IN THE COURT OF THE V SENIOR CIVIL JUDGE: CITY CIVIL
COURT, HYDERABAD
PRESENT: DR.S.SRINIVASA REDDY
V SENIOR CIVIL JUDGE.
Dated: Tuesday, this the 1 st day of November, 2016.
O.S.No. 1929 of 2013 and O.S.No.59 of 2014
O.S.No. 1929 of 2013
Between:
1. M/s.Qualitea Cafe, Rep.by its Managing Partner, Ali Asghar Akhtari Rayini, 12361/60 Part, Ramakrishna Mutt Road, Domalguda, Hyderabad – A.P.
2. Ali Asghar Akhtari Rayini S/o.Late Akbar Akhtari Rayini, aged about 61 years, Occ: Business, Tenant of Shop No.12 361/60 Part, Ramakrishna Mutt Road,
Domalguda, Hyderabad – A.P. ...Plaintiffs
And
J.Ramdhari Agarwal, S/o.Jugtiram Agarwal, Aged about 61 years, Occ: Business, R/o.H.No.7475, Srinagar Colony,
Tirumalgherry, Secunderabad Cantonment ....Defendant
This suit coming on this day before me for final disposal in the presence of Sri Md.Shafiuddin, Advocate for plaintiffs and Sri A.Raju, Advocate for the defendant and the matter having been heard and stood over for consideration till this day, this court delivered the following:
O.S.No. 59 of 2014
Between: J.Ramdhari Agarwal, S/o.Jugtiram Agarwal, Aged about 61 years, Occ: Business, R/o.H.No.7475, Srinagar Colony,
Tirumalgherry, Secunderabad Cantonment ...Plaintiff
And
M/s.Qualitea Cafe, Rep.by its Managing Partner, 2 O.S.No.1929 of 2013 and O.S.59/2014
Ali Asghar Akhtari Rayini, 12361/60 Part, Ramakrishna Mutt Road,
Domalguda, Hyderabad – A.P. ....Defendant
This suit coming on this day before me for final disposal in the presence of Sri A.Raju, Advocate for plaintiff and, Sri Md.Shafiuddin Advocate for the defendant and the matter having been heard and stood over for consideration till this day, this court delivered the following:
C O M M O N J U D G M E N T
These two suits are clubbed together along with the orders passed by this court on 06.08.2015 and the evidence which is recorded in O.S.No.59/2014 is treated as evidence in both the suits, since the parties in these suits and the subject matter is one and the same, thus two suits are being disposed off by this common judgment.
2.Plaint pleadings in O.S.No.1929/2013 :
This suit is filed by the plaintiffs seeking grant of
(i) perpetual injunction restraining the defendant from illegally disposing the plaintiffs from the suit schedule property which is ground + first floor of premises bearing municipal No.12361/60 part, admeasuring approx.85 sq.yards, situated at Ramakrishna Mutt Road, Domalguda, Hyderabad,
(ii) To permit the plaintiffs to deposit the rents from October, 2013 to January, 2014 at the rate of Rs.9,000/ per month totaling to Rs.36,000/ and future rents at the rate of Rs.9,000/ per month into the suit account and for costs.
3 O.S.No.1929 of 2013 and O.S.59/2014
3.The averments of the plaint in a nutshell are summarized as under :
The plaintiffs are the tenants of the suit schedule property i.e, all that premises No.12361/60 part consisting of ground plus first floor along with Pan shop admeasuring approx.85 sq.yards situated at Ramakrishna Mutt Road,
Domalguda, Hyderabad, for which, the defendant is the owner. The first plaintiff acquired the suit schedule property from the defendant for the purpose of running the hotel business under the name and style of Qualitea Cafe. The first plaintiff is represented by its Managing Partner who is the second plaintiff. A rental agreement was entered between the plaintiffs and the defendant on 09.10.1999 initially for a period of 7 years and further agreed to extend for another period of 7 years on mutual consent by both parties. The initial rent was Rs.500/ per month exclusive of electricity and water consumption charges payable by the plaintiff separately and it was further agreed to enhance the rent at the rate of 5% for every three years on the last paid monthly rent. The defendant has to pay the property tax for the suit schedule property as per the terms of rental agreement. The defendant on 09.10.1999 delivered the vacant peaceful physical possession of the suit schedule property to plaintiffs to have and hold the same as tenant for the above mentioned business of hotel purpose since thereafter the plaintiffs are in physical possession of the suit schedule property till this date of filing of this suit.
