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IN THE COURT OF THE XIX ADDITIONAL SENIOR CIVIL JUDGE,
CITY CIVIL COURT, AT SECUNDERABAD.
DATED THIS THE 28th DAY OF SEPTEMBER, 2020
PRESENT: SRI D.DURGA PRASAD
III SENIOR CIVIL JUDGE
FAC:XIX ADDL. SENIOR CIVIL JUDGE
O.S.No.328 of 2016
Between:
M.S.C. Educational Society Represented by its Secretary Sri M.S.Nagesh Chander S/o.Late Sri M.S.Chandraiah Aged about 48 years, Occ: Business R/o.1-1-593/C, Gandhinagar
Hyderabad. ...Plaintiff
AND
Bhusan L. Navani S/o Lachman T. Navani Aged about: 38 years, Occ: Business, Shop No.13, M/s Bhusan Mobile Point, Stilt Floor, Tirumala Hong Kong Bazar, Municipal No.1-7-281-283, Tirumala Commercial Complex,
Paradise Circle, S.D.Road, Secunderabad – 500003. ...Defendant
This suit is coming before me for final disposal in the presence of Sri.G.Dhananjai, the learned Advocate for the plaintiff and of Sri. M. Srinivasa Rao, the learned Advocate for the defendant and the matter having been heard and 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 plaintiff under Order VII Rule 1 for eviction, recovery of arrears of rent, arrears of maintenance, for mesne profits, future mesne profits @
Rs.50,000/- per month from November, 2016 till the delivery of suit schedule property to the plaintiff, for admitted rents @ Rs.11,275/- per month till the disposal of the suit.
2. The plaintiff submits that the plaintiff is a society registered under the A.P. Societies Registration Act, incorporated in the year 1992 vide Registration
No.2548/1992 and the plaintiff society is represented by its secretary Sri M.S. Nagesh
Chander. The plaintiff society is registered under the Societies Act and the society’s
Page Number 2 of 17 main aims and objectives was for the purpose of promoting and imparting education to the needy and down trodden people and to provide infrastructure to the educational institutions especially in the villages for the purpose of educating poor and needy people and to provide necessary amenities for providing facilities for the economic backward classes of the society.
3. The plaintiff society to sustain on its own reserves has acquired several properties in Metpally village of Mahaboobnagar District and Hyderabad.
In Metpally village the society has established and running several educational institutions under the direct management and control of the plaintiff society. The plaintiff society accordingly was provided with permanent financial resources to meet its developmental activities such as to provide education to the needy people who has immense talent in the rural area who cannot afford to pay the fees and also to provide good infrastructure and technology and faculty in the filed of education and technical education. The income generated from the rental income of the property of the plaintiff society situated at 1-7-281-283 (old no 126 A) situated at SD Road popularly known as Tirumala Hongkong Bazar, Secunderabad is being spent for running the said educational institutions. The income from the said property since several years is supporting financially for the activities of the plaintiff society. The intends of the plaintiff society is to fulfill the aims and objectives of the society which was established by the founder member Sri M.S.Chandraiah and it is giving the best education to all the rural public.
4. The plaintiff society submits that it is the absolute owner and possessor of the commercial property consisting of shop No.13 in premises No.1-7-281-283, in the stilt floor forming part of Tirumala Hong Kong Bazar in Tirumala Commercial
Complex, Paradise Circle, S.D.Road, Secunderabad, admeasuring approximately 75 sq.ft. which is herein after referred to as schedule property and more fully delineated in the sketch plan marked in red colour annexed to this plaint and the said schedule property forms part of Tirumala Commercial Complex.
