1 of 36 O.S.No.392of 2016
IN THE COURT OF THE XIV ADDITIONAL CHIEF JUDGE,
CITY CIVIL COURT AT HYDERABAD
PRESENT: SMT. B. APARNA DEVI,
XIV Additional Chief Judge,
City Civil Court, Hyderabad.
Dated this the 11th day of April, 2023
O .S.No.392 of 2016
Between:
1. Ms.Arthi Kasu, D/o Late MLN Reddy Aged about 48 years, Occ: Pvt Service 2.Ms. Sushma Bommareddy, D/o Late MLN Reddy Aged about 47 years, Occ: Pvt Service,
Both Permanent residents of Flat No:802 Premises NO:1-3-1030/A/802, Alpine Towers, Kavadiguda, Hyderabad 500080
Represented by their G P A holder Dr.D.Karunakar Reddy, S/o Late D.Ranga Reddy Aged about 70 years, Occ: Retd R/o.H NO: 6-1-121, Padmarao Nagar, Sec-bad 025 … Plaintiffs
And
1. M/S Crux Management Services Pvt Ltd, Registered office at 5-10-191, Skill Avenue Apts 2nd floor, Hill Fort Road, Adarshnagar, Hyderabad 500004 Represented by its Directors 1.Hema Jain, 2. Vikas Singh & 3. Rupa Deglurker
2. M/S Crux Management Services Pvt Ltd Tenant in "My Home Tycoon" Premises bearing M C H Nos.6-3-1192 (Part) 6-3-1192/2/1 to 16, situated at Kundanbagh Begumpet, Hyderabad 500016 Rept by its Authorized Signatory Ms. Hema Jain 2 of 36 O.S.No.392of 2016
3. Mr. Vikas Singh S/o Not known to the Plaintiffs Aged:Major Occ:Director DIN:02164927 M/S Crux Management Services Pvt Ltd Registered office at 5-10-191, Skill Avenue Apts 2nd floor, Hill Fort Road, Adarshnagar, Hyderabad 500004 4 Ms.Hema Jain, D/o Not known to the Plaintiffs Aged:Major Occ:Director. M/S Crux Management Services Pvt Ltd DIN:01734856. Registered office at 5-10-191, Skill Avenue Apts., 2nd floor, Hill Fort Road, Adarshnagar, Hyderabad 500004
5. Ms.Rupa Degluker, D/o.not known to the plaintiffs aged Major, Occ:Director, DIN 0308680. M/s.Crux Managment Services Pvt., Ltd., registered office at 5-10-191, Skill Avenue Apts., 2nd floor, Hill Fort Road, Adarshnagar, Hyderabad 500 004 … Defendants
This suit is coming before me in the presence ofSri C
Shyam Rao, Advocate for the Plaintiffs no.1 & 2 and Sri
Venkatesh Deshpandu, Advocate for Defendants No. 1 to 4 ,
Defendant no.5 is set-exparte and the matter having stood over for consideration till this day, this Court delivered the following:-
:: J U D G M E N T ::
1. This suit is filed by the plaintiffs for Eviction, Recovery of an amount of Rs.14,68,542/- and Future Mesne Profits from the defendants.
SUIT SCHEDULE PROPERTY
All the unit No.410 (Part) on fourth floor in Block “A” of “My
Home Tycoon” in premises bearing MCH Nos.6-3-1192 (Part), 6-3- 1192/2/1 to 16, admeasuring 2000 square feet, out of 6742 3 of 36 O.S.No.392of 2016 square feet, along with two car parking plot Nos.117 to 118 in the
Sub cellar floor together with all its Electrical and Sanitary Fittings,
Furniture and Fixtures, Cabins and Chairs and other amenities, situated at Kundanbagh, Begumpet Main Road Hyderabad, 500 016, Telangana.
North : common corridor
South : open to sky
East : common corridor
West : property belonging to Mr. Krishna Reddy
2.The brief averments of the plaint are that:
(i).The plaintiff no.1 along with Sri Kasu Prabhakar Reddy and
Mettu Suchita purchased the suit schedule property in the ratio of 25%, 25% & 50% respectively with 2 car parking plot Nos. 117 to 118 in sub cellar floor together with proportionate undivided share in the land measuring 86.18 sq.yds out of 290.50 sq.yds under
Ex.A1.
ii.It is pleaded that, Sri Kasu Prabhakar Reddy gifted 25% of his share vide Ex.A2 in favour of the plaintiff no.1. By virtue of Ex.A2
Registered Gift Settlement Deed Document bearing no.29 of 2006, 4 of 36 O.S.No.392of 2016
dt. 04.01.2006, plaintiff no.1 became absolute owner of 50% of
the suit schedule property along with her mother Mettu Suchita, who holds the other 50% of share in the suit schedule property.