Upon the expiry of the initial period of 7 years under the unregistered deed dated 09.10.1999 the defendant did not come forward to execute a fresh rental deed or 4 O.S.No.1929 of 2013 and O.S.59/2014 lease deed for such further period but permitted the continuance of the plaintiffs as tenants for the suit schedule property by regularly collecting the monthly rents at the enhanced rates. The defendant herein though had agreed to enhance the rent at the rate of 5% after every three years yet however by exerting undue pressure and by force got enhanced the rent at exorbitant rates. Therefore, now the present monthly rent is Rs.9,000/ payable per month exclusive of electricity and water consumption charges. Since the inception the defendant had to tender the property tax for the suit schedule property. The defendant received rents up to September, 2013 and he used the suit property for collection of rents. However, since October, 2013 the defendant is not collecting the rents from the plaintiffs deliberately to show them as defaulters. The plaintiffs tendered the monthly rent for October and
November, 2013 by money order but it was refused by the defendant. The plaintiffs issued a legal notice on 02.12.2013 calling upon the defendant to furnish his bank account number for deposit of the rent but there was no reply from the defendant.
The defendant issued a legal notice on 11.10.2013 calling upon the plaintiffs to vacate the suit schedule property for which, the plaintiffs got issued a reply notice dt.18.10.2013 which was received by the defendant who also issued a rejoinder.
The defendant came to the suit schedule property on 02.12.2013 and tried to dispossess the plaintiffs which attempt was resisted by the plaintiffs but the defendant threatened the second plaintiff that he would dispossess the plaintiffs from the suit schedule property. Hence, the suit.
5 O.S.No.1929 of 2013 and O.S.59/2014
4.A written statement is filed by the defendant admitting that the plaintiffs are the tenants of the suit schedule property and that the defendant is the owner of the same. It is denied that after the expiry of the rental agreement dated 09.10.1999, it was agreed to extend the lease for further period of 7 years. After expiry of the original tenancy period, no fresh agreement was executed in writing. The plaintiff
No.1 however, is continuing in the premises as a tenant. It is true that the plaintiff
No.1 is paying rent at Rs.9,000/ per month till his tenancy was terminated. It is true that rent was paid upto September, 2013 and thereafter this defendant got issued termination notice dt.11.10.2013 calling upon the first plaintiff to vacate and hand over the premises within 15 days but the plaintiff No.1 issued reply dt.18.10.2013 for which, a rejoinder notice dt.05.11.2013 was issued requesting the first plaintiff to vacate the suit premises on 30.11.2013. However, though this defendant furnished the bank account towards to the first plaintiff for depositing of rent but the first plaintiff failed to deposit the admitted rents. This defendant never indulged any illegal acts and never admitted to evict the plaintiffs by adopting illegal methods. The plaintiff No.1 violated the terms of the tenancy and sublet the same. This defendant has initiated illegal steps for ajectment of the plaintiffs from the suit schedule property by filing O.S.No.59/2014 on the file of this court.
Therefore, the suit is liable to be dismissed with exemplary costs.
5.On the basis of the above pleadings, the following issues are settled for trial.
6 O.S.No.1929 of 2013 and O.S.59/2014
Viz.,
1. Whether the plaintiff is entitled to the relief of perpetual injunction
restraining the defendant to dispossess him from the suit schedule
property without following the due process of law as prayed for ?
2. Whether the plaintiff is entitled to deposit the rent @ Rs.9,000/ per
month from October, 2014 to January, 2014 and continue to deposit
rents as prayed for ?
3. To what relief ?
6.Pleadings in O.S.No.59 of 2014 :
This suit is filed by the plaintiff seeking the following reliefs :
1. Directing the defendant to vacate and hand over vacant and physical possession of all that entire premises No.12361/60 part, consisting of ground plus first floor, situated at Ramakrishna Mutt Road, Domalguda,
Hyderabad,
2. Directing the defendant to pay mesne profits at Rs.30,000/ per month from the date of suit till the date of delivery of vacant and physical possession of the suit schedule property
3. and to award costs of the suit.
