IN THE COURT OF THE II SENIOR CIVIL JUDGE:
CITY CIVIL COURT: HYDERABAD.
DATED THIS THE 16 th DAY OF FEBRUARY, 2019.
PRESENT: SRI D RAJESH BABU,
II SENIOR CIVIL JUDGE
CITY CIVIL COURT, HYDERABAD.
OS No.1400 of 2013
&
OS No.1198 of 2013
OS No.1400/2013:
Between:
Smt Suguna, W/o Dr MM Reddy, Aged 62 years, R/o. Flat No.202, Anand Meadows, Anand Bagh,
Ameerpet, Hyderabad....Plaintiff
And
Smt D. Lakshmi, W/o. Sri Srinivas Reddy, Aged 36 years, Occ: Business, R/o. H.No.8-3-167/D/7/2, Kalyan Nagar,
Behind TB Hospital, Hyderabad, AP....Defendant
OS No.1198/2013:
Between:
Smt Lakshmi . D, W/o. Sri Srinivas Reddy.D, Aged 36 years, Occ: Business, R/o. H.No.8-3-167/D/7/2, Kalyan Nagar,
Behind TB Hospital, Hyderabad, AP....Plaintiff
And
<<2 of 36<< OS No.1400/2013 & OS No.1198/2013
Smt Suguna, W/o Dr MM Reddy, Aged 62 years, R/o. Flat No.202, Anand Meadows, Anand Bagh,
Ameerpet, Hyderabad....Defendant
These suits coming on 13.02.2019 before me for final disposal in the presence of M/s P. Subhashan Reddy, Advocate for plaintiff in OS
No.1400/2013 and for the defendant in OS No.1198/2013: and of Sri S. Nagesh
Reddy, Advocate for the defendant in OS No.1400/2013 and for the plaintiff in
OS No.1198/2013: and the matter having been heard and stood over for
consideration till this date, this court delivered the following:
C O M M O N J U D G M E N T
OS No.1400/2013:
This suit is filed on behalf of the plaintiff/landlady against the defendant/tenant for a direction to vacate the suit schedule property and deliver vacant and peaceful possession of the same to the plaintiff, for arrears of rent to a tune of Rs.1,10,000/- for the period covering May, 2013 to September, 2013, for future damages @ Rs.50,000/- per month for illegal occupation of the schedule property from October, 2013 till date of vacation of the same and for costs.
OS No.1198/2013:
This suit is filed on behalf of the plaintiff/tenant for a permanent injunction restraining the defendant/landlady, her agents, servants, henchmen and any other person/s claiming through her from interfering with the peaceful possession and
<<3 of 36<< OS No.1400/2013 & OS No.1198/2013
enjoyment of the plaintiff over the suit schedule property without following due process of law and for costs.
2..The averments of the plaint in OS No.1400/2013, in brief, are as follows:
i)The plaintiff/landlady is the owner of the suit schedule property bearing
No.8-3-167/D/7/2, situated at Kalyan Nagar, behind TB Hospital, Opp to Central
Bank, Hyderabad (which is within the territorial jurisdiction of this court) and the defendant had taken the ground floor of the said premises on rent and entered into a rental agreement with the plaintiff on 01.05.2013 and the tenancy is for 11 months commencing from 01.05.2013. The monthly rent payable was
Rs.22,000/-. However, from the inception of the tenancy, the defendant started defaulting in payment of rents and has not been paying the rents inspite of requests and demands made by the plaintiff. The plaintiff also found that the defendant has illegally encroached upon the first floor of the suit schedule premises which was not leased out to her and made alterations therein without the knowledge and consent of the plaintiff and the said acts are illegal and violative of the terms and conditions of the above referred lease agreement. Hence, the plaintiff had requested the defendant to vacate the suit schedule premises and handover vacant and peaceful possession of the same, which the defendant failed to do so. On the other hand the defendant had filed a suit in OS No.1198/2013 on
<<4 of 36<< OS No.1400/2013 & OS No.1198/2013
the file of this court against the plaintiff for a perpetual injunction for making false allegations as a counter blast with an intention to browbeat the plaintiff and further coerce and pressurize her to withdraw her demand for vacation of the property by the defendant and the said suit is being contested.
ii)In the said circumstances, having been vexed with the attitude of the defendant, the plaintiff was constrained to issue a legal notice dt.05.09.2013 under
Section 106 of the Transfer of Property Act, calling upon the defendant to vacate the suit schedule premises and handover vacant and peaceful possession of the same within the 15 days from the receipt of the same after paying the arrears, failing which proper and necessary steps as per law would ensure. The said notice was received by the defendant and a reply notice dt.21.09.2013 was got issued with all vague and untenable allegations instead of complying with the request of the plaintiff. The facts of the case clearly go to show that the defendant has intentionally and willfully been avoiding to vacate the schedule property with a malafidy intention and ulterior motive to cause wrongful loss to the plaintiff. The plaintiff is at liberty to demand the defendant to vacate the suit schedule property, being the lawful owner of the said property and that too when the defendant had committed violations of the terms of the agreement which was for a period of 11
<<5 of 36<< OS No.1400/2013 & OS No.1198/2013
months. The defendant having knowledge that she has to vacate the schedule property, has devised some methods to prevent the plaintiff from seeking her eviction from the same. Due to non vacation of the defendant, the plaintiff has been put to inconvenience and hardship as the defendant has committed violation of the terms of the above agreement and continuing to be in illegal occupation of the schedule premises.
iii)On one occasion, when the plaintiff had requested the defendant to vacate the schedule property, the defendant had threatened the plaintiff with dire consequences, if the plaintiff insists upon the defendant to vacate the same. The approach of the plaintiff to the Police seeking help to solve the above problem, proved futile as the Police did not take action on the ground that the said dispute is of civil in nature. Having no option, the plaintiff approached this court for the reliefs claimed as mentioned above. Hence, the suit.