So also, her mother Mettu Suchita, gifted her 50% of her share vide Ex.A3 in favour of the plaintiff no.2. By virtue of Ex.A3
Registered Gift Settlement Deed Document bearing no.65 of 2011,
dt. 13.01.2011, plaintiff no.2 became absolute owner of 50% of
the suit schedule property along with plaintiff no.1.
iii.It is further pleaded that, defendant no.1 is an ISO 9001 certified company registered at the Registrar of Companies,
Hyderabad with C I N: U74140AP1996PTC025440 with registration no:25440 and providing services into Consulting, BPO Solutions,
HR Solutions, Learning Solutions, Assessment and Leadership
Development Organizations in India. The defendant no.2 is the business place of the defendant no.1. The plaintiffs submits that the defendant no.3 to 5 are the Directors of the Defendant no.1 and are involved in the management and day to day affairs of the defendant no.1.
5 of 36 O.S.No.392of 2016 iv.It is further pleaded that, the plaintiffs and the defendant no.1 entered into a Lease Agreement, dt.01.12.2009, executed by the plaintiff no.1 and her mother Smt. Mettu Suchita. The Lease
Agreement, dt.01.12.2009 was signed by the defendant no.4 on behalf of the defendant no.1 as its Authorised Signatory and thus the defendant no.1 was inducted as a tenant in the Suit Schedule
Property with all its fittings, fixtures and other amenities for ready to use non-residential office purpose on a monthly tenancy beginning of each month to the end of the same month, on a monthly rent of Rs.66,000/- (Rs. Sixty Six Thousand only), which was to be paid equally to the plaintiff No.1 and her mother
Smt. Mettu Suchita i.e., Rs.33,000/- each, in advance on or before the 10th day of every month after deducting the TDS, the monthly rent being exclusive of electricity and monthly maintenance and that the period of Lease was for 9 years + 3 years, subject to the enhancement of rent of 7% for every year in case of breach of any of the terms and conditions, the plaintiffs were entitled to terminate the Lease by issuing one month’s notice.
v.It is further pleaded that, the original Lease Deed, dt.01.12.2009 is in the possession of the defendant No.1. The 6 of 36 O.S.No.392of 2016 defendants no.3 to 5 being the active Directors of the defendant no.1 involved in the management and day to day affairs of the defendant no.1, very much know about the terms and conditions of the Lease Agreement and the obligation to abide by the terms and conditions of the Lease Agreement, dt. 01.12.2009 and more particularly with regard to the payment of the months rents to the plaintiffs.
vi.It is further pleaded that, an interest free security deposit amount of Rs.3,96,000/- (Rs. Three Lakhs Nienty Six Thousand only) ie. Rs.1,98,000/- (Rs. One Lakh Nenety Eight Thousand) each was paid as rental deposit equivalent to six months, which was to be refunded to the defendant no.1 at the time of handing over vacant possession of the Suit Schedule Property in good condition to the plaintiffs.
vii. It is further pleaded that, after execution of Ex.A3 in favour of the plaintiff no.2. The defendant no.1 started to pay rent of
Rs.33,0000/- (Rs. Thirty Three Thousand only) to the plaintiff no.2.
The rents were paid by way of cheques only and the same were encashed through the plaintiff no.1 & 2’s accounts with Vijaya 7 of 36 O.S.No.392of 2016
Bank, West Marredpally Branch, Secunderabad bearing Account
Nos.400801040070027 & 400801010007321 respectively.
viii.It is further pleaded that, the defendant no.1 ought to pay the monthly rents as follows for each year @7% enhancement on the existing rent as per the letter and spirit of the Lease
Agreement, Dt.01.12.2009
Sl.No.PeriodMonthly rent payable with 7% enhancement yearly in Rs. 1December 2009 to November 201066,000:00 2December 2010 to November 2011 70,620:00 3December 2011 to November 201275,563:00 4December 2012 to November 201380,852:00 5December 2013 to November 201486,512:00 6December 2014 to November 201592,568:00 7December 2015 to March 201699,048:00 ix.If is further pleaded that, the plaintiffs thought that the rent was to be enhanced by 7% yearly the defendants continued to pay the rents un-enhanced @ Rs.66,000:00 per month inspite of several reminders and the rents were paid irregularly though, the
Lease Agreement stipulated that the rents ought to be paid on or
before 10th of every month in advance. From December 2009 to
March 2016 (76 months) the defendants were liable to pay 8 of 36 O.S.No.392of 2016
Rs.50,91,348:00 (Rs. Fifty Lakhs Ninety One Thousand Three
Hundred and Forty Eight Only) out of which the defendants paid an amount of Rs.36,22,806:00 (Rs. Thirty Six Lakhs Twenty Two
Thousand Eight Hundred and Six only) that too irregularly.
Therefore, the defendants are liable to pay an amount of
Rs.14,68,542:00 (Rs. Fourteen Lakhs Sixty Eight Thousand Five
Hundred and Forty Two only) towards arrears of rent ending March 2016. The defendants with malafide intention not enhanced the rent by 7% every year. Though, they deducted TDS every month but, they have never placed any proof of payment of TDS made to the Government, to the plaintiffs till date and added to that the defendants are not paying the monthly maintenance regularly, thereby, the defendants violated the terms and conditions of the
Lease Agreement, dt. 01.12.2009.
x.It is further submitted that, in view of the breach of the terms and conditions of the Lease Agreement, dt.01.12.2009 by the defendants wantonly and deliberately. The plaintiffs got issued a legal notice dt.30.03.2016 vide Ex.A6 u/s 106 of the
Transfer of Property Act by giving them 15 days notice and called the defendants to vacate the “Suit Schedule Property” and to 9 of 36 O.S.No.392of 2016 hand over the vacant and peaceful possession of the same to the plaintiffs. And if they still continued to occupy the suit schedule property they are liable to pay damages @ of Rs.2,00,000/- (Rs.