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5. The plaintiff submits that the defendant is the tenant of the said schedule property and running mobile business in the name and style of M/s. Bhusan Mobile Point, on an initial rent of Rs.9,320/- per month from
November, 2014 though then existing prevailing rent at that time was much more than rent agreed. The defendant requested and assured the plaintiff society that the agreed rent of Rs.9,320/- per month will be regularly paid to the plaintiff society on or before 5th of every month and further agreed to enhance the rent from January, 2015 based on the then prevailing monthly rent in the locality of the schedule property. In order to place on record the agreed terms the plaintiff society and the defendant has reduced the terms into writing and the defendant has executed a rental agreement dt.04-11-2014 in favour of the plaintiff society. As per the said agreement, the defendant has to pay the monthly rent of Rs.9,320/- which is exclusive of water, electricity and usual maintenance charges of the complex and municipal taxes and the agreed terms commenced from 04-11-2014 with a further understanding that the rent shall be enhanced from January, 2015 @ 10,250/- per month and the same agreed by the defendant that in the event of plaintiff intends to extend the period of lease, it beyond October, 2015 subject to the condition that the defendant has to enhance the rent by 10% on the previous existing rent. The defendant, as agreed started paying the increased rent from January, 2015 @ Rs.10,250/- per month. The defendant further promised the plaintiff society that the further enhanced rent as agreed shall be paid from October, 2015 i.e., at the time of renewal of tenancy. The defendant also deposited with the plaintiff society a sum of Rs.25,000/- towards interest free deposit and 50% of the rent deposit amount is refundable to the defendant at the time of vacating and handing over the vacant possession of the suit schedule property. Accordingly, the defendant company was paying the rent @
Rs.9,320/- per month till December, 2014 and Rs.10,250/- per month from
January,2015 and from October, 2015 Rs.11,275/- per month.
6. The plaintiff society further submits that since the month of October, 2015 the plaintiff was insisting the defendant to pay the agreed enhanced
Page Number 4 of 17 rent as per the prevailing market rate in the locality and inspite of several reminders and requests to pay agreed enhanced rent, the defendant was postponing and dodging the matter on one pretext or the other, thereby the defendant not coming forward to pay the agreed enhanced rent and continued the tenancy even after the expiry of the agreed period under the said Rental Agreement and therefore the tenancy of the defendant is tenancy from month to month.
7.The plaintiff further submits that as the defendant did not come forward for the renewal of the tenancy and was not paying the rent as per the terms agreed, and the defendant in order to continue the possession illegally also got filed a case in
O.S.No.486 of 2015 on the file of I Junior Civil Judge, City Civil Court at
Secunderabad suppressing the true facts and with false and frivolous allegations that plaintiff herein who is defendant No.2 therein is trying to interfere with the possession of the defendant herein and obtained an interim injunction in I.A.No.479 of 2015 in O.S.No.486 of 2015 only with an intention to continue the possession under the guise of injunction orders and thereby thwarting the demand made by the plaintiff society to pay the agreed enhanced rent and continued the tenancy illegally under the guise of the said interim orders. The defendant herein falsely impleaded the plaintiff herein in the said suit as defendant No.2 without seeking any relief against the defendant No.2 therein. In fact the defendant herein is trying to blackmail the plaintiff by colluding with the defendant No.1 therein and he is guilty of committing of breach of agreed terms and liable for eviction. In view of the said facts, the plaintiff society did not wish the defendant to continue his tenancy.
Therefore, the plaintiff society got issued a quit notice dt.28-05-2016 by terminating the tenancy by way of termination and calling upon the defendant to vacate and handover the physical vacant possession of the suit schedule property within 15 days from the date of receipt of said quit notice and the said notice was received by the defendant on 31-05-2016. Inspite of receiving the legal notice the defendant failed to vacate and hand over the possession of the suit schedule property and failed to pay the admitted rents, maintenance charges, electricity charges and other expenditure
Page Number 5 of 17 though he was bound to pay but the defendant replied with false and frivolous allegations.
8. The plaintiff further submits that the defendant having continued the tenancy even after the expiry of the agreed period of tenancy, the tenancy of the defendant is month to month and the tenancy is terminable by way of notice. The rent was payable every month on or before 5th of every succeeding month. Apart from the rent that was agreed to be paid as per the rental agreement dt.04-11-2014, the defendant is bound to pay the maintenance charges @ Rs.1,500/- per month and electricity charges payable for usage of common areas as agreed, the defendant is also liable to pay municipal tax for the said schedule property under his occupation.
9.The defendant has committed willful breach of the terms agreed by not paying even admitted rents and became chronic and willful defaulter of rents from the month of January, 2016 inspite of repeated requests and demands made by the plaintiff and thereby causing serious financial hardship to the plaintiff society who is totally defendant on the rental income for supporting the educational institutions in
Metpally Village Mahaboobnagar District. As stated supra since the defendant is not willing to pay even the agreed rent and committed breach of the terms and since the defendant failed to comply with the demand of the plaintiff, the plaintiff has no other alternative except to approach this court for eviction and for recovery of arrears of rent and mense profits. It is submitted that the defendant was also called upon to pay all the arrears of maintenance, charges, electricity charges and other charges from January 2016 apart from municipal taxes. Therefore the defendant is due and liable to pay a total of Rs.1,72,565/- towards the arrears of rent, arrears of maintenance charges and arrears of municipal tax and electricity dues the details of which are mentioned below.