7.The averments of the plaint in a nutshell would demonstrate as under :
The plaintiff is the absolute owner of the suit schedule property which is in occupation of the defendant on a monthly rent of Rs.9,000/ exclusive of electricity and water charges and is running the business under the name and style of 7 O.S.No.1929 of 2013 and O.S.59/2014
Qualitea Cafe. The defendant was inducted into the said premises under a rental agreement dated 09.10.1999, the tenancy was commenced from 01.11.1999 initially for 7 years, the plaintiff is in the habit of issuing the rental receipts, the defendant lastly paid the rent for the month of September, 2013 and is due from October, 2013. The defendant is subletting the premises acting contrary to the terms of the tenancy and not maintaining the premises properly. The plaintiff issued legal notice on 11.10.2013 terminating the tenancy of the defendant after expiry of 15 days from the date of receipt of the said notice and also claimed damages @
Rs.30,000/ per month towards unauthorized use and occupation. The defendant received the said notice on 15.10.2013 and issued a reply dated 18.10.2013. the plaintiff again got issued another rejoinder notice dt.05.11.2013 calling upon the defendant to hand over the schedule property on or before 30.11.2013 and further claimed damages from 01.12.2013 if he fails to deliver the property. The said re joinder notice was received by the defendant and his counsel on 11.11.2013, but till date he did not comply with the same. The defendant is liable to pay mesne profits @ Rs.30,000/ per month for the unlawful and illegal occupation of the suit premises from the termination of his tenancy. Hence the suit.
8.The defendant has filed a written statement admitting the ownership of the plaintiff over the suit schedule property and also the monthly rent of Rs.9,000/ for the same which is exclusive of electricity and water consumption charges and also 8 O.S.No.1929 of 2013 and O.S.59/2014 execution of the rental agreement on 09.10.1999 commencing from 01.11.1999 for a period of 7 years. It is also admitted that the defendant is running the business of
Irani Type Restaurant Bakery and Cafe under the name and style of Qualitea Cafe.
After the completion of 7 years, the defendant did not come forward to execute fresh rental agreement and the plaintiff and the defendant orally and agreed and permitted to continue the tenancy on the same terms. Defendant is regular in tendering the monthly rents without default on or before 10th of English Calender month which is collected by the plaintiff personally. Plaintiff received the rents upto September, 2013 but when he did not collect the rent from October, 2013 to show this defendant as defaulter. It is denied that this defendant has sublet the suit premises and violated deed terms of conditions of the tenancy. This defendant issued a reply to the legal notice dt.11.10.2013 which was defective and not according to the requirements of Section 106 of Transfer of Property Act. Another legal notice dated 05.11.2013 issued by the plaintiff is vague and there is no reasonable and lawful ground to terminate the tenancy of this defendant. The plaintiff is therefore not entitled to evict this defendant or any mesne profits @
Rs.30,000/ per month. There is no cause of action for the suit. The monthly rents fro October, 2013 and November, 2013 sent by this defendant through money order were refused by the plaintiff and he did not reply to the legal notice dt.02.12.2013 under which, the plaintiff was called upon to furnish his bank account for deposit of the monthly rent. The entire family of the defendants is depending on the 9 O.S.No.1929 of 2013 and O.S.59/2014 income on the said hotel business and he would suffer irreparable loss and hardship if he is evicted from the suit premises. Hence this suit is liable to be dismissed with exemplary costs.
9. On the basis of the above pleadings, the following issues are settled for trial. Viz.,
1. Whether the plaintiff is entitled to evict the defendant from the suit
schedule property and take delivery vacant possession as prayed for ?
2. Whether the plaintiff is entitled to recover mesne profits as prayed for ?
3. To what relief ?
10.As noticed hereinabove, both the suits evidence is recorded in
O.S.No.59/2014 which is treated as evidence in O.S.No.1959/2013.
11.To substantiate the above pleadings, on behalf of the plaintiff in O.S.59/2014 he examined himself as PW1 and got marked Ex.A1 to A8. The Managing Partner of the defendant in O.S.No.59/2014 is examined as DW1 and Ex.B1 to B7 are marked on behalf of the defendant.