Two Lakhs only) per month from the month of May 2016 onwards.
xiIt is further pleaded that, the defendant no.1 received Ex.A6 and Ex.A7 is the acknowledgment. Notice sent to defendant no.2 was returned vide Ex.A8, as he refused to receive the same. The plaintiffs further addressed letter vide Ex.A9 explaining the detail of rents that the defendants ought to pay as per the terms of
Lease Agreement dt.01.12.2009 and directed them to pay the same within 7days from the date of receipt of the notice. But the said notice sent to the defendant no.1 vide Ex.A9 with postal receipt vide Ex.A10 was returned vide Ex.A11 with endorsement “Addressee Left”. Notice, sent to defendant no.2 vide postal receipt Ex.A12 was served on the defendant no.2 vide Ex.A13.
Since, defendants no.3 to 5, are the Directors of defendant no.1.
Service of notice to defendants no.1 & 2 shall be deemed to service of notice to the defendants no.3 to 5. Therefore, defendants no.1 to 5 are jointly and severally liable to pay all the arrears of rent, mesne profits for holding over the suit schedule 10 of 36 O.S.No.392of 2016 property. The defendants by their actions and conduct have caused severe financial hardships to the plaintiffs with malafide intentions and at the same time are enjoying the fruits of wrongful gains by making use of the Suit Schedule Property.
xiiIt is further pleaded that, the defendants neither paid the arrears of rents with in 7 days of receiving notice vide Ex.A9 nor vacated the Suit Schedule Property. Since, the tenancy of the defendants was validly determined/terminated by the quit notice vide Ex.A6. The plaintiffs have right to sue and seek the eviction of the defendants from the Suit Schedule Property and for the recovery of the arrears of rent of Rs.14,68,542:00 (Rs. Fourteen
Lakhs Sixty Eight Thousand Five Hundred and Forty Two Thousand
Only). Hence, the suit.
3.(i) The defendants filed written statement denying all adverse allegations made against them except, those specifically admitted. The defendant no.1 has taken the suit schedule property admeasuring 2000 sq.fts on lease from the plaintiffs for 9 years + 3 years commencing from 01.12.2009. The rent agreed was Rs. 33,000/- per month, which is exclusive of electricity 11 of 36 O.S.No.392of 2016 consumption charges and maintenance charges. It was further term of said lease agreement that any major repairs such as leakage of sanitary and water pipes etc. shall be attended by the plaintiffs at their own costs, which finds place at clause no.9 of the said lease agreement.
ii.It is further submitted that, there is no clause of enhancement of rent @7% for every year in the lease agreement dt.01.12.2009, so, the same was not acted upon at any point of time and the plaintiffs never insisted for the same. As the plaintiffs were residents of United States of America, as such they instructed the defendant no.1 to issue cheques covering the rents to their near relatives, who were authorized by the plaintiffs to collect the cheques. Accordingly, the defendant no.1 issued cheques and the cheques were encashed by the plaintiffs.
iii.It is further submitted that, the defendant no.1 is using the entire area of 6742 sq.fts in one part though, taken under the three separate lease agreements. After the defendants were inducted into tenancy, there were some major repairs, which were affected by the defendant no.1 at the plaintiffs instructions and 12 of 36 O.S.No.392of 2016 the amounts so incurred by the defendant no.1 were reimbursed by the plaintiffs.
iv.It is further submitted that, the defendant no.1 effected major repairs viz leakage in the walls, pipe lines etc. as per the plaintiffs instruction by incurring huge expenditure from 2011 to 2016 and the defendants were under impression that the amounts so incurred will be reimbursed by the plaintiffs as done by them on earlier occasion. The break up amounts incurred by the defendant no.1 for effecting the said repairs year wise is reproduced hereunder. The defendants requested the plaintiffs as well as other owners to clear the said amounts, but the same were dogged by the plaintiffs and other owners on one or other pretext.
Break up of Amounts incurred by the Defendants:
Sl.No.YearAmounts incurred for repairs 12011 4,62,800-00 22012 3,29,600-00 32013 7,52,755-00 42014 1,91,575-00 52015 1,90,054-00 62016 43,300-00 Total19,70,084-00 13 of 36 O.S.No.392of 2016 v.It is further submitted that, the defendant no.1 was regular in payment of rents. But, the relatives of the plaintiffs failed to collect the cheques inspite of several request made to the plaintiffs to send their relatives but none of their requests were headed by the plaintiff for the reasons best known to them. On 03.10.2015, the 2nd plaintiff happened to visit the defendants office for sorting out the pending issues viz reimbursement of amounts and rental income. During the course of discussions between them, the defendants were asked to clear the arrears of rents which were not collected by the plaintiffs relatives. At that juncture the defendants represented that in view of the depreciation in property values and rental values there should be some sort of concessions in payment of rents. After due deliberations and negotiations, an amicable solution was arrived at between the defendants and 2nd plaintiff which was reduced into writing and signed by 2nd plaintiff and the defendants on 03.10.2015. The said understanding has been arrived with at whose behest, the 2nd plaintiff negotiated with the defendants.