3..A written statement is filed on behalf of the defendant/tenant mainly contending as follows:
The suit is not maintainable and the plaintiff has not approached the court with clean hands. There are suppression of true and real facts with ulterior motives
<<6 of 36<< OS No.1400/2013 & OS No.1198/2013
to suit the design of the plaintiff and to cause wrongful loss to the defendant. The plaintiff is not entitled for the suit claims. The relationship of the plaintiff and the defendant as that of landlady and the tenant is true in respect of the premises bearing No.8.3-167/D/2. The plaintiff deliberately and intentionally mentioned that the ground floor of the premises was obtained on lease and as a matter of fact the schedule property itself is consisting of ground floor since primarily there is no first floor on the said premises except a semi-finished slab, not of residential use, which fact will also be crystal clear as per the schedule of property mentioned in rental agreement dt.01.05.2013 filed by the plaintiff before this court. Though, the ownership is not disputed, in regard to the existence of the first floor, the same is denied and the plaintiff is put to strict proof. It is specifically denied that the defendant is committing default in payment of rents right from the inception of tenancy and that there were several requests and that the defendant never bothered to pay the rents to the plaintiff. It is also specifically denied that the defendant illegally encroached upon the first floor and made alterations therein without her knowledge and consent of the plaintiff and that the defendant violated the terms and conditions of the lease agreement. All the said allegations are denied in toto. It is also denied that the plaintiff requested the defendant to vacate the suit schedule property on the allegation that the terms and conditions of the rental agreement are
<<7 of 36<< OS No.1400/2013 & OS No.1198/2013
violated and that the defendant refused to do so. It is further denied that the defendant filed a suit in OS No.1198/2013 for injunction on concocted and created allegations. Similarly, the the legal notice dt.05.09.2013 and its contents are also denied and the notice contents are designed with the sole intention to gain sympathy. The rent was received by the plaintiff by way of cash for the months of
May, June and July, 2013 and when the defendant requested to pass a receipt for the same, the plaintiff refused for it by saying that already rental agreement is executed and as such there is no need for rental receipts. Further, inspite of receiving the rents, all of a sudden, the plaintiff, her husband along with few others tried to forcefully evict the defendant from the suit schedule property on 23.08.2013 and therefore to protect the rights, the defendant was constrained to approach this court by filing a suit in OS No.1198/2013, much prior to filing of the present suit. The plaintiff was very well aware of the filing of the said suit long back and has deliberately and intentionally waited till September, 2013 and got issued the legal notice dt.05.09.2013 solely to get pecuniary jurisdiction. The said allegations are made by the plaintiff taking undue advantage of non execution of the rental receipts and violated terms and conditions of the agreement without any basis. The legal notice was got issued with untenable grounds and the defendant got issued a suitable reply to the same and the plaintiff is put to strict proof of the
<<8 of 36<< OS No.1400/2013 & OS No.1198/2013
said allegations. The plaintiff received the rents pertaining to the months of May,
June and July, 2013 and kept silent and further retained three months advance rent of Rs.66,000/- as mentioned in the rental agreement clause No.5. Instead of issuing a notice invoking clause No.12 of the rental agreement, i.e., two months prior notice, the plaintiff deliberately got issued a legal notice under Section 106 of TP Act on 05.09.2013 taking undue advantage of non execution of the receipts by her. In the said circumstances, the defendant filed the suit in OS No.1198/2013.
Further, the defendant was given possession by virtue of the rental agreement dt.01.05.2013 by the plaintiff herself. The claim for damages and for illegal occupation is not correct. After filing of the said injunction suit, the plaintiff deliberately refused to receive the rent for the month of August, 2013 and as such, the defendant asked to furnish the bank account details of the plaintiff in order to enable the defendant to deposit the rent for the month of August, 2013 on issuance of the notice dt.05.09.2013 and no reply was got issued to the said notice for reasons best known to the plaintiff. The defendant also filed a petition in OS
No.1198/2013 seeking permission to deposit the rents for the month of August, 2013. It is also false to say that the defendant is liable to pay the arrears of rent to a tune of Rs.1,10,000/- @ Rs.22,000/- per month from May, 2013 to September, 2013. It is false to say that the plaintiff is entitled for the alleged rents and that the
<<9 of 36<< OS No.1400/2013 & OS No.1198/2013
defendant is an illegal occupier. The defendant is also not liable for any damages @ Rs.50,000/- p.m to the plaintiff. There is no cause of action for the plaintiff to file the present suit. It is therefore prayed for dismissal of the suit with costs.