12.Issue No.1 in O.S.No.59/2014 : The admitted facts which emerge from the material on record is that the plaintiff is the landlord for the suit schedule property for which, the defendant is a tenant having obtained the said premises on lease for 10 O.S.No.1929 of 2013 and O.S.59/2014 running the business of Irani type Restaurant, bakery and cafe under the name and style of Qualitea Cafe. It is also not disputed that the tenancy commenced from 01.11.1999 and there was a written rental agreement executed on 09.10.1999 but the same was not marked on either side. It is also not disputed that the tenancy was initially for 7 years and thereafter no written rental agreement is executed but the tenancy is continued. Admittedly the present monthly rent is Rs.9,000/ for the suit schedule property. The plaintiff as PW1 has testified that as the defendant has sub let the premises and not maintaining the suit schedule property properly and therefore, the tenancy of the defendant is terminated by issuing Ex.A1 legal notice dt.11.10.2013 by terminating the tenancy of the defendant calling upon him to vacate and hand over the physical possession of the suit schedule property after expiry of 15 days from the date of receipt of the said notice. It is not disputed that the original of Ex.A1 is received by the defendant for which, Ex.A2 reply is given to the counsel for the plaintiff by contending that the notice issued under Ex.A10 is not proper and did not fulfill the requirements of the provisions of Section 106 of the Transfer of Property Act. Ex.A3 is the postal cover for receiving Ex.A2.
Thereafter, it appears that the plaintiff has again issued another legal notice dt.05.11.2013 under Ex.A4 by calling upon the defendant to vacate and hand over the physical possession of the suit premises to the plaintiff on or before 30.11.2013 failing which, the defendant is liable to pay damages from 01.12.2013 @
Rs.30,000/ per month. Ex.A5 consists of three postal receipts for sending the 11 O.S.No.1929 of 2013 and O.S.59/2014 original of Ex.A4 to the defendant. Ex.A6 and Ex.A7 are the acknowledgments to show that the original of Ex.A4 is received by the defendant while Ex.A8 is the return postal cover sent to the defendant to his residential address.
13.The defendant who examined himself as PW1 in his cross examination has categorically admitted about the ownership of the suit premises by the plaintiff, the monthly rent of Rs.9,000/ and also the receipt of Ex.A1. He has categorically admitted that under Ex.A1 legal notice, he was given time for vacating the suit premises 15 days after receiving the said notice. He has also admitted that he was again given time to vacate the suit premises by 30.11.2013 and the present suit is filed before this court by the plaintiff on 18.01.2014. Though he claimed in his cross examination that he has vacated his residence from plot No.209C block,
Humayunnagar, Hyderabad in the year 2000 but he has not intimated the same to the plaintiff. He has categorically admitted to have received Ex.A1 and Ex.A4 at his hotel address and Ex.A8 contained his old address. He further testified that he knows the contents of Ex.A1 and A4 and the tenancy was terminated under Ex.A1.
He further denied a suggestion that he has acted contrary to the terms of the tenancy. The defendant has marked Ex.B1 which was the legal notice sent by the plaintiff (already marked as Ex.A4), Ex.B2 which is the reply notice issued to
Ex.A1 (its original is marked as Ex.A2) and the postal receipt of Ex.B2 as Ex.B3 and postal acknowledgment of Ex.B2 as Ex.B4. Further more, the defendant also 12 O.S.No.1929 of 2013 and O.S.59/2014 got marked Ex.B5 which is the legal notice issued by the plaintiff already marked as Ex.A4 and the four money order receipts under Ex.B6, another legal notice dt.02.12.2013 sent to the plaintiff as Ex.B7 along with the postal receipt and postal acknowledgment of the defendant.
14.It is apparent from the material on record including the admissions of the defendant as DW1 in his cross examination that he has received the original of
Ex.A1 under which his tenancy was terminated after expiry of 15 days from the date of receipt of the said notice. Further more, in pursuance of Ex.A2 issued on behalf of the defendant, the plaintiff has again issued another rejoinder legal notice under Ex.A4 clarifying the date mentioned in Ex.A1 by calling upon the defendant to vacate and hand over the possession of the suit schedule property on or before 30.11.2013. Therefore, a combined reading of Ex.A1, Ex.A2 and Ex.A4 as discussed above, it is manifestly discernible that the tenancy of the defendant is terminated by the plaintiff and the receipt of Ex.A1 and A4 has also been admitted by the defendant. The defendant however, did not vacate the suit schedule property on or before 30.11.2013.