vi.It is further submitted that, as per the understanding dt.03.10.2015, the defendants are required to clear the arrears of 14 of 36 O.S.No.392of 2016 rents @ 25/- per sq.ft and further the plaintiffs should enhance the rent @ 5% from April, 2016 and another enhancement shall be made @ 5% from October, 2016. When the defendants raised the issue of reimbursement of amount of Rs.19,70,084/- by the plaintiffs and other owners, the 2nd plaintiff assured the defendants of clearing the said amounts at the earliest.
vii.It is further submitted that, as per the understanding arrived on 03.10.2015, defendants paid the arrears of rents till March, 2016 and the same was received by the plaintiffs without any protest. The plaintiffs avoided to receive rents from April, 2016 only with an intention to show the defendants as defaulters though, the defendants are ready with rental cheques from April 2016 on wards.
viii.It is further submitted that, the defendants were surprised to received notice dt. 30.03.2016 vide Ex.A6. Thereafter, another notice vide Ex.A9 calling upon them to pay an amount of
Rs.14,68,542/- towards arrears of rents. Though, there was a clause of enhancement of rent @ 7% every year, but it was not acted upon by the plaintiffs and at no point of time, the plaintiffs 15 of 36 O.S.No.392of 2016 insisted for the same. The said clause was further waived by arrangement dt. 03.10.2015. Thus, the plaintiffs claim of 7% enhancement in rents is false in view of the above submission.
Therefore, the defendants are not liable to pay an amount of
Rs.14,68,542/- as alleged in the suit.
ixIt is submitted that, the plaintiffs are not entitled to terminate the tenancy of the defendants since the lease is subsisting till 31.11.2018 plus three (3) years further extension.
Therefore, plaintiffs claims and contentions cannot withstand the scrutiny of law. There are contradictions in plaintiffs claim and contentions in the legal notice dt. 30.03.2016 and 21.04.2016.
The defendants never breached the terms and conditions of agreement as such the defendants are not liable to vacate the premises under their occupation. Even after receiving the above two legal notices, the defendants were in touch with the plaintiffs and the plaintiffs assured for amicable solution, but due to the plaintiffs inadvertent attitude the defendants gave common reply notice to the above two legal notices.
16 of 36 O.S.No.392of 2016 xIt is submitted that, the plaintiffs cannot approbate and reprobate in view of amicable arrangement dt. 03.10.2015. Since the duration of lease is subsisting till November,2018 with further extension of three (3) years, as such termination of lease as per legal notice dt.30.03.2016 is bad in law and defective for the reasons that clause 11 of Lease Deed, dt.01.12.2009 contemplates one months notice in case of any breach of terms, but the legal notice under Ex.A6 was given 15 days, which is contrary to clause 11 of Lease Deed, dt.01.12.2009. Since , the legal notice is defective Therefore, the suit is bad in law.
xi.It is further submitted that, the malafide conduct of the plaintiffs can be evident from the fact that the defendant no.1 was inducted into tenancy under Lease Deed, dt.01.12.2009 but, the present suit has been filed against defendant no.3 to 5 in their individual capacity which is not permissible under law and on this sole ground of mis-joinder of parties, the instant suit is liable to be dismissed in limini. Further, the person, who signed and verified the plaint as alleged General Power of Attorney of plaintiffs is not competent to institute the present suit and prosecute the proceedings and the present suit is contrary to law an not 17 of 36 O.S.No.392of 2016 maintainable, the court fee paid is insufficient. The defendants are ready to pay monthly rents from April, 2016 as per amicable arrangement, dt.03.10.2015. Suit is bad for want of proper quit notice and the suit is liable to be dismissed since lease is subsisting till November, 2018 with three (3) years of further extension. Hence, prayed to dismiss the suit with exemplary costs.
4.Basing on the above pleadings, the following issues are framed:
1.Whether the plaintiffs are entitled for recovery of suit Schedule property as prayed for ?
2.Whether the plaintiffs are entitled for recovery of amount as prayed for ?
3.Whether the plaintiffs are entitled for recovery of Mesne Profit as prayed for ?
4.To what relief?
5.It is matter on record that, on 14.07.2016 the suit was instituted before the Court of Chief Judge, City Civil Court,
Hyderabad and numbered as O.S.No.576 of 2014 and made over 18 of 36 O.S.No.392of 2016 to the Court of XXIV Additional Chief Judge, City Civil Court,
Hyderabad.
6. Heard both sides. Perused the entire case record.
7. In order to prove the claim of the plaintiff, the GPA Holder of the plaintiffs by name Dr. D. Karunakar Reddy, examined himself examined as PW.1 and got exhibited A1 to A13. Plaintiff reported no further evidence on their behalf. Hence plaintiff evidence is closed. Defendant did not choose to adduce any evidence and reported no evidence on their behalf. Hence, defendant’s evidence is closed.