4.. The averments of the plaint in OS No.1198/2013, in brief, are as follows:
The plaintiff is the tenant in respect of the premises bearing No.8-3-167/D/7/2 situated at Kalyan Nagar, behind TB Hospital, Opp to Central Bank, Hyderabad, which is herein after referred to as suit schedule property, since May, 2013 and the defendant is the owner of the suit schedule property. The said property consisting of ground floor was let out to the plaintiff on lease in the month of May, 2013. A rental agreement was also executed by the defendant on 01.05.2013 with a monthly rent of Rs.22,000/- excluding electricity bill and further the plaintiff also paid an amount of Rs.66,000/-, being three months advance towards interest free security to the plaintiff and the rental agreement was also signed by the plaintiff and defendant's husband as a witness. The plaintiff is paying the rents regularly to the defendant without any default. The defendant and her husband were receiving the rent @ Rs.22,000/- per month from the plaintiff by way of cash regularly and inspite of the rent paid by the plaintiff regularly, all of a sudden demanded the plaintiff to vacate the suit schedule property without any basis and when the
<<10 of 36<< OS No.1400/2013 & OS No.1198/2013
plaintiff brought to the notice of the defendant that already the rental agreement was executed by her and as per clause No.12 of the said agreement, it is obligatory on the part of either the plaintiff or the defendant to give two months prior notice
before terminating the rental agreement and shown her inability to vacate the same
within the short period from the date of agreement i.e., 01.05.2013 and as such the demand to vacate is without following due process of law.
ii)Further, on 23.08.2013, the defendant along with her husband and their men came to the suit schedule property and tried to evict the plaintiff from the same by taking law into their hands. The plaintiff resisted their interference with the help of her husband and well wishers. At the time the defendant along with her men left the suit schedule property by threatening the plaintiff with dire consequences and that they would come at any time with large force to evict the plaintiff from the said property. Hence, without any order of the court, the plaintiff is not in a position to safeguard her possession over the suit property. Documents are filed to establish the possession of the plaintiff as a tenant. The approach of the plaintiff to
Police regarding the threat mentioned above proved futile as the matter is pertaining to civil in nature. Having no alternative remedy, the plaintiff approached this court and hence the suit.
<<11 of 36<< OS No.1400/2013 & OS No.1198/2013
5.. A written statement is filed on behalf of the defendant in OS No.1198/2013, mainly contending as follows:
The suit is not maintainable. The allegations made in the plaint against the defendant are false. It is true that the plaintiff is the tenant in the suit schedule property which belongs to the defendant. However, only ground floor portion of the said premises was leased out to the plaintiff. It is true that the plaintiff had entered into a lease agreement with the defendant in respect of the suit schedule property for a monthly rent of Rs.22,000/- and he had also paid three months rent towards interest free security deposit. It is denied that the rents were paid regularly by the defendant without default. The plaintiff started defaulting in payment of rents inspite of repeated requests and demands made by the defendant and has become a chronic defaulter. Apart from the same, the plaintiff started encroaching upon the first floor of the schedule premises illegally and making alterations therein, though the same was not leased out, without the knowledge of the defendant, taking advantage of the fact that the defendant is an absentee landlady in the said locality. Due to the said illegal action and for non payment of rents, the defendant started demanding upon the plaintiff to vacate the premises. The allegations are made by the plaintiff for the purpose of obtaining injunction orders intentionally. The defendant never interfered with the possession of the plaintiff
<<12 of 36<< OS No.1400/2013 & OS No.1198/2013
except requesting the plaintiff to vacate the premises at the earliest for the continuous default in payment of rent committed by the plaintiff and also for encroaching upon the first floor of the schedule premises illegally. The documents filed on behalf of the plaintiff do not create any cause of action. No injunction can be granted to the plaintiff in the above circumstances. The defendant has also issued a notice to the plaintiff under Section 106 of the TP Act calling upon him to vacate the premises after paying the rents and for damages. The plaintiff never approached the Police as there was no cause of action for her to approach them and the said allegation is false. Instead of the plaintiff vacating the suit schedule tenanted premises, she is trying to occupy the same illegally by suppressing the true and actual facts. There is no cause of action for the suit and the suit is devoid of merits. It is therefore prayed for dismissal of the suit with costs.
6.. On the basis of the above pleadings the following issues are settled in OS
No.1400/2013 for determination of this case:
1. Whether the quit notice dt.05.09.2013 is valid and binding on the defendant?
2. Whether the plaintiff is entitled for vacant possession of
suit schedule property by evicting the defendant?
<<13 of 36<< OS No.1400/2013 & OS No.1198/2013
3. Whether the plaintiff is entitled for Rs.1,10,000/- towards arrears of rent?
4. Whether the plaintiff is entitled for damages as prayed for?
5. To what relief?
7.. On the basis of the above pleadings the following issues are settled in OS
No.1198/2013 for determination of this case:
1. Whether the plaintiff is entitled for grant of permanent injunction as prayed for?
2. To what relief?
8..The suit in OS No.1400/2013 is a comprehensive one when compared to the other suit in OS No.1198/2013. Further, as per the orders dt.22.07.2014 passed in
OS No.1400/2013 at the instance of the plaintiff therein, the suit in OS
No.1198/2013 is clubbed with OS No.1400/2013 and a joint trial is accordingly conducted and the evidences are recorded in OS No.1400/2013. Since the parties to both the suits are common, they are referred to as arrayed in OS No.1400/2013 in this judgment.
<<14 of 36<< OS No.1400/2013 & OS No.1198/2013
9..Common evidence is recorded for both the suits in OS No.1400/2013. On behalf of the plaintiff/landlady, PW1 is examined and Exs.A1 to A4 are marked.
On behalf of the defendant/tenant, DW1 to DW4 are examined and Exs.B1 to B6 are marked.
10..Heard the common arguments advanced on behalf of the learned counsels for the plaintiff and defendant.
11..Issue No.1 in OS No.1400/2013:
PW1 is the plaintiff and DW1 is the defendant. DW2 is the husband of the defendant and DW3 and DW4 are the supporting witnesses to the defendant.
