Andhra HC (Pre-Telangana)
E. Chitra Ramacharandas vs National Remote Sensing Agency, Hyd. ... on 27 June, 2000
Equivalent citations: 2000(5)ALD161, 2000(5)ALT258, AIR 2001 ANDHRA PRADESH 20, (2000) 5 ANDHLD 161, (2000) 4 CURCC 464, (2000) 5 ANDH LT 258, (2000) 2 RENCR 572, (2001) 1 RENCJ 607
Author: C.V.N. Sastri
Bench: C.V.N. Sastri
JUDGMENT
1. These two appeals can be disposed of by a common judgment as the question involved is one and the same and the facts of the two cases are identical.
2. The appeals arise out of two suits filed by two different landlords, owning separate portions of the same building, against their common tenant for eviction and for mesne profits or damages for use and occupation.
3. It is not in dispute that the suit premises were leased out by the plaintiffs to the defendants under separate lease agreements dated 16-2-1979 for a period of two years with effect from 16-4-1978 on payment of rent at the rate of Rs.0.63 ps. per sft. The lease period expired by 15-4-1980. Before the expiry of the lease period i.e., on 7-1-1980, the defendants addressed a letter to the plaintiffs seeking extension/renewal of the leases. On 20-1-1980 the plaintiffs sent a reply stating that extension of the leases will be considered only on payment of rent at the rate of Rs.2.00 per sft. A joint meeting was held in March, 1980 in which the defendants offered to increase the rent only by Rs.0.10 ps., per sft. as against the plaintiffs' demand of Rs.2.00 per sft. The plaintiffs did not accept the said offer and demanded the defendant to vacate the suit premises by 15-4-1980. On 14-4-1980 the defendant sent a letter to the plaintiffs to the effect that status quo be maintained as per the original lease agreements dated 16-2-1979. On 15-4-1980 the plaintiffs issued telegrams to the defendants asking the defendant to vacate the suit premises forthwith. On 16-4-1980 the defendant sent a reply telegram suggesting further negotiations. As there was no settlement, the plaintiffs issued quit notice on 21-4-1980 to the defendant calling upon the defendant to vacate the premises by mid-night of 15-5-1980 and claiming damages for use and occupation at the rate of Rs.2.00 per sft. After some further correspondence between the parties, which proved futile, the suits were filed on 10-10-1980.
4. The suits were resisted by the tenant contending that the plaintiffs are not entitled to demand enhancement of rent at the rate of Rs.2.00 per sft. or to evict the defendants from the suit premises, that there is no valid termination of the tenancy and that the quit notice dated 21-4-1980 is not valid or proper and that the defendant is not liable to pay any damages for use and occupation over and above the agreed rent as claimed by the plaintiffs and that the suits are not maintainable.
5. While the suits were pending, the defendant vacated the suit premises in the month of August, 1983. It is not in dispute that the rents at the agreed rate were paid up to that date and the same were received by the plaintiffs under protest.
6. So the only questions which survived for consideration in the suits were whether the quit notices dated 21-4-1980 were valid and whether the plaintiffs were entitled for mesne profits or damages for use and occupation as claimed.
7. The trial Court dismissed the two suits holding that the quit notices dated 21-4-1980 issued by the plaintiffs terminating the tenancy are not valid and that the plaintiffs are not entitled to claim mesne profits at Rs.2.00 per sft. and that the rent paid was sufficient. The parties were directed to bear their respective costs.
8. The learned Counsel, appearing for the plaintiffs/appellants, assailed the judgments under appeal by contending that quit notice under Section "106 of the Transfer of Property Act is not necessary as the lease expired by efflux of time and the quit notice dated 21-4-1998 was issued merely by way of abundant caution. The learned Counsel further contended that even otherwise the quit notice is perfectly valid and the plaintiffs are entitled to mesne profits or damages as claimed.
9. On the other hand, the learned Counsel appearing for the respondent-defendant sought to sustain the judgment of the lower Court by submitting that the lease deed dated 16-2-1979, which is unregistered and which is for a period of two years, is valid only for the first one year and it is invalid for the rest of the demised period. After the expiry of the first year of the lease period, the tenant continued in possession as tenant holding over from month to month. As such a proper notice to quit as per Section 106 of the Transfer of Property Act is required. According to Section 110 of the Transfer of Property Act, the first date on which the tenancy commenced has to be excluded in computing the month of the tenancy. So computed the monthly tenancy commences from 17lh of every month and ends with 16th of the following month. But the quit notice dated 21-4-1980 purported to terminate the tenancy from the mid-night of 15th May, 1980 and as such it is not valid. In the absence of a valid quit notice, the claim for damages for use and occupation is not maintainable and only the agreed rent is payable.