8.(i) In support of their contention, the GPA Holder of the plaintiffs got filed his chief evidence affidavit as PW.1 and deposed in the same lines as he averred in his plaint and got exhibited A1 to A13. Ex.A1 Certified copy of registered Sale Deed document bearing no.2176 of 2002, dt. 01.11.2002. Ex.A2 Certified copy of registered Gift Settlement Deed document bearing no.29 of 2006,
dt. 04.01.2006. Ex.A3 Certified copy of registered Gift Settlement
Deed document bearing no.65 of 2011, dt. 13.01.2011. Ex.A4
Notarized Deed of General Power of Attorney executed by the 19 of 36 O.S.No.392of 2016 plaintiff no.1, dt. 18.03.2016. Ex.A5 Notarized Deed of General
Power of Attorney executed by the plaintiff no.2, dt. 18.03.2016.
Ex.A6 Office copy of the notice under section 106 of the Transfer of Property Act sent to the Defendants no.1 & 2, dt.30.03.2016.
Ex.A7 Acknowledgment card of the defendant no.1, postal receipt no.ARN1571217461N, dt.01.04.2016. Ex.A8 Returned registered postal cover sent to defendant no.2 vide postal receipt no.ARN1571218341N, dt.31.03.2016. Ex.A9 Office copy of notice for arrears of rent sent to the defendants no. 1 & 2, dt.21.04.2016.
Ex.A10 Postal receipt no.ARN1297218631N, dt.22.04.2016. Ex.A11
Returned registered postal cover sent to defendant no.1, dt.27.04.2016. Ex.A12 Postal receipt No.ARN1297217441N, dt.22.04.2016. Ex.A13 Acknowledgment card of the defendant no.2, dt.23.04.2016.
9.UN DISPUTED FACTS:
1.Jural relationship between the parties.
2. Lease Agreement, dt.01.12.2009.
3.Duration of lease Nine (9) years + Three (3) years.
4.Deposit of 6 months rents, which is refundable the time of vacating the premises.
20 of 36 O.S.No.392of 2016
5.Quantum of rent.
6.Enhancement of rent @ 7% in every year.
7.Payment of rents by way of cheques.
8.Receiving of notice dt.30.03.2016 under section 106 of the
Transfer of Property Act vide Ex.A6.
9.Receiving of notice dt.21.04.2016 for arrears of rent vide
Ex.A9.
10. For the purpose of brevity Issue no.1 & 2 are answered together.
11.ISSUE NO.1 & 2:
1. Whether the plaintiffs are entitled for recovery of suit
Schedule property as prayed for ?
2.Whether the plaintiffs are entitled for recovery of amount as prayed for ?
(i). It is the case of the plaintiff that, the defendants failed to pay the enhanced rents @ 7% every year and are due to pay an amount of Rs.14,68,542/-. Further, the defendants are irregular in paying the rents and they have not placed any proof of deducting 21 of 36 O.S.No.392of 2016
TDS every month and paying the same to the Government. Since, the defendants committed breach of terms and conditions mentioned in the Lease Agreement, dt.01.12.2009. Hence, the suit.
(ii) Per contra, the defendant though, admitted the clause pertaining to enhancement of rent @ 7% every year. But, they submitted that, the same is waved in view of the amicable arrangement, dt.03.10.2015. They further submitted that, issuance of notice vide Ex.A6 & Ex.A9 during the subsistence of the lease Agreement bad in law. When the defendants are ready to pay the rents as per the arrangement, dt.03.10.2015 from April, 2016 on wards. The plaintiffs with false and untrue allegation filed the present suit. Hence, prayed to dismiss the suit with exemplary costs.
iii. Since, the jural relationship between the parties, existence of
Lease Agreement, dt.01.12.2009, duration of lease, clause pertaining to enhancement of rent @ 7% every year are not at dispute. As per Section 58 of the Evidence Act, that no fact need be proved in any proceedings which the parties thereto or their 22 of 36 O.S.No.392of 2016 agents agree to admit it at the hearing or which by any rule of pleading in force at the time they are deemed to have admitted by their pleading.
12. (i) Since, jural relationship and Lease Agreement is admitted, now, the issue raised before this court is “whether the defendants failed to pay the enhanced rent @ 7% every year and that, the arrears of rent amounted to Rs. 14,68,542/-”.
ii.In order to prove the case of the plaintiffs, the GPA Holder of the plaintiffs got filed his chief evidence affidavit as PW.1 and deposed in the same lines as he averred in his plaint and got exhibited A1 to A13.
iii.During cross examination, PW1 admitted that, the plaintiffs are his relatives, Ex.A4 & Ex.A5 GPA were executed by the plaintiff no.1 & 2 respectively, for the purpose of collecting rents and also for the purpose of defending any litigation on their behalf. PW1 do not know the contents of the written statement filed by the defendants. PW1 does not know where plaintiffs resided, as on the date of execution of Ex.A4 & Ex.A5. He has not witnessed the 23 of 36 O.S.No.392of 2016 plaintiffs putting their signatures on Ex.A4 & Ex.A5. He has not collected any rents from the defendants after execution of Ex.A4 &
Ex.A5 in his favour.