12..In this case there is no dispute regarding the jural relationship of landlady and tenancy between the plaintiff and defendant. It is also an undisputed fact that both the plaintiff and defendant entered into a rental agreement dt.01.05.2013 containing the terms and conditions of the lease. The period of tenancy is 11 months commencing from 01.05.2013 and the rent payable is Rs.22,000/- p.m. It is also admitted by the plaintiff in her evidence that the defendant deposited an advance money of Rs.66,000/- towards security to the plaintiff for the tenancy
<<15 of 36<< OS No.1400/2013 & OS No.1198/2013
property, which is an independent property. The further undisputed facts of the case are that, at the outset it is the defendant who filed the suit in OS No.1198/2013 against the plaintiff for a permanent injunction to safeguard her tenancy rights in respect of the threat mentioned therein on 06.08.2013. Subsequently, Ex.A1 quit notice dt.05.09.2013 was got issued on behalf of the plaintiff to the defendant, which is a pre-suit notice for filing OS No.1400/2013. Ex.A4 is the reply notice dt.21.09.2013 got issued on behalf of the defendant for Ex.A1 quit notice. Later, the suit in OS No.1400/2013 is filed on 04.10.2013.
13..PW1 deposed to all the averments of the plaint and the defence in OS
No.1198/2013 and contents of Exs.A1 to A4. It is the contention on behalf of the defendant that from the inception of the litigation i.e., from the filing of the suit in
OS No.1198/2013, i.e., as per clause No.12 of the undisputed rental agreement, it
is obligatory on the part of either the plaintiff or defendant to give two months prior notice before terminating the tenancy and that no such notice was given and that therefore Ex.A1 notice dt.05.09.2013 is bad in law. It may be noted that inspite of the earliest document, which came to into being through the plaint in OS
No.1198/2013 mentioning the requirements of two months prior notice for vacating the schedule property, no such notice was given. Though, the plaintiff
<<16 of 36<< OS No.1400/2013 & OS No.1198/2013
referred to some of the terms and conditions of the rental agreement, the complete terms and conditions are neither pleaded in OS No.1400/2013 nor in the defence in
OS No.1198/2013. When it is categorically contended that two months prior
notice for evicting a defaulting tenant like the defendant is made mandatory interse parties through a rental agreement, the plaintiff is under the obligation to prove that a valid quit notice was issued in the form of Ex.A1 as per Section 106 of the
TP Act. It is the contention that there is no valid quit notice in this case and that the plaintiff has to prove that there is consecutive default in payment of rent for three months and that there is two months prior notice for eviction of the defendant. In the present issue, the limited scope of discussion is as to whether the two months prior notice is a requirement for evicting the tenant from the plaintiff and whether the same is agreed upon in the rental agreement dt.01.05.2013. It is also necessary to decide as to whether the notice under Section 106 of TP Act issued under Ex.A1 dt.05.09.2013 is applicable and valid to the facts of the case on hand or not. At the outset, it is to be mentioned that both the plaintiff and defendant are relying upon the rental agreement dt.01.05.2013. The said rental agreement is not marked, but the fact remains that the entire pleadings on behalf of both sides rely upon the said document. As it is undisputedly executed between the plaintiff and defendant for a period of 11 months w.e.f. 01.05.2013, one thing which can be made out is that the
<<17 of 36<< OS No.1400/2013 & OS No.1198/2013
period covering the said rental agreement is from 01.05.2013 to 31.03.2014.
Further, in this case the quit notice under Ex.A1 was issued on 05.09.2013 and the reply under Ex.A5 is dt.21.09.2013. The permanent injunction suit which is filed first in point of time on behalf of the defendant is dt.06.08.2013 and the eviction in
OS No.1400/2013 is filed on 04.10.2013. Therefore, evidently not only the quit
notice under Ex.A1, but also the eviction suit is filed well within the period covering the said undisputed rental agreement.
14..As per the specific pleading of the defendant in OS No.1198/2013 and the defence of the defendant in OS No.1400/2013, the quit notice is not valid and that clause No.12 covers the subject matter regarding issuance of the said notice. As per the arguments advanced on behalf of the defendant and the evidence of DW1 in the above suits, the plaintiff is under the obligation to issue two months prior notice for proceeding to evict the defendant from the suit schedule tenanted premises. It may be noted that the plaintiff is silent regarding the contents of clause
No.12 in the said agreement of sale. The specific pleading and evidence of the defendant who deposed as DW1 regarding clause No.12 and also regarding the requirement to issue two months prior notice are not challenged on behalf of the plaintiff. Infact, there is no denial regarding the said clause and the requirement of
<<18 of 36<< OS No.1400/2013 & OS No.1198/2013
two months notice in the written statement filed in OS No.1198/2013 and the pleadings and evidence of the plaintiff in OS No.1400/2013 are also silent regarding the same. It is may be noted that there is specific evidence on behalf of the defendant that the husband of the defendant, who is DW2 and the husband of the plaintiff are the witnesses to the said rental agreement. For reasons unexplained, the defendant did not examine her husband even to deny regarding clause No.12 and also the contents pertaining to the same. Further, even DW2 was not cross examined regarding the two months prior notice clause which is pleaded and deposed by the defendant in both the suits. Therefore, viewed at from any angle, the plaintiff neither pleaded nor challenged the defence of the defendant regarding one of the terms and conditions of the rental agreement, wherein it is consistently contented that two months prior notice for launching eviction proceedings is mandatory when the rental agreement period is in force. Evidently,
Section 106 of the TP Act does not come into play in the facts and circumstances of the case, when the parties to the suit are proved to have entered into a rental agreement and when they have agreed for two months prior notice to vacate the tenant. Section 106 of TP Act is applicable only when there is nothing contra to the provisions of the said section. Further, in the facts and circumstances of the case it appears that there is a legal burden on the plaintiff to prove that Section 106 of TP
<<19 of 36<< OS No.1400/2013 & OS No.1198/2013
Act is applicable without issuing two months prior notice to the defendant for eviction etc., 15..The non marking of the document also assumes importance to decide the present issue. Much water has flown into the record pertaining to the non filing of the original rental agreement dt.01.05.2013 which was undisputedly entered into between the plaintiff and the defendant. A perusal of the record shows that the plaintiff and the defendant are throwing the blame against each other regarding the custody of the original document. The fact remains that the original document has not been filed into court by either parties. However, both the parties to the suit have filed a xerox copy of the said rental agreement and there is no dispute regarding the identity of the said copies and regarding the entries therein. As a first step, the defendant filed IA No.77/2016 in OS No.1400/2013 directing the plaintiff to produce the original of the said rental agreement which is in her possession. This court dismissed the said petition as per orders dt.28.03.2016. As against the said orders the defendant preferred CRP No.2250/2016 on the file of our Hon'ble High Court and the same was also dismissed as per its orders dt.14.08.2016. However, liberty was given to the defendant to prefer to file a petition under Order XI Rule 14 of CPC and therefore the defendant filed IA
<<20 of 36<< OS No.1400/2013 & OS No.1198/2013
No.311/2016 under the said provision of law, but the same was also dismissed.