10.The defendant was also specifically informed that in case the defendant fails to pay the arrears of the said amounts and also in case the defendant fails to handover the physical vacant possession of the schedule property under his
Page Number 6 of 17 occupation within 15 days of date of receipt of legal notice. The defendant shall be liable to pay a sum of Rs.50,000/- per month as mense profits w.e.f., July 2016 for the illegal occupation of the schedule property by the defendant till the date of delivery of the possession of the schedule property to the plaintiff. The defendant received the said legal notice on 31-05-2016 and inspite of receiving legal notice failed to comply with the demand of the plaintiff. However the defendant gave reply with false and frivolous allegations and failed to pay even the admitted rents and other charges. However, the plaintiff is restricting the mesne profits @ Rs.15,000/- per month from July, 2016 till October, 2016 The following are the amounts due and payable by defendants to the plaintiff.
a. Admitted rents from January, 2016 to June, 2016 for 6 months @ Rs.11,275/- Rs.67,650-00 a. Mesne profits for the month of July, 2016 to October, 2016 @ Rs.15,000/- per month for four months Rs.60,000-00 c. Maintenance charges @1500/- per month from January, 2016 to October, 2016 for 10 months Rs.15,000-00 d. Electricity charges from January, 2016 to October, 2016 for 10 months Rs.22,570-00 e. Municipal taxes for one year 2015-16 Rs.2,345-00 f. Amount of notice charges claimed under the said notice Rs.5,000-00
Total amounts due and payable by defendant ------------------------- as on 31st October, 2016 Rs.1,72,565-00 –------------------------
11. The plaintiff submits that the defendant is therefore due and liable to pay the said amount of Rs.1,72,565/- and a decree for Rs.1,72,565/- including for mesne profits and other amount deserves to be passed against the defendant. Since the defendant failed pay the admitted rent and fell in arrears, the plaintiff is entitled to claim interest @ 24% p.a from the date of the suit till the delivery of possession of the suit schedule property.
12.The plaintiff submits that the defendant made false representations to the plaintiff society assuring the plaintiff that he wants to renew the tenancy and pay enhanced rent and in case of not renewing the tenancy the defendant promised to vacate in by October, 2015. When the defendant failed to comply, the plaintiff in the
Page Number 7 of 17 month of November, 2015, the plaintiff again reminded the defendant either to renew the tenancy or to vacate by paying all the admitted outstanding amounts for which the defendant opted to vacate and assured the plaintiff to hand over the possession by 1st week of November 2015 but failed to vacate and even defaulted in paying admitted rent @ Rs.11,275/- per month from January, 2016 and the plaintiff sufficient waited for the defendant to comply with the request and thereby the plaintiff herein has no other alternative except to cause a termination notice issued on 28-05-2016 and inspite of receipt of the said notice the plaintiff failed to pay the outstanding amounts and failed to handover the vacant possession of the suit schedule property. Hence the suit.
13.The plaintiff further submits that it is a charitable society and a non- profitable organization depending totally on the rental income of the schedule property and the interest of the Educational institutions will be seriously affected rendering disservice to the institutions. Therefore,due to the default committed by the defendant, the plaintiff society is unable to meet the expenses of the society. On the other hand, the defendant is reaping benefits from the business the suit schedule property and having annual turnover in several lakhs and deliberately and intentionally not paying the admitted rents and appropriating himself for his business.
As such the plaintiff society is compelled to file the present suit for eviction and also for recovery of other amounts as claimed above and the defendant is liable for the same. Hence the suit.
CASE OF THE DEFENDANT:-
14. The defendant states that with reference to para 1 to 12 of the plaint are denied. The defendant states that the above suit is neither maintainable in law nor on the facts of the case. The defendant states that that the true facts are that
M.S.Avinash Chander and M.S.Akash Chander acquired right, title and interest by virtue of a registered Will Bearing Document No.6/III/2010 Dt:18-10-2010 executed by
Late M.S.Chandraiah S/o M.S.Balakistaiah (grandfather of the above said two persons) and Late M.S.Tirumalamma W/o M.S.Chandraiah (grandmother of the above said two
Page Number 8 of 17 persons) in respect of the schedule property i.e., all that property bearing Shop No.41 in stilt floor in premises bearing Municipal No.1-7-281 and 283 situated at Hongkong
Bazar, Near Paradise Hotel, Secunderabad admeasuring in all 60 square feet.
