court has no jurisdiction to entertain the suit for eviction, but the landlord has to take proceedings before the Rent Controller only. He also submits that the Civil Court cannot reduce the contractual rate of interest agreed to between the parties and the agreed rate of interest is neither unsurious nor unconscionable. Mr. Prabhakar, learned Counsel appearing for the landlord, oil the other hand, submits that OS 1003 of 1983 filed by the landlord for eviction was rightly decreed, but future mesne profits were not awarded at proper rate. It is also his contention that OS 1 of 1984 was wrongly decreed since first defendant-tenant lias volunteered to construct the mulgi on the first floor as he wanted additional accommodation and as such he cannot be permitted to lay any claim for recovery ofthe said amount nor interest thereon.
6. It is not in dispute that the first defendant-tenant entered into a lease agreement with the plaintiff on 19-12-1976 of mulgi bearing No.5-948/4 agreeing to pay the rent at Rs.525/- for the first 11 months and thereafter Rs.550/-. It is admitted by the plaintiff in his plaint in OS 630 of 1983 later renumbered as OS 922 of 1991 that on mutual understanding the defendants have constructed the first floor non-residential portion at their cost and the cost of construction was agreed to be adjusted in the monthly rents and the agreed rent of the said premises is Rs.1,500/-per month. Ofcourse, he also stated that the construction charges were adjusted in the monthly rents long back prior to 1980 which is evidently not correct as can be seen from the material produced in this case. The plaintiff also issued a registered notice tinder Ex.A8 on 31-12-1982 claiming rent from December, 1980 for which the first defendant-tenant issued a reply stating that at the request of the landlord he invested a sum of Rs.97,270/- by 1-3-1980 for construction and that the plaintiff settled the account with him on 16-9-1981 stating that he is liable to pay a sum of Rs.95,898/-after giving credit to a sum of Rs.12,000/-being the rent for the period from 1-3-1981 to 1-9-1981. He also passed a confirmation letter dated 26-11-1980 confirming an amount of Rs.90,000- as on 1-12-1980 after adjusting an amount of Rs.45,000/-. It is also agreed by the plaintiff that the amount shall carry interest at 3% per month from 1-12-1980. The plaintiff issued further reply under Ex.B16 dated 28-1-1983 denying the said adjustment or confirmation letter. It is curious to note that the plaintiff has asserted in this notice that the construction charges incurred by the first defendant was already adjusted in the past rents long back. No details whatsoever about amount incurred towards construction or the mondily rents for which the said charges were adjusted are forthcoming. Ex B-7 is receipt issued by the plaintiff to the first defendant on 9-5-1979 stating that he received a sum of Rs.50,000/-from the first defendant. Ex B8 is another receipt issued by him for a sum of Rs.200/- being the rent for door No.5-9^18/4 for the period between 19th and 31 st October, 1980. Under Ex.B9 dated 26-11-1980 he confirmed that as on 1st December, 1980 he is due to a tune of Rs.90,000/- and the said amount shall carry interest at 3% per month. Under Ex.B10 a sum of Rs.670/- is added to Rs.90,000/- and it is shown as Rs.91,270/- as on 1-3-1981. By 16-9-1981, the said sum of Rs.91,270/- was again shown as Rs.95,898/-after*adding interest and deducting rent. So it is clear by 16-9-1981, interest due on the amount advanced by the first defendant was added and the rent due by him was also deducted and the balance is worked-out. However, the learned Counsel for the plaintiff submits that these exhibits are not signed by the plaintiff and the signatures found therein are denied by him in his evidence. We have to see how far his contention stands the test of scrutiny. Although, the defendants have disclosed in their notice before the suits are filed that this statement of account and confirmation letters have been signed by the plaintiff he never took any steps to send them to the hand-writing expart for verification of his signatures. We ourselves compared his signatures with the admitted signatures singed in the deposition as well as the vakalat in the lower Court and we have absolutely no hesitation to come to the conclusion that these exhibits were signed by him and the unholy pica that they were never signed by him nothing but a tissue of falsehood. At this juncture, it is but appropriate to consider the contention advanced by Sri Vilas V. Afzulpurkar, learned Counsel for the defendants that the plaintiff in OS 630 of 1983 (renumbered as OS 922 of 1991} and OS 700 of 1983 admitted in the plaint that the first defendant has advanced and constructed mulgis on the first floor on mutual understanding at his cost and the same was agreed to be adjusted in monthly rents, but later changed his version by seeking amendment of the plaint to the effect that the defendants have constructed the first floor non-residential portion at their cost without any liability on the plaintiff to bear any portion of the cost of construction that may have been incurred by the defendants, which is wholly un-true and the lower Court ought not have permitted such an amendment and as such the defendants are entitled to question the order of amendment in the appeal and complete the plaintiff to confine himself to his original pleadings.