Subsequently, the defendant filed IA No.92/2017 in OS No.1400/2013 to mark the xerox copy of the undisputed rental agreement and this court also allowed the said petition to be received as secondary evidence subject to proof and relevancy of the contents of the document. Later, the defendant filed a petition in IA No.584/2018 to recall PW1 for the purpose of confronting the said document to the plaintiff/PW1, but the learned counsel for the plaintiff objected for recalling PW1 and also argued that the said document is a compulsory registrable document and that as the document is unregistered and unstamped properly, the said petition was dismissed. It may be noted that, w.e.f. 01.04.1999, every agreement is made a compulsory registrable document and it applies even to a rental agreement with 11 month rental period also. Hence, evidently it is the defendant, who made hectic efforts through out the pendency of the two cases to somehow see that the xerox copy of the undisputed rental agreement which is very much filed by the plaintiff herself in OS No.1400/2013 is marked, but the plaintiff did not allow the defendant to go through the same at every stage of the case.
16..It may be noted that, the case of the plaintiff in OS No.1400/2013 and also through Ex.A1 legal notice is based on the terms and conditions of the said rental
<<21 of 36<< OS No.1400/2013 & OS No.1198/2013
agreement only. The plaintiff's case is that as per the rental agreement, the defendant is liable to be evicted through a notice under Section 106 of TP Act. The same is not only denied on behalf of the defendant, but it is specifically contended that two months prior notice is the understanding and one of the terms and conditions of the said rental agreement within the period covered by the said agreement. In the said circumstances, the plaintiff is under the obligation to prove that eviction suit can be filed by issuing Section 106 of the TP Act, wherein the plaintiff has given only 15 days time for evicting the defendant. In the circumstances, the plaintiff has not established that issuance of Section 106 Notice is applicable to the facts of the case and further he failed to disprove the contention of the defendant that two months prior notice is mandatory for eviction. For reasons unexplained, the plaintiff failed to plead and depose regarding clause
No.12 and its contents. At this juncture, it is necessary to mention that when DW1 as defendant deposed about clause No.12 and the requirement of issuance of two months prior notice for filing the suit in OS No.1400/2013, DW1 was not cross examined at all on this aspect. Therefore, as per the case law reported in Yallapi
Rajamma @ Sarojanamma Vs Paditham Narayana Rao and others, vide
2018 (1) ALT 251, our Hon'ble High Court held that when part of the chief examination is not touched upon the course of cross examination, as per settled
<<22 of 36<< OS No.1400/2013 & OS No.1198/2013
law it is to be taken as admitted. Hence, an adverse inference under Section 114
(g) of the Indian Evidence Act can be drawn against the plaintiff in this aspect.
Therefore, all the above observations go to show that two months prior notice is required for evicting the defendant from the suit schedule property in view of the specific and unchallenged pleading and evidence of the defendant in both the suits.
Further, not even a suggestion is also given to DW1 in her evidence denying the requirement for issuing a two months prior notice to file the present suit. Hence, the plaintiff is not proved to be at liberty to issue a notice under Section 106 of TP
Act since Ex.A1 dt.05.09.2013 did not provide sufficient time for the defendant to vacate the suit schedule property and further the suit in OS No.1400/2013 is also proved to be file well within the two months mandatory period, since filed on 04.10.2013. The legal burden is not at all satisfied on behalf of the plaintiff in issuing the notice under Section 106 of TP Act.
17..Another aspect which is material for consideration is that the suit schedule property description in OS No.1198/2013 and OS No.1400/2013 are not in accordance with each other. It is no doubt true that the building in both the suits is one and the same. However, the schedule in OS No.1198/2013 starts with the following words:
<<23 of 36<< OS No.1400/2013 & OS No.1198/2013
All that part and parcel of residential house bearing No.8-3-167/D/7/2� admeasuring 500 Sq.yards...”