15.it is not disputed by the defendant that the plaintiff is the owner of the suit schedule property and the present monthly rent is Rs.9,000/ for the suit schedule property. However, even after receipt of Ex.A1 to A4 under which, the tenancy of 13 O.S.No.1929 of 2013 and O.S.59/2014 the defendant is validly terminated, the defendant did not vacate the suit schedule property which resulted in filing of the present suit by the plaintiff. The learned counsel for the defendant has contended that the tenancy of the defendant is not validly terminated and 15 days clear notice is not given to the defendant by the plaintiff after receipt of Ex.A1 and therefore, it cannot be said that Ex.A1 has fulfilled the requirements of Section 106 of the Transfer of Property Act.
16.In order to appreciate the aforesaid contention of the defendant, the provisions of Section 106 of the Transfer of Property Act are extracted as under :
“106. Duration of certain leases in absence of written contract or local usage :
1. In the absence of a contract or local law or usage to the contrary, a lease of immovable property for agricultural or manufacturing purposes shall be deemed to be a lease from year to year, terminable, on the part of either lessor or lessee, by six months notice ; and a lease of immovable property for any other purpose shall be deed to be a lease from month to month, terminable, on the part of either lessor or lessee, by fifteen days' noitce.
2. Notwithstanding anything contained in any other law for the time being in force, the period mentioned in subsec.(1) shall commence from the date of receipt of notice.
14 O.S.No.1929 of 2013 and O.S.59/2014
3. A notice under Subsection (1) shall not be deemed to be invalid merely because the period mentioned therein falls short of the period specified under that subsection, where a suit or proceeding is filed after the expiry of the period mentioned in that subsection.
4. Every notice under SubSection (1) must be in writing, signed by or on behalf of the person giving it, and either be sent by post to the party who is intended to be bound by it or be tendered or delivered personally to such party, or to one of his family or servants at his residence, or (if such tender or delivery is not practicable) affixed to a conspicuous part of the property.
17.The Hon'ble High Court of Andhra Pradesh in a decision reported in
SPLASH LE SURE PARK (P) LTD., GUNTUR Vs METTU CHANDRA
SEKHARA REDDY AND OTHRS {2013 (2) ALD 648} while interpreting the provisions of Section 106 of Transfer of Property Act and subsection 3 thereof as amended by Amending Act 2002 has categorically held that the notice issued under
Subsection (1) of Section 106 of Transfer of Property Act of 1882 shall not be invalid merely because the period mentioned in the said notice false short of the period specified under that subsection. Therefore, in the light of the provisions under subsection (3) of Section 106 of Transfer of Property Act and in the light of the ratio laid down in this decision and since admittedly the tenancy for the suit 15 O.S.No.1929 of 2013 and O.S.59/2014 schedule property is month to month, even though 15 days prior notice is not given to the defendant by the plaintiff calling upon him to vacate the suit property after receiving Ex.A1, but still Ex.A1 is held to be valid. Moreover, in Ex.A4 dt.05.11.2013, which is also received by the defendant the defendant was called upon to vacate the suit schedule premises on or before 30.11.2013. The defendant has not disputed the receipt of the Ex.A4.
18.In another decision of the Hon'ble High Court of Andhra Pradesh reported in GURRAM NAGAIAH Vs KODURU RADHAKRISHNAIAH (DIED) PER
LRS., {2012 (2) ALT 445} it has been categorically held while analysing the provisions of Section 106 of Transfer of Property Act in para 10 of the judgment that if the suit is instituted after issue of quit notice, any defect in quit notice would not defeat the right of the lessor, in view of the amendment brought to Section 106 of Transfer of Property Act ( by Amending Act, 2002 to Section 106(3) of Transfer of Property Act). In his cross examination the defendant has categorically admitted that the suit is filed on 18.01.2014 and he has received Ex.A1 to A4. The plaintiff as PW1 in his cross examination has categorically admitted that the initial monthly rent was Rs.5000/ and at present it is Rs.9,000/ per month and that he entered a lease deed on 09.10.1999 that the defendant, initially for a period of 7 years. He denied a suggestion in his cross examination that Ex.A4 is a defective 16 O.S.No.1929 of 2013 and O.S.59/2014 notice and he got issued Ex.A4 with all false and baseless contentions.