15.The defendant states that this defendant vacated the premises/shop
No.13 in January, 2016 due to the disputes between the brothers i.e.,M.S.NageshChandraandM.S.ChandraShekarbothsons of Late M.S.Chandraiah and as such this defendant handed over the possession to the actual owners under the Will which possession of the shop was given to this defendant initially by Late M.S.Chandraiah the then owner of the property.
16.The defendant states that this defendant desirous of taking the lease in respect of the schedule shop from the actual owners as per the said Will dt:18-10- 2010 and as per the last wish of the executors of the said Will and after going through the certified copy of the said registered Will for the defendant to recommence the business of MOBILE SHOP under the name and style of M/s Vikas
Mobiles on the previous tenancy coming to an end on the defendant vacating the premises during the period January, 2016 and immediately being re-inducted by the actual owners on entering into Lease Deed dated: 18-02-2016. The defendant is regularly paying the monthly rent of Rs.8,200/- to the actual owners i.e.,
M.S.Avinash Chander and M.S.Akash Chander. Therefore, the defendant prays the court to dismiss the above suit with costs.
17. ISSUES SETTLED FOR TRIAL: Basing on the pleadings above, my learned predecessor settled the following issues for trial:- 1.Whether the plaintiff society is competent to sue?
2. Whether the plaintiff established the Landlord and tenant Jural relationship with tenant?
3. what is the rate of rent payable by the date of quit notice?
4. what is the date of defualt of payment of rent?
5. whether quit notice issued by the plaintiff legally terminated the lease of defendant in the eye of law?
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6. when did the posession of defendant turned unlawful ,if so whether plaintiff can claim mesne profits and what would be the quantum of mesne profits?
7. whether the defendant could putforth any legally sustainable defence in his contention?
8. whether plaintiff can recover amy maintainence charges from the defendant? If so at what rate?
9. To what relief ?
PROCEEDINGS AT THE STAGE OF TRIAL :-
18. During trial, the plaintiff Sri MS Nagesh chander is examined as Pw1 on his behalf and Ex.A1 to A8 are marked. As per the orders in IA 332/18 dated 7-8- 2019, the defence is struck off.
19.Heard plaintiff arguments.
20. Before going into merits on discussion regarding issues, let us go through the oral and documentary evidence adduced by plaintiff in this case. The oral evidence of Pw1 is reiteration of plaint averments as such the contents of the evidence affidavit of Pw1 need not be reproduced here in again.
ISSUE NO:1 and 2
Issues 1, and 2 are answered at once as they are interconnected and there will be no prejudice caused to either side.
21. It the contention of the defendant that the plaintiff society is not entitled to file the suit as the subject property belongs to Ms Chandraiah and the plaintiff society has become defunct, that after death of Ms chandriah, the second son MS Nagesh is trying to grab the property, that he never agreed to pay any amount for maintenance and other amounts as claimed and that he is paying regularly rents to the original owners for the premise he held as tenant. He further denied the Jural relationship and that he is now enjoying the plaint schedule property by virtue of a lease deed Dt: 18-02-2016.
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22. On the first instance, except the oral version of the defendant that he is now enjoying the plaint schedule property by virtue of a lease deed, he has not placed either oral or documentary evidence before this court.
23. The defendant has stated that he deposited Rs 50,000/- with the plaintiff society and stated that the agreement dated 4-11-2014 is void ab-intio. Ex.A6 is the rough sketch of the suit schedule property for which the agreement dated 4-11-2014 has taken place. As such there is no denial of agreement between the plaintiff society and the defendant.
24. Though the defendant denied that he did not file the suit to illegally occupy the suit premises by obtaining the interim orders but he did not deny that in that suit, second defendant is MSC Educational society represented by its secretary MS.
Nagesh Chander. This plaintiff society was shown as proforma defendant in that suit.
