Andhra HC (Pre-Telangana)
Sohanlal Agarwal vs Dr. Zakir Hussain on 18 April, 2003
Equivalent citations: 2003(4)ALD279, AIR 2003 (NOC) 561 (AP), 2003 A I H C 3321, (2003) 4 ANDHLD 279, (2003) 10 ALLINDCAS 170 (AP)
JUDGMENT M. Narayana Reddy, J.
1. This Judgment, according to Law, based on the legal material placed, on Record, arises out of a Second Appeal, filed by the sole appellant, against the sole respondent, under Section 100, CPC, questioning the, validity and legality, of the adjudications made by, and set forth in para 2, infra.
2. Judgment and Decree, both, dated 12-12-1994, of the Court of the Addl. Chief Judge, City Civil Court, Secunderabad, made in A.S.No. 51/89, of its file, confirming, in toto, the earlier Judgment and Decree, both, dated 18-1-1989, of the Court of the XI Asst. Judge, City Civil Court, Secunderabad, made in O.S.No. 3410/84.
3. Perused the material papers of the Record.
4. Arguments were heard of the learned Counsel for both the parties.
5. The sole appellant in this Second Appeal corresponds to the sole appellant in the said A.S. No. 51/89, of the said First Appellate Court and the sole defendant in the said O.S. No. 3410/84, of the said Trial Court The sole respondent herein corresponds to the sole respondent in that First Appeal, and the sole plaintiff in that suit.
6. The parties are, hereinafter, referred to, with reference to their respective descriptions before the said Trial Court, in that suit, unless, otherwise, so specified.
7. The subject-matter of the said suit, as also, the First Appeal, as well as, this Second Appeal, as described in the schedule of the plaint, is set forth, in brief, as under:-
"One mulgi (shop) bearing shop No. 1 in plot No. 2 of Sy.No. 25 of Laxminagar, Secunderabad Cantonment, and bounded on its four sides, as described, in detail, in that schedule and the plaint underneath it."
8. In respect thereof, the sole plaintiff filed the said O.S. No. 3410/84, against the sole defendant in the said Trial Court, inter alia, for the main reliefs as set forth, hereunder:-
(a) To direct the defendant, to quit and deliver vacant possession of the plaint scheduled mulgi to the plaintiff;
(b) To direct the defendant, to pay to the plaintiff, a sum of Rs. 3,500/-, towards mesne profits, from 1.4.1984 to 31.10.1984, at Rs. 500/-, per month;
(c) To direct the defendant, to pay to the plaintiff, future mesne profits at Rs. 500/ -, per month, from the date of filing of the suit, till actual delivery of vacant possession of the said scheduled mulgi, to the plaintiff; and
(d) For costs of the case.
9. The material part of the case of the sole plaintiff, as set forth in his plaint in O.S. No. 3410/84, of the said Trial Court, and insofar as the same is, factually and legally, germane, for the purposes of this judgment in the Second Appeal, is set forth, in brief, as under:
(a) The plaintiff is the owner of the plaint scheduled mulgi.
(b) The plaintiff leased out the said mulgi, to the sole defendant, on a monthly rent of Rs. 240/-, under a lease agreement, dated 1.4.1983, for 11 months. The rent is payable on or before 7th of each English Calendar month (gregarian).
(c) The said tenancy of the defendant stood terminated on 31-3-1984, due to efflux of time.
(d) Even there-before, the plaintiff, orally informed the defendant, about the said expiry of the said lease period, and requested him to vacate the said mulgi, and delivery of vacant possession thereof, to him, for his personal occupation, for setting up his (plaintiff) private practise, as a Doctor, along with his wife, who is also a Doctor.
(e) The tenancy of the defendant stood terminated due to efflux of time.
(f) However, the plaintiff also sent a legal notice, dated 8.6.1984, informing the defendant, that, he is a tenant by holding over, and that, he is liable to pay mesne profits, or, damages, for illegal use and occupation, from 1.4.1984 at Rs. 500/-, per month, etc., but, the defendant, neither, replied thereto, nor complied therewith.
(g) Hence, the plaintiff filed the suit against the defendant, for the reliefs set forth in para 8, supra.