iv.PW1 further admitted that, Ex.A6 was issued on his instructions. The total property is 6000 sq.ft. Plaintiff no.1 & 2 are the owners of the suit schedule property. Mettu Krishna Reddy and Vidya Reddy are neighbours to the suit schedule property so also the properties of Haridhar Reddy, Suvarna, Sridhar Reddy are adjacent to the properties of Vidya Reddy. All the above three properties are adjacent to each other. PW1 is the GPA holder of
Mettu Krishna Reddy and Vidya Reddy. The properties are given on lease to the defendant no.1 separately. But, he has not seen the lease deed. The lease deed pertaining to the plaintiff was executed on 01.12.2009. The period of lease is for nine years plus three years i.e., for twelve years period. The lease has to expire in the year 2022. The lease was let out on monthly rent @
Rs.66,000/-. PW1 does not know whether the plaintiffs got issued legal notice demanding the defendant no.1 to pay the enhanced rents from 2010 to 29.03.2016. The defendants paid the rents by way of cheques and one Mr Janardhan Reddy collected the rents 24 of 36 O.S.No.392of 2016 from the defendant no.1. Some times Kankar Sridhar Reddy used to collect the rents. PW1 admitted that, plaintiffs sold away the suit schedule property in favour of M/s Lakshmi Kankar represented by Kankar Sridhar Reddy in the year 2018, vide document no.2269 of 2018, dt.08.07.2018 and delivered the possession. PW1 admitted that, Mettu Krishna Reddy and Lehari property was sold in favour of M/s Lakshmi Kankar. PW1 denied the suggestion that, the defendant no.1 vacated the suit schedule property on dt.06.02.2017. PW1 does remember the date of his last visit to the suit schedule property. PW1 denied the suggestion that, since the defendant no.1 vacated the suit schedule property the plaintiffs sold the suit schedule property and delivered its possession to M/s Lakshmi Kankar.
v.PW1 further admitted that, he does not know whether the defendant no.1 paid the rents till March,2016. He has not filed bank statements of plaintiff no.1 & 2 in proof that the defendant no.1 is a defaulter of rents. On equiry with plaintiffs, Janardhan
Reddy and Sridhar Reddy PW1 came to know that the defendant no.1 payed rents irregularly. But, he does know the same personally.
25 of 36 O.S.No.392of 2016 vi.PW1 is not aware of reply notice of the defendant to Ex.A6 &
Ex.A9 and he is also unaware of issuing of rejoinder notice to reply notice. PW1 is unaware that the defendant no.1 mentioned in reply notice that, he has spent an amount of Rs.19,70,084 towards repairs of the suit premises. PW1 admitted that, the repairs have to be carried out by the defendant no.1 and also the defendant no.1 has to bear its expenditure. PW1 does not know whether the plaintiffs visited India in the month of September 2015 for the last time. He does not know about the arrangement between the 2nd plaintiff with the 1st defendant waiving the enhancement of rents, so also, with regard to the amounts spent on repairs to be adjusted with future rents. PW1 admitted that, he is unaware of the transactions between the plaintiffs and the defendant no.1 prior to 18.03.2016. PW1 denied the suggestion that, since the defendant no.1 vacated the suit premises on 06.02.2017, therefore, the plaintiffs are not entitled to claim any damages. PW1 denied other suggestions put forth to him .
13.(i). It is the argument of the learned counsel for the defendants that, as Ex.A6 & Ex.A9 are issued by the plaintiff no.1 and not by PW1 GPA of plaintiff no.1 & 2. Therefore, PW1 as GPA 26 of 36 O.S.No.392of 2016 cannot give his evidence. Ex.A6 & Ex.A9 has to proved by plaintiff no.1 and plaintiff no.1 has to subject herself to cross examination pertaining to Ex.A6 and Ex.A9. Since, the plaintiff has no knowledge about the transactions between the plaintiffs and the defendants. Therefore, his evidence is not relevant.
14. The defendants relied on the following cases law reported in :
(i)2011 (4) ALD 2019(Lakshmi Parvathi versus
K.Umamaheswari) wherein it was held that for non-examination of a party to the suit, adverse inference cannot be drawn in each and every case. When adverse inference can be drawn, is a question varies from case to case. If the evidence is of such a nature that it is insufficient in the absence of the testimony of the party to the suit, then the Court would be justified in drawing adverse inference against the case of the said party for his non- examination to the effect that the case which had been set up by him is not correct.
(ii)AIR 2005 SC 439 (Janki Vashdeo Bhojwani and others versus Indusind Bank Limited and others) wherein it was held that 27 of 36 O.S.No.392of 2016
Order III, Rules 1 and 2 CPC, empowers the holder of power of attorney to “act” on behalf of the principal. In our view the word “acts” employed in Order III, Rules 1 and 2 CPC, confines only in respect of “acts” done by the power of attorney holder in exercise of power granted by the instrument. The term “acts” would not include deposing in place and instead of the principal. In other words, if the power of attorney holder has rendered some “acts” in pursuance to power of attonrey, he may depose for the principal in respect of such acts, but he cannot depose for the principal for the acts done by the principal and not by him. Similarly, he cannot depose for the principal in respect of the matter which only the principal can have a person knowledge and in respect of which the principal is entitled to be cross-examined.