25. In one of this batch cases, this court already adjudicated two applications for rejection of plaint and impleadment of two sons of Mr. M.S.Chandra
Sekhar. I.A. No. 231/ 2018 in OS.No. 3 of 2017 filed for rejection of plaint was dismissed by giving detailed reasons on maintainability of same kind of suit in OS 99 of 2016 filed for impleadment of Mr. Avinash Chandra and Mr. Akash Chandra, two sons of M.S.Chandra Sekhar was also dismissed. Upon same reasons, the preliminary objections raised by defendant herein are answered in the negative. It is already held that plaintiff society can sue. The dismissal of impleadment applications say that they are not necessary parties at all to this suit, hence this kind of suit is not bad for non- joinder of necessary parties. The scope of this eviction suit shall not allow the Court to decide rival claim of petitioners who filed petitions for impleadment. Further this is a case where defendant/ Tenant admittedly filed former suit wherein he gave sworn affidavits saying that this plaintiff society was his landlord. Now he is blowing hot and cold saying that one unregistered lease agreement, plaint, affidavits and other papers in his former suit
Page Number 11 of 17 were signed at the instance of this alleged secretary of plaintiff society and filed and later coming to know the facts, he had withdrawn that suit.
26. The Court keenly takes into consideration the former suit filed by this defendant. It shall form basis for this suit and application. Defendant can not be allowed to say what all is favourable to him that too in contradiction to his own earlier version.
27. If he changes his version in this suit, that may amount to offences like perjury or giving false affidavits knowing that contents of his own statements are false. This plaintiff society may set the criminal law into motion to prosecute defendant for criminal action and liability for punishment.
28. HOW DEFENDANT CAN DECIDE WHO IS OWNER OF SUIT SHOP BY
HIMSELF?
Defendant is no way concerned to decide who is actual owner of suit shop.
He is not competent at all to decide the dispute of rival claims between Mr MS
Nagesh Chander as the Secretary of plaintiff society and two sons of Mr MS
Chandra Sekhar. The dispute on ownership of property is not subject matter of this suit. The question of land lordship is distinct from the question of ownership.
Defendant cannot say unilaterally that he surrendered possession of suit shop to Mr
Avinash Chandra and Mr Akash Chandra and obtained fresh lease again from them under new unregistered lease deed. As mentioned above, the defendant has not even filed the lease deed.
29. It is held in State of A.P. Vs. D.Raghukul Pershad (died by LRs) (2012) 8 SCC 584 In this case, Hon'ble Supreme Court held that tenant who has been let into possession by landlord cannot deny landlord's title, however defective it may be so long as he has not openly surrendered possession to landlord.
Appellants, who were tenants of respondents will have to surrender possession to respondents before they can challenge title of respondents. In the authority reported in Ranbir Singh Vs. Asharfi Lal (1995) 6 SCC 580 it is held that question of title is not germane in eviction suit.
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30.According to law under Sec 108 of the Transfer of Property Act, Sec 108 (q) says whenever tenant vacates, he shall put the landlord into possession of leased premises. According to this defendant, admittedly in his former suit claimed that he is tenant of this plaintiff society having unregistered lease deed between them.
31. SECTION 116 OF THE INDIAN EVIDENCE ACT:
As per Section 116 of the Indian Evidence Act, mandates that no tenant of immovable property or person claiming through such tenant, shall, during the continuance of the tenancy, be permitted or to deny that the landlord of such tenant had, at the beginning of the tenancy, a title to such immovable property.
32. The rule of estoppel between landlord and tenant envisaged in Section 116 of the Evidence Act has three core features:
*the tenant is estopped from disputing the title of his landlord over the tenancy premises at the beginning of the tenancy, *such estoppel continues to operate so long as the tenancy continues and unless the tenant has surrendered possession to the landlord, and *Section 116 of the Evidence Act is not the whole law of estoppel between the landlord and tenant.
33. In Kamaljit Singh Vs. Sarabjit Singh 2014 (10) Scale 110, the tenant cannot challenge the title of landlord so long as he is in possession of the premises.
He can do so only after surrendering the possession to the landlord.
34. In the light of above legal position, the defence raised by this tenant is not sustainable in the eye of law. Once he entered into rental agreement with plaintiff society, paid rents to them, obtained receipts from plaintiff society and also filed a former suit saying that this plaintiff society is his landlord, he is estopped to give another version.