7. No doubt, the appellate Court while considering an appeal has power to alter or modify an interlocutory order which docs not decide the merits of the controversy in issue in the suit, but is only a step in reaching the decision in the dispute. In other words, all interlocutory orders \\ill not operate as res judicata within the meaning of Section 11 of Civil Procedure Code. For example, orders relating adjournment of the case, appointment of receiver or commissioner, stay of proceedings, casting of issues, summoning witnesses, calling for documents, remanding the case and many more such orders cannot operate as res judicata since they do not decide any matter in dispute arising in the suit. Even the same Court in respect of such orders has power to alter or vary them by subsequent applications on proof of new facts and subsequent events. Such fresh applications might be rejected if they arc filed without subsequent events as an abuse of the process of the Court and thus they may attain finality eventhough they do not strictly come within the meaning of Section 11 CPC (refer ). However, the appellate Court has got all the powers of the trial Court in addition to special powers conferred by the Code of Civil Procedure. Sub-section (1) of Section 105 CPC., reads as follows:
(1) Save as otherwise expressly provided, no appeal shall lie from any order made by a Court in the exercise of its original or appellate jurisdiction; but, where a decree is appealed from, any error, defect or irregularity in any order, affecting the decision of the case, may be set forth as a ground of objection in the memorandum of appeal.
(2) xxx .....
8. Corresponding Section 363 of 1859 Code had a narrow application whereas the 1908 Code has widened the scope. The distinction has been succinctly brought out in a decision of the Supreme Court in Satya Dhyan v. Smt Deorajin Debi, , wherein the Supreme Court held that "the present Code in its 105th Section uses practically the same phraseology except that the word " any such order" and an additional provision has been made in the second sub-Section in respect of orders of remand. The expression "such order" in Section 591 gave rise to a contention in some cases before the Privy Council that Section 591 applied to non-appealable orders only. This contention was overruled by the Privy Council and that view was adopted by the Legislature by changing the words "any such order" to "any order". The Supreme Court also held that " it is clear therefore that an interlocutory order which had not been appealed from either because no appeal lay or even though an appeal lay appeal was not taken could be challenged in an appeal from the final decree or order". Therefore, it is more than clear that any interlocutory order could be challenged in the appeal by taking a ground questioning the same. Of course, it is ahvays open to the appellate Court while judging the truth or otherwise of the pleading as amended by an order passed on application filed under Order 6 Rule 17 CPC, to see the reasons for changing the original version, it is open to the appellate Court to see whether the original pleading was due to inadvertence or was a bona fide mistake and whether the amended pleading \vas an after-thought or designed to get over a defect or butress a false case or to surmount some possible evidence which might be produced by the other side. This can always be done by the appellate Court even without varying the interlocutory order passed by the lower Court. The amendment sought in this case is wholly untrue when the plea is vested in the light of the evidence brought on record in the case. In Ex.B16 the notice that preceded the filing of the suits issued by the plaintiff, it is clearly admitted that the construction charges were already adjusted in the past rents meaning thereby UK construction charges are the liability of the plaintiff and so he adjusted the same towards past rents. In the plaints in OS 630 of 1983 (OS 922 of 1991) and OS 700 of 1983, the plaintiff admitted tliat the defendants have constructed the first floor non-residential portion at their cost and the same was agreed to be adjusted in monthly rents. Having regard to these pleas, it is now not open to the plaintiff to turn-round and say that the defendants constructed the first floor non-residential portion at their cost without any liability on the part of the plaintiff to bear all or any portion of the cost of construction as may have been incurred by them. No intelligible reason is assigned why an altogether different plea was taken at the earliest point of time and no satisfactory explanation whatsoever is forthcoming. Added to that, as already seen the plaintiff himself has issued to the defendants Ex B9. BIO and B11, which clearly show that he has admitted his liability for the expenditure incurred by the defendants towards construction of the first floor. In view of these documents for which there is no answer by the plaintiff except a bald denial, we have no hesitation to hold that the plaintiff cannot evade his liability to the defendants. We are inclined to accept the calculations made under Ex.Bll dated 16-9-1981 and hold that the plaintiff is liable to pay the first defendant a sum of Rs.95,898/- by 1-9-1981 after giving credit to the rent due to him by that date..