Interestingly, no suggestion is given to PW1 the defendant has not sublet the premises. PW1 however, admitted in his cross examination that the defendant has deposited a sum of Rs.3,60,000/ as refundable security deposit. Though PW1 is cross examined at length on behalf of the defendant, but nothing is elicited to discredit his testimony or to demonstrate that Ex.A1 to A4 are defective or that they were not served on the defendant. Therefore, in the light of the legal position enumerated above, in the absence of any defect pointed out by the defendant in
Ex.A1 and A4 which were admittedly received by him, this court holds that the tenancy of the defendant is validly terminated by the plaintiff and as the defendant has not vacated the suit schedule property even after termination of his tenancy, the plaintiff is entitled to delivery of vacant possession of suit schedule premises as prayed for. This issue is answered infavour of the plaintiff.
19.Issue No.2 in O.S.59/2014 : The plaintiff in the plaint pleadings has claimed a sum of Rs.30,000/ per month towards mesne profits from the date of the suit till the date of delivery of vacant possession of the suit schedule property by the defendant. The present suit is filed on 18.01.2014. Ex.A4 depicts that the tenancy of the defendant is terminated by the plaintiff and the defendant was called upon to hand over the vacant possession of the suit schedule property on or before 30.11.2013. However, the plaintiff is claiming the mesne profits of Rs.30,000/ 17 O.S.No.1929 of 2013 and O.S.59/2014 from the date of the suit i.e., on 18.01.2014. In support of his case, in this regard, the plaintiff has not placed any material on record to demonstrate that the suit schedule property would fetch a monthly rent of Rs.30,000/ as on 01.12.2013. The defendant no doubt in his cross examination has admitted that the present rental value in the vicinity would fetch Rs.30,000/ per month. However, this admission of the defendant in his cross examination is ambiguous and cannot be considered to reflect the exact monthly rent of th suit schedule property as on 11.04.2016 on which date DW1 was cross examined.
20.It is however, contended by the learned counsel for the plaintiff that this admission of DW1 is sufficient to hold that the suit schedule property would fetch a monthly rent of Rs.15,000/ and therefore, as the plaintiff has claimed
Rs.30,000/ only per month there is no impediment for granting the same to the plaintiff. The plaintiff has not filed any documentary proof to demonstrate that the suit schedule property would fetch a monthly rent of Rs.30,000/ as on the date of filing of the suit. This admission of DW1 cannot be the sole basis for determining the mesne profits for the suit schedule property in the absence of any other acceptable and cogent evidence adduced by the plaintiff to substantiate his claim in this regard. In any event, the plaintiff is always at liberty to take appropriate steps for filing separate proceedings for mesne profits. This issue is therefore, answered against the plaintiff.
18 O.S.No.1929 of 2013 and O.S.59/2014
21.Issue No.1 in O.S.1929/2013 : As discussed above, the plaintiffs in the suit are the tenants of the defendant on the present monthly rent of Rs.9,000/ and are carrying hotel business under the name and style of Qualitea Cafe. The present suit is filed by the plaintiffs seeking the relief of perpetual injunction to restrain the defendant from illegally dispossessing the plaintiffs alleging that on 21.12.2013, the defendant tried to illegally dispossess the plaintiffs from the suit schedule property and thereafter on each and every date till filing of the suit.
However, the plaintiffs have not specifically furnished the said dates on which, the alleged attempts were made by the defendant to dispossess the plaintiffs. The second plaintiff who examined himself as Dw1 in O.S.No.59/2014 has categorically admitted that the defendant has filed O.S.No.59/2014 seeking his eviction from the suit schedule property after issuing Ex.a1 to A4 legal notices which are received by him. In so far as the cause of action for filing
O.S.No.1929/2013 is concerned, the second plaintiff in the suit who examined as
DW1 in O.S.No.59/2014 has categorically admitted that the plaintiff (defendant in this suit) has visited the suit schedule property either in 2010 or 2012, he used to go to Lalbazar to meet the plaintiff and the plaintiff never visited the suit schedule property nor harassed him to dispossess from the suit schedule property. The second plaintiff herein as DW1 in O.S.No.59/2014 in his further cross examination has admitted that he did not mention (in the plaint) who are the persons interfered with his possession and that some unknown person who has no concerned with the 19 O.S.No.1929 of 2013 and O.S.59/2014 plaintiff used to visit the suit schedule property. Plaintiffs in this case for the reasons best known to him have also not examined any of the person or any of the customers of the hotel the defendant has made attempts to dispossess the plaintiff from the suit schedule property on 31.12.2013. Moreover, in view of the aforesaid admission of DW1, it is apparent that the defendant in the suit has never visited the suit schedule property on 31.12.2013 he visited there in the year 2011 or 2012.