10. The material part of the case of the sole defendant, as set forth in his Written Statement in the said O.S. No. 3410/84, insofar as the same is factually and legally germane, for the present judgment in the Second Appeal, is set forth, in brief, as under:-
(a) It is false to claim, that, the plaintiff requires the scheduled mulgi, for his personal occupation.
(b) The said mulgi, was constructed more than 10 years back. Hence, the Civil Court has no jurisdiction to entertain the suit, and that, it is only the Rent Controller, which will be competent to order eviction.
(c) There are two mulgies of the plaintiff, which are still vacant and are in possession of the plaintiff But, however, the plaintiff is not making use of them. Hence, he is not entitled to claim the present plaint scheduled mulgi, for his personal occupation.
(d) The defendant enhanced the rent, from Rs. 200/- to Rs. 240/-, per month. But, the plaintiff, being, not satisfied with the same, began demanding enhancement of rent to Rs. 500/-, per month. The defendant did not agree for the same, but, agreed to increase the same, to Rs. 280/-, per month, but the plaintiff did not agree for it.
(e) Hence, the plaintiff started evading to receive the rents, even though tendered by the defendant, by Money Orders. Hence, the defendant filed RC.No. 350/ 94, before the Rent Controller, Secunderabad, under Section 8 of the Rent Control Act, for deposit of rents, which is pending.
(f) The notice of termination of the tenancy of the defendant, issued by the plaintiff, is not valid and proper, and not in accordance with the requirements of Section 106 of the Transfer of Property Act.
(g) The claim of mesne profits of Rs. 500/-, per month, is exorbitant, and highly excessive.
(h) Hence, the suit against the defendant has to be dismissed, with costs to him.
11. On the basis of the respective pleadings of both the parties in the suit, the Trial Court settled the issues, as under, for trial by it:-
(1) Whether this Court has got jurisdiction to try the suit?
(2) Whether the tenancy of the defendant stands terminated by 31-3-1984 by efflux of time?
(3) Whether the notice of termination is valid and proper?
(4) Whether the plaintiff is entitled for the mesne profits as prayed for?
(5) To what relief?
11-A. Later, the Trial Court tried the said OS No. 3410/84, in the process whereof, it recorded the oral evidence of PW1 and DW1, and exhibited the documentary evidence, by way of Exs.A.1 to A.5 and Ex.B1, and, later, after arguments thereinto, finally, adjudicated thereupon, by its judgment and Decree, both, dated 18-1-1989, set forth in para 2, supra, as under:
(a) Directing the defendant, to vacate the plaint scheduled mulgi, and, to deliver vacant possession thereof, to the plaintiff;
(b) Directing the defendant, to pay to the plaintiff, mesne profits, at Rs. 240/-, per month, from 1-4-1984, till actual delivery of possession, as directed by Clause (a), supra;
(c) Court-fee shall be paid by the plaintiff, on the future mesne profits; and
(d) Directing the parties to the suit, to bear their own costs, incurred therein.
12. Aggrieved thereby, and, questioning the, validity and legality, thereof, the sole defendant filed the said A.S.No. 51/89, in the said First Appellate Court, which, after due enquiry thereinto, finally, adjudicated thereupon, by its now impugned judgment and Decree, both, dated 12-12-1994, as set forth in para 2, supra, as under :-
(a) Confirming, in toto, the judgment and Decree of the Trial Court, set forth in the immediately preceding paragraph; and
(b) Directing the sole appellant/defendant, to pay to the sole respondent/plaintiff the costs of that First Appeal.
13. Aggrieved thereby, and, questioning the, validity and legality, thereof, the sole defendant filed the present Second Appeal, as set forth in paras 1 and 2, supra.
14. After perusing the Record, and the impugned judgment of the First Appellate Court, and hearing the learned Counsel for both the parties, this Court formulated (3) substantial questions of Law, as prescribed by Sub-section (4) of Section 100, CPC, as set forth, hereunder:
(1) "Whether the First Appellate Court erred in thinking that, the tenant is not a tenant holding over, even though the rent is accepted after the expiry of the lease period, and the tenant continues to be a tenant holding over, and not tenant at sufferance, according Section 116 of the TP Act?