10. The above contentions advanced on behalf of the defendant found favour with the lower Court. For arriving at the conclusion that the quit notice is not valid, the lower Court mainly relied on the decision of the Supreme Court in Dattonpant v. Vithalrao, . This judgment, in my view, has no application to the instant case, as the facts are distinguishable. In the instant case after the expiry of the contractual tenancy, plaintiffs/landlords have not either received the rents or otherwise assented to the continuance of the tenant in possession. They made it clear that unless the tenant is agreeable for enhancement of the rent to Rs.2.00 per sft., they are not willing for extending or renewing the lease and insisted that the tenant should vacate the premises by 15-4-1980. They have sent telegrams to that effect and as the defendant did not comply, they issued quit notices immediately on 21-4-1980. In Santi Devi v. Amal Kumar, AIR 1981 SC 1550, the Supreme Court observed as follows:
"Undoubtedly, Section 111(a) of the Transfer of Property Act, which deals with determination of a lease by efflux of time, has to be read with Section 116 of the Act. But in the present case there is no allegation by the defendant that he was a tenant holding over within the meaning of Section 116 of the Act. Now, in order that a lease should be deemed to have been continued in favour of the defendant it was necessary to show that he remained in possession of the premises demised after the determination of the lease granted to him and the plaintiff had expressly or by necessary implication assented to his continued possession. There being no such plea of holding over, the matter falls to be governed by Section 111(a) of the Transfer of Property Act. If the period of lease had expired on January 10, 1970, the relationship of landlord and tenant ceased and the defendant became a trespasser.....
There was, therefore, no question of service of any notice under Section 106 of the Transfer of Property Act."
In my view, the above observations of the Supreme Court squarely apply to and govern the case on hand. In the written statement filed by the defendant, there is no specific plea that the defendant was a tenant holding over within the meaning of Section 116 of the Transfer of Property Act. What is pleaded is that as per the original understanding between the parties, the defendant was at liberty to continue in the premises on the same terms and conditions until they get any comparable alternative accommodation for shifting its establishment and the plaintiffs are not entitled to require the defendant to vacate the suit premises if they did not agree to pay the demanded rent at Rs.2.00 per sft. It was further pleaded that the quit notice is neither valid nor proper as the tenancy month is being reckoned according to Gregorian calendar month only and the defendant is entitled for 90 days' notice for determination of the lease as per the original terms of the lease. The said plea, which was put forward in the written statement, is evidently without any basis and it was not pressed either in the lower Court or in this Court. Instead it was sought to be contended that the notice to quit was not valid as it purported to terminate the tenancy one day prior to the end of the tenancy month. I am, therefore, inclined to agree with the contention of the learned Counsel for the plaintiffs/appellants that no quit notice under Section 106 of the Transfer of Property Act is really required as the lease expired by efflux of time.
11. Even on the second question, I am of the view that the lower Court erred in holding that the quit notice dated 21-4-1980 is not valid and in accordance with Section 106 of the Transfer of Property Act. In Bhagbandas v. Bhagwandas, , the Supreme Court held that a notice to quit must be construed not with the desire to find fault in it, which would render it defective but it must be constructed ul res magis valeat qulm pereat. In that case the landlords issued a notice requiring the tenant to vacate the premises "within the month of October 1962 otherwise he would be treated as trespasser from 1st November, 1962". It was held that the intention of the authors of the notice was clear that they were terminating the tenancy only with effect from the end of the month of October, 1962 and not with effect from any earlier point of time during the currency of that month and the notice was held to be valid. In Bhagyanagar Khadi Samithi v. S.B. Chitnis, , a learned Judge of this Court, after referring to all the aforesaid judgments of the Supreme Court, held that the notice under Section 106 of the Transfer of Property Act should be construed broadly and it should not be defeated by inaccuracies either in the description of the premises or name of the tenant or the date of the expiry of the notice. From the language used in the quit notice, it must be endeavoured to ascertain the intention of the parties and the effect thereof and it should not be read in hypercritical manner but should be construed in common sense way. I have also taken a similar view in the case of P. Dharma Reddy v. B. Vijayalaxmi, .
12. Even assuming for the sake of argument that in view of Section 110 of the Transfer of Property Act, the monthly tenancy commences from 17th and ends with 16th of the following month, in the light of the principles laid down in the above decisions, it is not possible to agree with the view that the quit notice, whereby the defendant was called upon to vacate the premises by the mid-night of 15-5-1980, is not in accordance with the provisions of Section 106 of the Transfer of Property Act. On a proper interpretation of the notice, it must be held that the intention of the landlords was to terminate the tenancy by the end of the tenancy month only but not during the currency of the month. In this context, I may also point out that in the decisions reported in M/s. P.S.P. Seshagirirao and Co. v. Kalabai Rathi, and A.V. Prasad v. G. K. Ramaiah, two learned single judges of this Court after considering the judgment of the Supreme Court in Dattonpant v. Vithalrao (supra), held that Section 110 of the Transfer of Property,, Act is not applicable to a tenancy from month to month by holding over and that the said section applies only to the periodical lease with a specific date of commencement of lease. It therefore, follows that the argument based on Section 110 of the Transfer of Property Act put forward on behalf of the respondent-defendant is without any merit.
13. For all the aforesaid reasons I hold the lower Court erred in its view that the quit notice is not valid. In view of this finding arrived at by me, in the normal course, I would have been inclined to remit the matter back to the lower Court for determination of the mesne profits or damages for use and occupation to which the plaintiffs will be entitled. However, the lower Court on consideration of the evidence on record, came to the conclusion that the agreed rent at the rate of Rs.0.63 ps., per sft, which was already paid and received, was sufficient and proper and the plaintiffs have not made out any case for awarding damages for use and occupation over and above the same.
14. Having regard to the fact that the defendant vacated the premises shortly after the filing of the suit and nearly two decades have already passed, I am not inclined to interfere with the said view taken by the lower Court and remit the matter back at this distance of time. In this view of the matter, both the appeals are dismissed but without costs.