Therefore, in the absence of any acceptable material adduced by the plaintiffs established the alleged acts of dispossess attempted by the defendant to dispossess the plaintiffs from the suit schedule property, this court holds that there is not cause of action for filing the present suit and as such, the plaintiffs are not entitled for the relief of perpetual injunction as prayed for.
22.Issue No.2 in O.S.No.1929/2013: The plaintiffs have sought a direction in the suit to deposit the rents @ Rs.9,000/ per month for the suit schedule property from October, 2013 to January and to continue to deposit the future rents @ same rate into the suit account. It is the claim of the plaintiffs that the defendant who refused to receive the rents tendered by the plaintiffs and for the months of
October, 2013 though they were sent by money order, also did not furnish his bank account inspite of receiving the legal notice issued to him under Ex.B7 for which, his postal acknowledgment is also filed. Though the defendant herein who examined as PW1 has stated that he does not know whether the tenant has issued 20 O.S.No.1929 of 2013 and O.S.59/2014 legal notice under Ex.B7 but he has not specifically disputed the receipt of the said legal notice. In any event, the landlord as PW1 also admitted in categorical terms in his cross examination that the defendant is paying rents to him by depositing the same in his bank account furnished by him by filing a memo in the suit.
23.In this view of the matter, the plaintiffs are entitled to deposit the monthly rents in respect of the suit schedule property in the bank account of the landlord/defendant on or before 10th of every succeeding month till the plaintiffs are evicted from the suit schedule property by following due process of law. This issue is answered accordingly.
24.Issue No.3 in O.S.No.59/2014 : In the result, this suit in O.S.No.59/2014 is decreed with costs in favour of the plaintiff and against the defendant by directing the defendant to vacate and hand over the vacant peaceful possession of the suit schedule property to the plaintiff within a period of 2 months from today failing which, the plaintiff is entitled to recover the possession of the suit schedule property by taking recourse to due process of law. The tenant (plaintiffs in
O.S.No.1929/2013) shall deposit the monthly rent @ Rs.9,000/ per month for the
suit schedule property in the bank account of the landlord (plaintiff in
O.S.No.59/2014) on or before 10th of every succeeding month without fail and shall
deposit the arrears if any within a period of 2 months from today. In case of 21 O.S.No.1929 of 2013 and O.S.59/2014 default, the landlord is entitled to recover the said amount by following due process of law. O.S.No.1929/2013 is dismissed with costs.
Dictated to the Personal Assistant, typed by her, corrected and pronounced
by me in the open court on this the 1st day of November, 2016.
V Senior Civil Judge,
City Civil Court:Hyderabad
APPENDIX OF EVIDENCE
WITNESSES EXAMINED
For Plaintiff:For Defendant: PW1: J.Ramdhari AgarwalDW1: Ali Asghar Akhtari Rayini
DOCUMENTS MARKED
For Plaintiff: Ex.A1 is office copy of termination notice dt.11.10.2013. Ex.A2 is original reply notice dt.18.10.2013. Ex.A3 is original postal cover under which reply notice received. Ex.A4 is office copy of rejoinder notice dt.05.11.2013. Ex.A5 is three original postal receipts dt.08.11.2013. Ex.A6 is original postal acknowledgment card of the defendant's firm. Ex.A7 is original postal acknowledgment card of the defendant's counsel. Ex.A8 is the original returned cover from the defendant's Managing Partner.
For Defendant : Ex.B1 is the office copy of notice issued by defendant addressed to the plaintiff dt.11.10.2013. Ex.B2 is the office copy of the reply notice to the notice dated 11.10.2013 dt.18.10.2013. Ex.B3 is the original postal receipt for sending reply notice 19.10.2013. Ex.B4 is the original postal acknowledgment for receiving reply notice by the defendant dt.25.10.2013. Ex.B5 is the office copy of rejoinder to the reply notice dt.05.11.2013. Ex.B6 are the four original Emoney order returned to remitted to postal authorities ddt.20.11.2013. Ex.B7 is the office copy of legal notice got issued by plaintiff addressed to defendant for bank account number dt.02.12.2013.
22 O.S.No.1929 of 2013 and O.S.59/2014
V Senior Civil Judge,
City Civil Court:Hyderabad