(2) Whether the lower Court erred in decreeing the suit, having held, that, the notice terminating the lease is not valid according to Law? And (3) The lower Court ought to have dismissed the suit, on the principles laid down in , etc.?"
15. In respect thereof, the learned Counsel for the appellant/defendant relied upon two Rulings, as set forth, hereunder:-
(1) Satish Chand Makhan and Ors. v. Govardhan Das Byas and Ors., ; and (2) Kai Khushroo Bezonjee Capadia v. Bai Jerbai Hirjibhoy Warden and Anr., AIR 1949 FC 124.
16. The learned Counsel for the respondent/plaintiff relied upon five Rulings, as set forth, hereunder: -
(1) Bhawanji Lakhamshi and Ors. v. Himatlal Jamnadas Dani and Ors., ;
(2) Ganga Dutt Muraka v. Kartik Chandra Das and Ors., ;
(3) Mulpuri Venkateswara Rao v. Sangapalli Kanyakaparameswari, 1986(1) ALT 539;
(4) Thakuruddin Ramjash v. Sourendra Nath Mukherjee, ; and (5) Gordhan v. Ali Bux, .
17. The relationship between the sole plaintiff and the sole defendant is admitted, as landlord and tenant, in respect of the plaint scheduled shop.
18. The last, or, latest, lease, before the suit, in respect thereof, is admitted as Ex.A.3, dated 1-4-1983.
19. Hence, Ex.B1, earlier carbon copy of the rent agreement in between the same parties, and, dated 13-4-1982, exhibited by the defendant, as Ex.B.1, will have no significance, because, it preceded Ex.A3, dated 1-4-1983.
20. Hence, the case, on hand, will be governed by the terms of the said Ex.A3, dated 1-4-1983, which immediately preceded the suit.
21. The notice-to-quit under Section 106 of the Transfer of Property Act, 1882, was given on 8-6-1984, in the immediate succeeding year, the office copy whereof is exhibited as Ex.A1. The postal acknowledgment is Ex.A2, and the reply thereto, is Ex.A4.
22. The said Trial Court framed an issue, as Issue No. 1, as to, whether, the Civil Court has jurisdiction to entertain the suit in respect of the said eviction proceedings, or, the Rent Controller under the A.P. Buildings (Lease, Rent and Eviction) Control Act, 1960, governs the case, on hand, etc., and that, hence, the suit is not maintainable in a Civil Court, etc.
23. On this Issue No. 1, the Trial Court recorded a finding, that, the Civil Court has jurisdiction, etc. This is confirmed by the First Appellate Court.
24. Also, at the time of the arguments, the learned Counsel for both the parties, conceded, that, it is, only the Civil Court, that has jurisdiction over the plaint scheduled shop, and the reliefs claimed in respect thereof, and that, the Rent Controller has no jurisdiction, etc. Hence now this aspect doesn't arise for consideration, at all.
25. So, therefore, the scheduled shop, and the reliefs claimed in the suit, will be governed by the relevant provisions of the said Transfer of Property Act.
26. As aforesaid, the plaintiff filed the suit, for eviction of the defendant, from the scheduled shop, on the ground, that, the tenancy of the defendant, stood determined by 31-3-1984, due to efflux of time prescribed under Ex.A.3, as also, subsequently, because, the defendant continued therein as tenant, by holding over, he terminated the tenancy, by way of Ex.A1, notice.
27. While so, the defendant claimed, that, because, (he defendant did not agree to enhance the rent, from Rs. 240/-, per month, to Rs. 500/-, per month, and agreed to enhance the rent to Rs. 280/-, per month, the plaintiff filed the suit with false allegations, etc., and that, in any case, the said Exs.A1 notice, terminating the tenancy, is not valid and proper, etc., and that, hence, the suit has to be dismissed, with costs.
28. As set forth in paras 15 and 16, supra, both the parties relied upon the Rulings of the Supreme Court and Federal Court and this High Court and some other High Courts. However, all the Rulings will not, ipso facto, apply to a given case, on hand, unless, they postulate a universal proposition of Law.