9. Learned Counsel for the defendants raised a contention that inasmuch as the plaintiff had admitted in his evidence that his son is the owner of 5-9-48/3, ground floor, the upper portion in the first floor corresponding to this premises also belongs to his son and as such the notice terminating the tenancy issued by the plaintiff is not valid for both the portions. In any event, the rent of Rs.1,500/- for two mulgis in first floor which is being claimed by plaintiff lias to be divided between the two mulgis and on such apportionment the rent for the plaintiffs mulgi would be Rs.750/- which is less that Rs. 1,0007- per month and as such the civil Court cannot entertain the suit for eviction. We may straightaway reject this contention inasmuch as no such plea was raised by the defendants in their pleadings. Even then, the learned Counsel for the defendants relying on a decision of the Supreme Court in Bhagvati v. Chandramaul, , submits that if a plea which is not specifically put-forth and yet it is covered by an issue by implication and the parties knew that the said plea was involved in the trial then, the mere fact tliat the plea was not expressly taken in the pleadings would not necessarily disentitle a party from relying upon if it is satisfactorily proved by evidence. In the said decision, the Supreme Court observed that it is hardly necessary to emphasis tliat it is undesirable and inexpedient to lay-down any general rule and the importance of the pleadings cannot be ignored and the trial Court in every civil case has inevitably to be confined to the issues framed in the suit and the whole object of framing the issues would be devoid if the parties arc allowed to travel beyond them and claim reliefs on grounds not made in the pleadings and not covered by the issues. But the Supreme Court recognised certain exceptions in certain extreme cases. We are of the view that the case on hand is not such an extreme case and the defendants cannot spring a surprise on the plaintiff by taking one or two sentences from the deposition of the plaintiff that the Court has no jurisdiction and that the suit for eviction is not maintainable. Had there been a proper plea to this effect the opposite party would have been in a position to traverse the same and he would be put on notice as to the exact case of the plaintiffs which he is required to meet. In addition to this, the learned Counsel for the landlord submits that 5-9-48/3 originally belongs to his wife and the same was gifted to their daughter who again gifted the same through a gift-deed dated 24-11-1978 to his son as such there is no change in the ownership of the property after the construction of the first floor portion or commencement of the lease from 1-10-1980 and the defendants recognised the plaintiff as their landlord. In view of all these, we have no hesitation to hold that the contention of the defendants in this regard has no substance. Learned Counsel for the plaintiff submits that the plaintiff had issued a notice to the defendants on 23-4-1983 terminating the tenancy from May, 1983 and thereafter till possession is delivered the defendants are liable to pay damages for use and occupation and accordingly he claimed damages.
10. The claim is restricted to Rs. 1,500/-pcr month from July, 1983 to July, 1984. From August, 1984 to July 1986 he claimed damages at the rate of Rs.6/- sq.ft and from August, 1988 to July, 1991 he claimed at Rs.8/- per sq.ft and from August, 1988 to July, 1991 he claimed at Rs.10/-per sq.ft. In order to substantiate his claim he filed Exs. A12 and A13 to show the prevailing rates of rent in the locality. Ex.A12 is a registered lease-deed executed by the lessor in respect of 800 sq.ft of space for a sum of Rs.2,400/- as rent out of which Rs.1,500/- shall represent the rent and the balance for amenities. The lease period commenced from 1st July, 1985 and shall be in force for a period of 5 years and the same is extendable at the option of {he lessee for over 5 years with an increase of rent by 20%. Ex.AIS is another registered lease-deed which is in respect of 800 sq.ft in the first floor in Basheer Bagh. The lease period commences from 15th April, 1985 for a period of 8 years and the agreed rent is Rs.4,200/- out of which a sum of Rs.1,500/-is stipulated towards lease rent and the balance towards fittings. An option is provided to the lessee for a further period of 5 years on increased rent by 20%. Ofcourse, none of the parties nor attestor of those documents was examined. Therefore, mere production of those documents, in our view is not sufficient to establish the prevailing rates of rent in the locality. However, having regard to the evidence in the case, we are of the view that damages from July, 1983 to 31st July, 1984 can be awarded at Rs.1,500/- per month as claimed by the plaintiff. From August, 1984 to July, 1989 damages can be awarded at the rate of Rs.250/- per sq. ft. from August, 1989 to July, 1994 at the rate of Rs.325A per Sq.ft. and from August, 1994 to till date of vacating premises at Rs.400/- per sq.ft.
11. Learned Counsel for the defendants submits that in OS 1 of 1984 the lower Court granted interest at 12% per annum from 2-9-1984 till realisation on the amount of Rs.95,898/- which is inadequate when the contract rate of interest is 36% per annum. We have confirmed the figure of Rs.95,898/-as per Ex.B11. The learned Counsel also relies on the decision of the Supreme Court rendered in State Bank of Patiala and another v. Harbans Singh, and submits that in respect of a loan advanced by a bank for construction of building with an agreement to lease-out the building back to the bank on simple interest at 15% per annum on the amount would be reasonable. Relying on the said judgment, we feel that the plaintiff in OS 1 of 1984 is entitled to interest at 15% per annum from 2-9-1981 till the date of suit and at 12% from the date of suit till date of realisation.
12. In the result, CCCA 196 of 1994 is allowed partly to the extent indicated above and the first defendant is entitled to refund of a sum of a Rs.4,500/- being the deposit of rent for three months with the plaintiff and the cross-objections filed by the plaintiff are dismissed. CCCA 64 of 1995 is dismissed so far as relief of eviction of the defendants is concerned, and the cross-objections filed by the respondent in this appeal are dismissed, but mesne profits arc restricted to the extern indicated above. CCCA 177 of 1995 is filed by the tenant questioning the decree granting arrears of rent from 2-9-1981 to April, 1983 at the rate of Rs.1,500/- per month. As there is no proof of payment of any rent during this period, the plaintiff is entitled to a decree. Accordingly, we confirm the decree passed in OS No.922 of 1991. Time for vacating the premises three months. No costs.