35. In such case, how can this defendant surrender possession to Mr
Avinash Chandra and Mr Akash Chandra, when he allegedly vacated. Who are Mr
Avinash Chandra and Mr Akash Chandra to accept alleged surrender of former lease and enter into fresh lease with defendant. In all respects looking from any angle,
Page Number 13 of 17 the defence is lacking any legal foundation.
36. As the defendant being the tenant, he cannot decide right, title or interest over schedule property and when he admits that tenancy, he cannot say that he surrendered possession afresh dierctly to petitioners and again obtained Lease from them and got reinducted into possession of suit mulgi. This version cannot be entertained at all.
37. In view of the above, the plaintiff established that it is competent to sue and even established the landlord-tenant Jural relationship with the defendant and further the defendant failed to place any evidence before the court to establish any legally sustainable defence in his contentions. Accordingly, the issues are answered positively to plaintiff and against the defendant.
ISSUES NO: 3 to 7
38. The Initial rent agreed was Rs 9,320/- from November 2014 and the rent will be paid on every 5th of every month and further agreed to enhance the rent from January 2015. Ex.A4 is the original rental agreement executed by defendant in favour of the plaintiff dt. 04-11-2014. This admitted unregistered rental agreement
dated 4-11-2014 between plaintiff society and defendant is for the rent exclusive of
water, electricity and usual maintenance charges.
39. The defendant, as agreed started paying the increased rent from January, 2015 @ Rs. 10,250/- per month. Accordingly, the defendant was paying the rent @
Rs.9,320/- per month till December, 2014 and Rs.10,250/- per month from January, 2015 till November, 2015.
40. The rent to be payable from October 2015 is 11,275/- per month as per the agreement. As the defendant according to the agreement dated 4-11-2014 vide
Ex.A4 agreed to enhance the rent @ 10 percent for every year on the existing rent.
As such the plaintiff issued termination notice issued on 28-5-2016. Thus the rate of rent payable by the date of quit notice is 11,275/- and date of default of rent is
October 2015 onwards.
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41. Ex.A1 is the office copy of statutory notice dt.21-11-2015 issued by the plaintiff society through their counsel to the defendant, Ex.A2 is the original postal receipt dt.21-11-2015 under which legal notice, Ex A3 is the original acknowledgment of the Regd. Legal notice was issued to the defendant, delivered to the defendant dt.23-11-2015.
42. The defendant failed to reply to the legal notice though he has received the same. There is no plausible explanation as to why there is no reply to the legal notice.
The burden lies on defendant when he pleads payment of rent, to produce primafacie evidence in that behalf. In this case, defendant/ tenant says he has been paying rents to Mr Avinash Chandra and Akash Chandra since January, 2016 onwards. He alleged he judged them as real owners as per Regd Will deed, surrendered possession to them and obtained fresh lease form them. This contention has NO weight and value in the eye of law in the light of his admitted case in his former suit that this plaintiff society is his landlord. Landlordship is different from Ownership. Defendant/ tenant is no way under obligation to ascertain who is legal owner of property. His duty is only to pay rents or seek permission and deposit directly into Court. Atleast from the date of this suit, he must have exercised his rational thinking and sound discretion. He cannot blindly sail with alleged rival claimants viz., Mr Avinash Chandra and Akash Chandra.
Except oral allegations, defendant failed to produce any primafacie evidence to show he paid/ deposited rents from the date of suit.
43. The plaintiff claimed @ Rs 50,000/- per month from the date of quit notice. The rent agreed as per enhancement from the date of defualt is Rs 11,275/-. Though the plaintiff claimed mesne profits @ Rs 50,000/- but he did not place any evidence to show that suit property fetches Rs 50,000/- rent as on date. He stated that the suit premises is situated at Shop No.13, M/s Bhusan Mobile Point,Stilt Floor, Tirumala
Hong Kong Bazar,Municipal No.1-7-281-283, Tirumala Commercial Complex,Paradise
Circle, S.D.Road, Secunderabad – 500003, yet he has not placed any oral or documentary evidence to establish that it fetches the rent as claimed.
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44. Basing on quit notice, termination was valid and possession of defendant turned unlawful by 31-5-2016. From June 2016 onwards, defendant has to pay mesne profits but not rents because he became a person in unlawful possession of suit property.
45.Plaintiff claimed mesne profits @Rs.50,000/- per month. Plaintiff did not adduce any evidence particularly on these lines to claim such a huge amount.