29. So, therefore, at the first instance, the factual aspects will have to be found, and recorded, on material aspects, and then only, the application, or, otherwise, of the legal position postulated in the Rulings relied upon by both the parties can be decided, as to, whether they apply to the case, on hand, or, not.
30. A direct examination of Ex.A3, dated 1-4-1983, rental agreement between the parties, will reveal, that, by un-numbered para (2) thereof, as well as, Clause (1) thereof, the period of lease agreed is 11 months, from 1-4-1983. So, therefore, it expires by 29-1-1984 (leap year). So, therefore, after expiry of this period of 11 months, the defendant will be a tenant at sufferance. Hence, no notice to quit is required, because, by operation of that Sub-section (a) of Section 111 of the said TP Act, the tenancy became automatically determined by efflux of time, by the mid-night of 29-2-1984.
31. Had, subsequently, that is, from 1-3-1984, and thereafter, for any month, or, months it is proved, that, the plaintiff, or, his representative, received any rent from the defendant, and permitted him to continue in possession of the said shop, then, as contemplated by Section 116 of the said Act, the defendant will become a tenant by holding over, as contemplated by that Section, in which case, again, the tenancy will have to be terminated by 15 days notice, as contemplated by Section 106 of the said Act, because, the scheduled premises is a shop room.
32. While so, in para 6 of the written statement, the defendant specifically pleaded, as set forth hereunder. He is bound by his pleading. He cannot take a different plea, at the time of arguments. No evidence against, or, contrary, to that pleading can be looked into, much less, construed, or, accepted and still, much less, acted thereunder, under Law. That para 6 of the written statement is re-produced, hereunder, verbatim, for better appreciation of the defence of the defendant:
"It is stated that defendant aboue named enhance the rent from Rs. 200/- to Rs. 240/-per month. Plaintiff was not satisfied with him. He began demanding enhancement of rent of Rs. 500/- per month. Defendant did not agree to it, but expressed his willingness to increase the rent reasonably to Rs. 280/-per month, and the same is not agreeable to the plaintiff. Therefore, he was evading to receive the rents tendered to him and also by money orders. In those circumstances and after remitting the rents for three months, defendant was constrained to file RC No. 350/84 on the file of Rent Controller, Secunderabad, for depositing of rents under Section 8 of Rent Control Act. The said petition is now pending."
33. A reading of the said re-produced para 6 of the written statement of the defendant will make it manifest, that, even by that pleading itself, the defendant categorically admitted, that, because, the plaintiff did not accept the rent of Rs. 280/-, per month, and evaded to receive the same, he filed RC No. 350/84, and deposited rents into that Court, etc. In that para, the defendant pleaded, that, the plaintiff demanded enhancement of rent, from Rs. 240/-, per month, as agreed, in Clause (3) of Ex.A3, to Rs. 500/-, per month, but, he agreed to enhance only to Rs. 280/-, per month, the plaintiff did not agree, and therefore, evaded receipt of rents. This is, obviously, after the efflux of time stipulated by the said Ex.A3, from the mid-night of 29-2-1984.
34. So, therefore, from the pleading of the defendant itself, the defendant cannot be construed, under Law, as a tenant by holding over, with effect from the midnight of 29-2-1984, within the, factual and legal, scope and ambit and meaning of Section 116 of the Transfer of Property Act. So, therefore, no notice is required to the defendant, under Section 106 of the Transfer of Property Act, before filing of the suit, even if, the suit was filed in September, 1984.
35. Had the plaintiff received rents, either, at the agreed rate of Rs. 250/-, per month, or, the alleged enhanced rate of Rs. 280/-, per month, or, so Rs. 500/-, per month, after the said efflux of time, that is, from 1-3-1984, onwards, and before filing of the suit, then, it can be said, or, construed, that, the defendant transformed himself into a tenant by holding over, as contemplated by the said Section 116 of the said Act, requiring notice of termination, under Section 106 of the said Act. However, because, here, things are otherwise, no such notice is required.