(iii)2021(3) ALD 511(DB)(K. Madhumathi versus
K.Ramachander Rao and others) wherein it was held that PW1 –
Power of attorney holder had stated that there was no condition that the rent would not be charged, however, denied having personal information about the covenant. In Para No.16, it was stated, the power of attorney holder has power to act/appear on behalf of the party but, clarified that he/she cannot appear in 28 of 36 O.S.No.392of 2016 witness box on behalf of the party. It was further clarified that “the plaintiff has not appeared in the witness box and the statement given by the GPA holder cannot be substituted for the statement of the plaintiff and for this reason also adverse inference can also be drawn against the plaintiff for not appearing in the witness box to prove her case.
(iv) AIR 2014 SC 937 (Union of India (UOI) and others versus
Vasavi Co-op., Housing Society Ltd., and others) wherein it was held that It is trite law that, in a suit for declaration of title, burden always lies on the plaintiff to make out and establish a clear case for granting such a declaration and the weakness, if any, of the case set up by the defendants would not be a ground to grant relief to the plaintiff.
The High Court, has taken the view that once the evidence is let in by both the parties, the question of burden of proof playes into insignificance and the evidence let in by both the parties is required to be appreciated by the Court in order to record its findings in respect of each of the issues that may ultimately determine the fate of the suit. The High court has also proceeded 29 of 36 O.S.No.392of 2016 on the basis that initial burden would always be upon the plaintiff to establish its case but if the evidence let in by defendants in support of their case probabilities the case set up by the plaintiff, such evidence cannot be ignored and kept out of consideration.
15.Per contra, it is the argument of the learned counsel for the plaintiffs that, the defendants in their written statement admitted entire case of the plaintiff except that the plaintiffs never pressed for the arrears of rents. Though, the defendants claimed that, they incurred Rs.19,70,084/- for repairs but no counter claim was filed by the defendants. It is further argued that, as a GPA holder of plaintiffs PW1 can depose his evidence and his evidence can be considered. The plaintiffs relied on the following case laws reported in:-
(i)Supreme Court of India 1990 0 Supreme (SC) 327 (Vidhyadhar versus Manikrao)wherein it was held that where a party to the suit does not appear into the witness box and states his own case on oath and does not offer himself to be cross examined by the other side, a presumption would arise that the case set up by him is not correct as has been held in a series of decision passed by various High Court and the Privy Counsil.
30 of 36 O.S.No.392of 2016
(ii) Supreme Court of India 1999 (3) Supreme (SC) 121 (Iswar Bhai
C Patel versus Harihar Behara and another) wherein it was held that “If a defendant does not enter into witness box to make statement on oath in support of his pleadings set out in the written statement an adverse inference would arise that what he had stated in written statement was not correct.
16.(i) Here, it is pertinent to note that, it is a settled law that, A
General power of attorney holder can appear, plead and act on behalf of the party but he cannot become a witness on behalf of the party in respect of matters of which the principal alone can have personal knowledge and in respect of which the principal is entitled to be cross examined. He can appear only as a witness in his personal capacity and what ever knowledge he has about the case he can state on oath. But, none can delegate power to appear in witness box on their behalf. In view of the settled law, laid down by the Hon’ble Apex Courts relied upon by the plaintiffs and defendants, the evidence of PW1 can only be considered as an evidence of witness.
5690498 31 of 36 O.S.No.392of 2016
(ii)For a moment, even if the evidence of PW1 is taken into consideration as a witness. PW1 admitted that, he does not know the contents of the written statement. He has not collected any rents from the defendants after execution of Ex.A4 & Ex.A5 in his favour. PW1 has not seen the lease deed executed on 01.12.2009.
PW1 does not know whether the plaintiffs got issued legal notice demanding the defendant no.1 to pay the enhanced rents from 2010 to 29.03.2016. The defendants paid the rents by way of cheques and one Mr Janardhan Reddy collected the rents from the defendant no.1. Some times Kankar Sridhar Reddy used to collect the rents. PW1 further admitted that, he does not know whether the defendant no.1 paid the rents till March,2016. He has not filed bank statements of plaintiff no.1 & 2 in proof that the defendant no.1 is a defaulter of rents. On enquiry with plaintiffs, Janardhan
Reddy and Sridhar Reddy PW1 came to know that the defendant no.1 payed rents irregularly. But, he does know the same personally. PW1 does not know whether the plaintiffs visited India in the month of September 2015 for the last time. He does not know about the arrangement between the 2nd plaintiff with the 1st defendant waiving the enhancement of rents, so also, with regard to the amounts spent on repairs to be adjusted with future rents.
32 of 36 O.S.No.392of 2016
Above all, PW1 admitted that, he is unaware of the transactions between the plaintiffs and the defendant no.1 prior to 18.03.2016.
From, the evidence of PW1, it is clear that, PW1’s evidence as a witness also can not be consideredo, as PW1 is not aware of the transactions that took place between the plaintiffs and the defendants prior to 18.03.2016 I.e prior date of filing of this suit.
Therefore, the evidence of PW1 is no way helpful to prove the case of the plaintiffs.