Whereas the schedule in OS No.1400/2013 starts with the following words:
All that ground floor of residential house bearing No.8-3-167/D/7/2....�”
In this case the dispute is regarding the first floor of the subject house. The admitted and undisputed facts of the case are that there is a semi-finished first floor. As per the case of the plaintiff only the ground floor is given for rent, but as per the defence the rental agreement schedule shows that all that part and parcel of the residential house was given for rent. Therefore, evidently the suit schedule tenanted premises mentioned in OS No.1400/2013 from which premises the defendant is sought to be evicted is to be established as true and correct. The plaintiff cannot blow hot and cold in the same pipe. He has to establish that the schedule in the suit is in accordance with the undisputed rental agreement schedule. It is not the case of the plaintiff that the rental agreement does not contain any schedule and that the schedule given by him in the plaint in OS
No.1400/2013 is the same as in the rental agreement. Hence, non filing of the rental agreement is adverse to the case of the plaintiff. When the schedule is proved to be not based on an undisputed document, issuing quit notice basing on the said rental agreement and showing a different schedule in the eviction suit in
OS No.1400/2013 is a material defect, which is taken into consideration. It is not
<<24 of 36<< OS No.1400/2013 & OS No.1198/2013
out of place to mention that while disposing of the petition in IA No.584/2018, this court has recorded the conceeded arguments on behalf of the plaintiff that the terms and conditions and the schedule in the rental agreement are not disputed and after recording the said arguments, this court dismissed the petition as per its order dt.22.01.2019 mentioning that no purpose would be served to recall PW1 in the light of the said conceeding argument on behalf of the defendant to cross examine regarding the undisputed and unmarked rental agreement. Another most important aspect which needs to be considered in the facts and circumstances of the case is that the case of the plaintiff shall stand or fall on its own legs and the plaintiff cannot depend upon the weakness in the defence. When the plaintiff relied upon her case on the rental agreement dt.01.05.2013 and more particularly by time and again repeating that she based her case on the terms and conditions of the said agreement, non filing of the agreement itself is self destructive. In the said circumstances, irrespective of the defects in the defence and evidence of the defendants, the plaintiff is non suited and the eviction suit is accordingly not standing to the test of scrutiny according to law. It is not out of place to mention that the plaintiff utterly failed to establish that the defendant violated the terms and conditions of the rental agreement as pleaded by her in the absence of marking the said rental agreement. Therefore, the quit notice dt.05.09.2013 is not valid and
<<25 of 36<< OS No.1400/2013 & OS No.1198/2013
binding on the defendant. Issue No.1 is accordingly answered in favour of the defendant and against the plaintiff.
18..Issue No.3 in OS No.1400/2013:
The plaintiff is claiming arrears of rent for a period of five months covering from May, 2013 to September, 2013 @ Rs.22,000/- p.m., on the ground that the said rent was not paid by the defendant. There is no dispute regarding the quantum of rent for the suit schedule property which is Rs.22,000/- p.m. The plaintiff has not pleaded in the plaint as to what is the date of payment of the rent and evidently there is no procedure of issuing rental receipts when rent was paid. The learned counsel for the defendant argued that as per clause No.4 of the undisputed rental agreement, there was an understanding to pay the rent either by way of cash or cheque and that the rent for the period covering May, June and July, 2013 was paid in cash and that as per the reply notice under Ex.A5 and the pleadings in OS
No.1198/2013, the plaintiff denied to issue a rental receipt for the above period, when rent was paid in cash on the ground that already a rental agreement was executed by the defendant. There is no pleading and evidence on behalf of the plaintiff to show as to in what manner and mode the rent is to be paid by the defendant. When it is specifically pleaded and deposed that the rent was paid based
<<26 of 36<< OS No.1400/2013 & OS No.1198/2013
on the terms and conditions of the undisputed rental agreement dt.01.05.2013 and when the said document was objected to be marked by the plaintiff, the fact remains that this court has to accept that there is an option for the defendant to pay the rent for the suit schedule property either by way of cash or cheque. It is the specific defence and evidence of DW1 that the rent was paid regularly upto July, 2013 and that after filing of OS No.1198/2013, the plaintiff refused to receive the rent for August, 2013. This fact can be seen from Ex.B5 notice dt.05.09.2013. In this case, the plaintiff simply denied that the rent was not paid for three months. It is not out of place to mention that three months continuous default in payment of rent leads to issuance of two months prior notice for filing eviction suit and that it is one of the terms and conditions of the rental agreement. In the absence of non filing of the rental agreement by the plaintiff, the said defence is also to be accepted. When the rents were said to be paid in cash it has to be decided with reference to the conduct of both the parties to the payment transactions.