The court reasonably fix mesne profits @ 35,000/- p.m. Accordingly, the issues are answered positively to plaintiff.
ISSUE NO: 8
46. The Plaintiff prayed that defendant has to pay arrears of maintenance charges @ Rs 1500/- per month, arrears of electricity consumption charges and municipal property tax dues besides rental arrears. The agreement vide Ex.A4 speaks of payment of maintenance charges.
47. Let us take an example of a residential apartment or a shop in a commercial complex. All owners/ tenants who are in occupation and enjoyment of their premises shall have to pay maintenance every month besides rent. Such maintenance amount is spent for watchman salary, water charges for common usage etc benefits enjoyed by all of them in common. This is a case where some of the tenants were gained over by rival claimants, hence said tenants agitated against this plaintiff society who was their admitted landlord in their former suit. When some tenants are regularly paying rents and maintenance charges, it becomes burden on them to bear huge rate.
Said maintenance charges must be borne by all occupants equally, let them be tenants or owners. In the light of discussion above, maintenance charges @ Rs 1500 per month are not exorbitant, hence defendant shall pay them from the date of this Order.
Accordingly the issue is answered.
48. Coming to Electricity Consumption Charges, it is widely acceptable to say be it the tenant or owner; whoever is the occupant, shall pay them. One who enjoys the property with electricity, shall have to pay electricity bills. The Court takes a stubborn stand against the defendant/ tenant if there are any dues in electricity bills.
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Not only the rent but also the bills of current must be paid by him. Though he claimed Electricity charges, but the plaintiff has not placed either oral or documentary evidence to show that pending arrears of electricity bills.
49. Coming to Municipal Property Tax dues, the plaintiff has not examined any of the other tenants to say that they are all paying municipal tax amounts also on sharing basis. The plaintiff can prove oral terms of lease with this defendant that he agreed to pay municipal tax amounts also on sharing basis. Further there is no documentary evidence placed for the due tax to be paid. As such the claim for municipal tax amount to that extent is denied.
ISSUE NO:9
50. IN THE RESULT, this petition is partly allowed a. directing the defendant to vacate and hand over vacant and peaceful possession of suit schedule property situated at Shop No.13, M/s Bhusan Mobile Point,Stilt
Floor, Tirumala Hong Kong Bazar,Municipal No.1-7-281-283, Tirumala Commercial
Complex,Paradise Circle, S.D.Road, Secunderabad – 500003 in month.
b. directing the defendant to pay maintenance charges @ Rs 1500/- per month from
June, 2016 to till delivery of suit property.
c. Directing the defendant to pay mesne profits @ Rs 35,000/- per month from
November 2016 to till delivery of suit property.
Dictated to the Personal Assistant, transcribed by her, corrected and
pronounced by me in the open Court on this the 28thday of
September, 2020.
Sd/-
III SENIOR CIVIL JUDGE,
FAC:XIX ADDL. SENIOR CIVIL JUDGE
CITY CIVIL COURT, SECUNDERABAD.
APPENDIX OF EVIDENCE
WITNESSES EXAMINED
ON BEHALF OF THE PLAINTIFF :
PW1 : M.S.Nagesh Chander
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ON BEHALF OF THE DEFENDANT :
- NONE -
EXHIBITS MARKED
ON BEHALF OF THE PLAINTIFF :
1.Ex.A1 is the office copy of statutory notice dt.28-05-2016 issued in A series society through their counsel to the defendant.
2. Ex.A2 is the original postal receipt dt.30-05-2016 under which legal notice was issued to the defendant.
3. Ex.A3 is the original acknowledgment of the Regd. Legal Notice was delivered to the defendant dt.31-05-2016.
4. Ex.A4 is the original rental agreement executed by defendant in favour of the plaintiff dt.04-11-2014.
5. Ex.A5 is the office copy of the plaint in O.S.No.486 of 2015 filed by defendant against the plaintiff society for injunction.
6. Ex.A6 is the rough sketch plan of the suit schedule property.
7. Ex.A7 is the receipt dated 2-10-2015
8. Ex.A8 is the receipt dated 2-11-2018
ON BEHALF OF THE DEFENDANT : - NIL -
Sd/-
III SENIOR CIVIL JUDGE,
FAC:XIX ADDL. SENIOR CIVIL JUDGE
CITY CIVIL COURT, SECUNDERABAD.