(iii)As, the plaintiffs pleaded that, the defendants became defaulters of enhanced rent and are liable to pay an amount of
Rs.14,68,542/- but the plaintiffs failed to enter into witness box to prove the same by leading cogent evidence. In these circumstance, an adverse inference can be drawn against them.
Here, it is to be noted, that the plaintiffs are the one, who filed the case against the defendants. Therefore, burden lies on them to prove their case, inspite of the admission of the jural relationship between the parties, Lease Agreement, quantum of rent, lease period, enhance of 7% of rent every year. As the defendants denied the arrears of rent and also denied that, they are irregular in payment of rent. They further took defence that they entered 33 of 36 O.S.No.392of 2016 into amicable arrangement dt.03.10.2015 with the 2nd plaintiff which waived the enhance of rent clause. Therefore, it is for the plaintiffs to prove their case and as plaintiffs not entered into the witness box to prove their case it can be safely concluded an adverse inference that their case is not correct is drawn against them. Once, the plaintiffs discharges their burden then it shifts on to the defendants to rebut the same.
(iv) In the present case on hand, as their no evidence either oral or documentary placed by the plaintiffs, further the evidence of PW1 is not helpful in proving the case of the plaintiff that, the defendants are liable to pay arrears of Rs.14,68,542/-. This court holds that, the plaintiffs are not entitled to recover an amount of
Rs.14.68,542/- towards arrears of enhanced rent.
17.Now, it is to be seen, “whether the plaintiffs are entitled to recover the suit schedule property from the defendants”?.
Admittedly, the period of lease is for nine years plus three years i.e., for twelve years period. The lease has to expire in the year 2022. The defendants were inducted into the suit schedule property from the date of Lease Agreement, dt.01.12.2009. PW1 34 of 36 O.S.No.392of 2016 admitted that, plaintiffs sold away the suit schedule property in favour of M/s Lakshmi Kankar represented by Kankar Sridhar
Reddy in the year 2018, vide document no.2269 of 2018, dt.08.07.2018 and delivered the possession i.e., prior to the expiry or termination of Lease Agreement, dt.01.12.2009 the suit schedule property was sold in favour of third party in the year 2018 itself. Therefore, the question of recover of suit schedule property from the possession of the defendants does not arise.
Hence, issues Nos.1 & 2 are answered in favour of the defendants as against the plaintiffs.
18. ISSUE NO.3:
3.Whether the plaintiffs are entitled for recovery of Mesne Profit as prayed for ?
(i)As the plaintiffs failed to prove that the defendants are in possession of the suit schedule property in spite of termination of
Lease Agreement, dt. 01.12.2009 vide Ex.A6. Therefore, the plaintiffs are not entitled for recovery of mesne profit as prayed for. This issue is answered in favour of the defendants as against the plaintiffs.
35 of 36 O.S.No.392of 2016 19ISSUE NO.4:
2.To what relief?
In view of the findings in the above issues. This issue is answered accordingly.
20.IN THE RESULT, suit is dismissed, no order as to costs.
Typed to my dictation, corrected and pronounced by me in the open Court, on 11th day of April, 2023.
XIV ADDITIONAL CHIEF JUDGE,
CITY CIVIL COURT, HYDERABAD.
APPENDIX OF EVIDENCE
WITNESSES EXAMINED
For Plaintiffs: For Defendants :
PW.1: Dr D Karunakar Reddy ---None----
EXHIBITS MARKED
For Plaintiffs:
Ex.A1 Certified copy of registered Sale Deed document bearing no.2176 of 2002, dt. 01.11.2002.
Ex.A2 Certified copy of registered Gift Settlement Deed document bearing no.29 of 2006, dt. 04.01.2006.
Ex.A3 Certified copy of registered Gift Settlement Deed document bearing no.65 of 2011, dt. 13.01.2011.
36 of 36 O.S.No.392of 2016
Ex.A4 Notarized Deed of General Power of Attorney executed by the plaintiff no.1, dt. 18.03.2016.
Ex.A5 Notarized Deed of General Power of Attorney executed by the plaintiff no.2, dt. 18.03.2016.
Ex.A6 Office copy of the notice under section 106 of the Transfer of Property Act sent to the Defendants no.1 & 2, dt.
30.03.2016.
Ex.A7 Acknowledgment card of the defendant no.1, postal receipt no.ARN1571217461N, dt.01.04.2016.
Ex.A8 Returned registered postal cover sent to defendant no.2 vide postal reciept no.ARN1571218341N, dt.31.03.2016.
Ex.A9 Office copy of notice for arrears of rent sent to the defendants no. 1 & 2, dt.21.04.2016.
Ex.A10 Postal receipt no.ARN1297218631N, dt.22.04.2016.
Ex.A11 Returned registered postal cover sent to defendant no.1, dt.27.04.2016.
Ex.A12 Postal receipt no.ARN1297217441N, dt.22.04.2016.
Ex.A13 Acknowledgment card of the defendant no.2, dt.23.04.2016.
For Defendants: -– N I L --
XIV ADDITIONAL CHIEF JUDGE,
CITY CIVIL COURT : HYDERABAD.