19..Regarding the conduct of the plaintiff, it can be seen that the plaintiff was silent regarding the receipt of three months advance rent as security from the defendant at the time of inception of tenancy as seen from the plaint, though it was admitted by the plaintiff at a later point of time. The fact remains that the defendant
<<27 of 36<< OS No.1400/2013 & OS No.1198/2013
paid Rs.66,000/- towards advance security amount, which is now lying with the plaintiff free of interest. Nothing prevented the plaintiff from pleading the said aspect which is specifically referred to in the defence and evidence of DW1. It is further specifically mentioned that the clause pertaining to the advance security payment is clause No.5. There is no denial on behalf of the plaintiff regarding the same either in her pleading or in her evidence. Another aspect which can be considered is that the plaintiff failed to establish that the suit schedule property is correctly mentioned in the plaint as it is already proved that the schedule in both the suits are differing. Yet another aspect for consideration at this juncture is that the plaintiff alleged that the defendant made unauthorized construction on the first floor and that he encroached upon the same and further constructed tin sheet shed upon the same. PW1 in her cross examination, admittedly did not file any proof in the form of photographs or otherwise to show that the suit schedule property was altered by the plaintiff. No document what so ever is filed to show that the plaintiff made alterations to the tenanted premises on the first floor. Therefore, one of the reasons for issuing quit notice regarding the defendant making alterations to the first floor and surrounding it by laying constructions as referred to above is proved to be false. Moreover, there is nothing on record to show that the defendant is running authorized business or any business to that effect and the available
<<28 of 36<< OS No.1400/2013 & OS No.1198/2013
evidence on record only shows that the defendant is doing Saree Printing works in her house. Admittedly, there is no trade license. In the said circumstances, the plaintiff failed to establish that the defendant is doing commercial business after taking the suit schedule property for residential purpose. Doing Saree Printing
Works in the house can by no means said that it is a commercial business as there is no sufficient documentation to establish the same. Taking into consideration, all the above aspects, it can be said that the plaintiff has not come to court with correct and required facts and her case is deviod of merits. Yet another aspect which can be taken into consideration is that PW1 admitted in her evidence that she only demanded the rents orally and not by issuing any notice. Therefore, in all probabilities and possibilities of the case as discussed above and taking into consideration the conduct of the plaintiff, it can be said that the rents for the period covering may, June and July,2013 are paid to the plaintiff and the evidence that the plaintiff is taking undue advantage of non issuance of rental receipts can be accepted. This court is of such an opinion since there is no credibility in the oral evidence of PW1 is regarding the alleged non payment of three months rents.
20..To further establish regarding the payment of rents, the defendant has initially issued Ex.B5 notice dt.05.09.2013 requesting the plaintiff to furnish his
<<29 of 36<< OS No.1400/2013 & OS No.1198/2013
bank account for crediting the rent every month since she refused to receive the rent when offered for August, 2013. As per Ex.B6 the plaintiff personally received the said notice, but failed to issue any reply. Subsequently, the defendant filed IA
No.1206/2013 to permit her to deposit the rents into the account of the plaintiff and on contest this court is allowed the said petition to deposit the rents w.e.f August, 2013. Several memos and bank payment receipts are filed into court on behalf of the defendant to show that the rents were deposited for the suit schedule property by the defendant into the account of the plaintiff as per the orders passed by the court in IA No.1206/2013. It may be noted that when a petition in IA No.303/2017 was filed on behalf of the plaintiff under Section 15 A (2) R/w 151 of CPC for payment of balance of rents, the said petition was dismissed as it was represented on behalf of the plaintiff that there are no arrears of rent as per order dt.21.01.2019.
In this case, the defendant also filed the memo covering the rent for the month of
January, 2019 vide SR No.368/2019 dt.08.02.2019 with bank deposit receipt.
Further, the defendant also filed two more memos with bank deposit receipts, wherein an amount of Rs.22,000/- was paid towards the running month i.e.,
February, 2013 as advance rent which is due to be paid in March, 2013.
Furthermore, the plaintiff also filed yet another memo in SR No.378/2019 dt.11.02.2019 wherein it is mentioned that the defendant by way of caution
<<30 of 36<< OS No.1400/2013 & OS No.1198/2013
deposited two months rent for the period covering May and June ,2013. It is mentioned in the said memo that though the rent for the month of May and June, 2013 was already paid as per the defence of the defendant, the same was again deposited by way of caution and that if for any reason this court comes to a conclusion that there are arrears of rent for two months, the same can be treated as paid by virtue of the said bank receipt filed in SR No.378/2019 and further if the court comes a conclusion that there are no arrears of rent, the said amount of
Rs.44,000/- is to be treated as additional security advance amount. It may also be noted that, no objections were reported for the above referred three memos and specific orders were also passed on the same. Taking into consideration, all the above facts and in view of the observations and discussions made it is established by the defendant that there are no arrears of rent as claimed in the suit and further in the said circumstances the deposit of Rs.44,000/- dt.11.02.2019 in SR
No.378/2019 is to be taken as additional advance security amount free of interest and therefore, the earlier paid advance security amount of Rs.66,000/- is also to be taken into consideration, making the total amount paid towards advance security by the defendant to the plaintiff as Rs.1,10,000/-. Yet another aspect which is worth considering is that the plaintiff has not filed her statement of account to establish that no rents were deposited by the defendant and that there are arrears of
<<31 of 36<< OS No.1400/2013 & OS No.1198/2013
rent. In the light of the above observations, the defendant proved that there are no arrears of rent and the plaintiff is not entitled for Rs.1,10,000/- towards the said claim. On the other hand, the plaintiff is holding an advance security amount of
Rs.66,000/- and additional advance security amount of Rs.44,000/-, making it
Rs.1,10,000/- free of interest and the same shall be taken into consideration and deducted at the time of defendant vacating the premises ultimately. Issue No.3 is accordingly answered in favour of the defendant and against the plaintiff.
21..Issue No.4 in OS No.1400/2013:
Since the quit notice dt.05.09.2013 is not proved to be valid and binding and as the plaintiff is not entitled to vacate the defendant from the possession of the suit schedule property as a tenant, the question of the defendant paying damages @
Rs.50,000/- p.m. for the alleged use and occupation of the same does not arise.
Moreover, there is no evidence on record to show as to on what basis damages at the said rate is claimed. Hence, the issue No.4 is also answered in faovur of the defendant and against the plaintiff.