36. When, in fact, the pleading of the defendant in para 6 of the written statement is, as set forth in para 32, supra, then, at the time of arguments into this Second Appeal, or, even before the First Appellate Court, or, the Trial Court, the defendant cannot be allowed to prove by oral, or, documentary, evidence, that, after efflux of time, that is, from 1-3-1984, and before filing of the suit, in September, 1984, the plaintiff received rent at any of the foregoing rates, and thereby, permitting the defendant, to continue in the said shop etc. So, no amount of the evidence, if any, adduced by the defendant, can be looked into, much less, acted upon, on that aspect. It is well settled Law, that, there cannot be proof, without a pleading, and much less, contrary to the pleading.
37. Even otherwise, the case of the defendant can be examined in respect thereof, for a moment, as under.
38. The defendant sought to rely upon the said Exs.A1, dated 8-6-1984, issued by the plaintiff. A direct examination of para 3 thereof, will categorically disclose, that, thereby, therein, the plaintiff did not, even remotely, admit, that, he agreed to accept, or, accepted, much less, permitted the defendant, to continue in occupation of the said shop, after 29-2-1984. As can directly be seen from that para 3 of Exs.A1, therein, the plaintiff, merely mentioned about the request made by the defendant, to permit him to continue, till June, 1984, and, to vacate thereafter, etc., Nowhere, therein, the plaintiff, even remotely, mentioned, that, the plaintiff allowed, or, permitted, or, authorised the defendant, to continue in possession, or, accepted the request of the defendant. So, it is, only, the mention by the plaintiff, of the request made by the defendant, and, nothing, there-beyond. Nowhere, therein, did the plaintiff admit, that, he received rent after the expiry of the lease period.
39. Even otherwise, a reding of para 2 of the said Exs.A1 will disclose, that, thereby the plaintiff stated, that, the defendant is a trespasser, etc. So, therefore, the contents of Exs.A1 will not be of any help, to substantiate the version of the defendant.
40. The oral evidence of the plaintiff, as PW1, and the defendant, as DW1, also, do not substantiate the alternate case of the defendant, at the time of the arguments, that, the defendant is a tenant by holding over, and hence, require valid notice to quit, etc.
41. Even otherwise, as already found, such oral evidence cannot be looked into, or, acted upon, contrary to the said pleading of the defendant.
42. So, therefore, it is manifest, that, the said Exs.A1, lease, which became terminated, automatically, due to efflux of time, with effect from the mid-night of 29-2-1984, continued till the month of filing of the suit, in September, 1984. Hence, as already found, no notice under Section 106 of the Transfer of Property Act, is required, and the suit can, straightaway, be filed for eviction.
43. As already found, had it been proved, that, the defendant is tenant by holding over after, 29-2-1984, and before filing of the suit, then, such a notice is required, but, in the facts and circumstances of the case, no such notice is required.
44. In fact, the evidence of PW1, as well as, the cross-examination of DW1, as also, the contents of Ex.A.1-Notice, will categorically disclose, that, all through, after the expiry of the lease period, the plaintiff has been treating the defendant, only, as a trespasser, i.e., the tenant at sufferance, requiring no notice to quit, under Section 106 of the said Act.
45. Hence, even if, Exs.A1- Notice, issued in the month of June, 1984, is not in consonance with the requirements of said Section 106 of the Transfer of Property Act, and, even if, 15 days clear notice is not there, from the date of its issue, and service on the defendant disclosed by Ex.A2, postal acknowledgment, still, it will not be of any adverse consequence to the plaintiff, because, no notice is required, at all.
46. Even otherwise, Ex.A2-acknowledgment discloses, that, on 14-6-1984, the defendant received Exs.A1. By Exs.A1, the defendant was called upon to vacate by 1-7-1984. So, the intervening period is more than 15 days, and, hence, is inconformity with the statutory notice, contemplated by the said Section 106 of the said Act.
47. Again, there is no evidence, to show, that, subsequent to Exs.A1, the plaintiff received rent, before filing of the suit in September, 1984. Nor, does, the reply notice, covered by Ex.A4, disclose, much less, prove, the same.
48. So, therefore, even examined, alternatively, the notice, covered by Exs.A1, issued prior to the suit, even if two months intervened in between, is valid and legal. Because, as already found, there is no proof, that, subsequently, in between that period, the plaintiff received rent from the defendant, or, authorized him, in any other manner, to continue in possession, lawfully, during that period.
49. So, therefore, examined from any point of view, there is valid termination of the tenancy, and hence, the defendant became a tenant at sufferance, either, from 1-3-1984, or, in the alternative, from 1-7-1984.
50. Even if, earlier determination from 1-3-1984 is valid, the subsequent issue of Exs.A1 in June, 1984 will not invalidate the earlier determination.
51. In any case, the suit filed after either, or, both, the determinations of lease, was filed, validly and legally, as the defendant is a tenant at sufferance, from either of those two dates, and, in any case, before filing of the suit.
52. Now, the application, or, otherwise, of the foregoing Rulings, relied upon by both the parties, can be examined, in that factual background, as under:-
Rulings for the defendant/appellant:
(1) In Satish Chand Makhan and Ors. v. Govardhan Das Byas and Ors., , there is no evidence to show that the lease covered by that ruling is for a definite period, to continue the same, as that, it expired after such date, or, period. While so, in the case, on hand, the lease is expired due to efflux of time. Hence, this Ruling doesnot apply to the case, on hand.
(2) Kai Khushroo Bezonjee Capadia v. Bai Jerbai Hirjibhoy Warden and Anr., AIR 1949 FC 124, pertains to the case, where the landlord received rent after the termination of the lease. Hence, it has no application to the case, on hand.
Rulings for the plaintiff/respondent:
(1) Bhawanji Lakhamshi and Ors. v. Himatlal Jamnadas Dani and Ors., , postulates, what constitutes a tenant by holding over, within the meaning of the said Section 116 of the said Transfer of Property Act. When, the case, on hand, is examined from the legal position postulated in this Ruling, it will be manifest, that, the defendant is not a tenant by holding over, as already found, earlier.
(2) Ganga Dutt Muraka v. Kartik Chandra Das and Ors., , pertains to a case governed by the provisions of Rent Control Act, as can directly be seen therefrom. While so, the case, on hand, is governed by the Transfer of Property Act, and not by that Special Act. Hence, this Ruling has no application to the case, on hand.
(3) In Mulpuri Venkateswara Rao v. Sangapalli Kanyakaparameswari, 1986 (1) ALT 539, it also postulates the difference between a 'tenant holding over' and 'tenant at sufferance' and the distinction in between the two. It also applies to the case, on hand, and leads to the same conclusion, as already arrived at by me, earlier.
(4) Thakuruddin Ramjash v. Sourendra Nath Mukherjee, , also postulates as to what is meant by tenant holding over, etc. The legal position postulated herein also applies to the case, on hand.
(5) In Gordhan v. Ali Bux, , also, especially, para 14 thereof, supports my foregoing findings.
53. I, therefore, record my finding on substantial question No. l, of Law, that, the First Appellate Court did not commit an error in finding, that, the defendant is a tenant at sufferance. He is not a tenant by holding over.
54. I, therefore, record my finding on substantial question No. 2, of Law, that, the First Appellate Court did not error in decreeing the suit, while finding, that, the notice of terminating the tenancy is not valid, according to Law.
55. Even otherwise, even considering the material, as aforesaid, I am of the considered opinion, that, the impugned judgment and Decree of the First Appellate Court do not suffer from any inherent illegality, or, infirmity, or, perversity, or, abnormality, or, illegal appreciation of the material, by that Court, or, in interpretation of any statutory provision, or, document and, thereby, ipso facto, resulting in grave miscarriage of substantial Justice, so as to warrant the High Court, to interfere therewith, as a special, or, exceptional, or, extraordinary, case, either under Section 100, or, 103 both, of CPC.
56. Hence, the Second Appeal is devoid of all, factual and legal, merits, and, hence, it is liable to be dismissed, in toto, as such, as is being done, hereunder.
57. Hence, the High Court both hereby adjudicate upon the Second Appeal, dismissing the same, in toto, but, with costs to none.