22..Issue No.1 in OS No.1198/2013 & Issue No.2 in OS No.1400/2013:
One of the undisputed facts of the case is that the defendant is in possession
<<32 of 36<< OS No.1400/2013 & OS No.1198/2013
and enjoyment of the suit schedule property as a tenant from 01.05.2013 onwards and the said possession is continuing even as on today. The case of the plaintiff that the defendant's possession to the suit schedule property has become illegal and that he is entitled for damages is also not proved in view of the observations and discussions made while deciding issue No.4 in OS No.1400/2013. To further establish that the defendant is in possession of the suit schedule property from
May, 2013 onwards till filing of the suit in OS No.1198/2013, the defendant filed
Exs.B2 to B4 documents, i.e., phone bill, water bill, electricity bills and the HP
Gas connection issued to the defendant pertaining to the suit schedule property covering the period from May, 2013 to August, 2013. The said documents are not disputed. Therefore, it is established that the plaintiff is in authorized possession of the suit schedule property as a tenant. To further substantiate the possession of the defendant, DW3 and DW4 are examined and they deposed about the jural relationship of landlady and tenancy between plaintiff and defendant. Nothing material was elicited from their evidences also on behalf of the plaintiff.
23..It is the specific pleading and evidence of DW1 in OS No.1198/2013, that on 23.08.2013, the plaintiff, her husband and their men came to the suit schedule property and made an attempt to forcibly vacate the defendant from the suit
<<33 of 36<< OS No.1400/2013 & OS No.1198/2013
schedule property and that the defendant resisted the said threat. It is further pleaded and deposed that they also left the schedule property and further threatened to come back again and dispossess her. Inspite of the specific pleading and evidence of DW1 with respect to the same, the said evidence goes unchallenged. Moreover, it is established that there are no arrears of rent and that there is no valid quit notice. Therefore, the defendant proved that he is continuing to be in possession as a tenant. Hence, the plaintiff proved that he has a prima facie case to obtain injunction as a tenant since he is in possession of the suit schedule property. If the plaintiff is allowed to threaten the defendant and dispossess him from the suit schedule property, the defendant will suffer irreparable loss. On the other hand, the sufferance to the defendant would be more than compared to the plaintiff. Hence, the balance of convenience also lies in favour of the plaintiff. The cardinal principals applicable for grant of a temporary injunction can also be made applicable in the facts and circumstances of the case for deciding a permanent injunction suit as laid down in a case law reported in Potte Ramanna and another Vs Mukka Rajanna and others, vide 2006 (1) ALD 162 wherein our
Hon'ble High Court held that �The relief of injunction is discretionary. Even if the
plaintiff proves his possession in a given case, the court in its discretion can deny the relief. In the event of the Court accepting the case of the plaintiff, the Court has
<<34 of 36<< OS No.1400/2013 & OS No.1198/2013
to apply the principles applicable to interlocutory are equally applicable even in a suit for permanent injunctions.” Hence, the defendant/tenant, who is the plaintiff in OS No.1198/2013 is entitled for a permanent injunction against the defendant, her agents, servants, henchmen and any person/s claiming through them in respect of the suit schedule property as prayed. Issue No.1 in OS No.1198/2013 is also accordingly answered in favour of the defendant/tenant, who is the plaintiff in OS
No.1198/2013 and against the plaintiff/landlord, who is the defendant in OS
No.1198/2013.
24..Regarding no costs:
Taking into consideration that there is jural relationship between the plaintiff and defendant and as the suits are filed within the undisputed rental agreement record, there shall be no order as to costs.
25..Issue No.5 in OS No.1400/2013:
In the result, the suit is dismissed without costs.
26..Issue No.2 in OS No.1198/2013:
In the result, the suit is decreed without costs. A permanent injunction is
<<35 of 36<< OS No.1400/2013 & OS No.1198/2013
granted restraining the defendant/landlady, her agents, servants, henchmen and any other person/s claiming through her from interfering with the peaceful possession and enjoyment of the plaintiff/tenant over the suit schedule property except through due process of law.
Dictated to the Personal Assistant, transcribed and typed by her, corrected
and pronounced by me in the Open Court this the 16 th day of February, 2019.
II SENIOR CIVIL JUDGE,
CITY CIVIL COURT: HYDERABAD.
APPENDIX OF EVIDENCE:
Witnesses examined:
For plaintiff/s: For defendant/s:
PW1: Smt Suguna DW1: Smt Lakshmi. D DW2: D. Srinivas Reddy DW3: Raju DW4: Rajala China Appala Naidu
Documents marked on behalf of the plaintiff/s:
Ex.A1:Office copy of legal notice of plaintiff dt.05.09.2013
Ex.A2:Postal receipt dt.11.09.2013
Ex.A3:Acknowledgment card dt.12.09.2013
Ex.A4:Reply notice of defendant dt.21.09.2013
<<36 of 36<< OS No.1400/2013 & OS No.1198/2013
Documents marked for defendant/s:
Ex.B1:Original Reliance bill along with receipt issued in the name of plaintiff in respect of plaint schedule property.
Ex.B2:Original bunch of electrical bills for the period between June to August, 2013 along with payment receipts paid by plaintiff in respect of suit property No.5
Ex.B3:Original demand notice issued by HMWS & SB for the period between June to August, 2013 along with payments receipts paid by plaintiff in respect of suit property No.4
Ex.B4:Original HP Gas Deliver receipts in the name of plaintiff in respect of suit schedule property dt.01.07.2013 (2)
Ex.B5:Office copy of legal notice dt.05.09.2013
Ex.B6:acknowledgment
II SENIOR CIVIL JUDGE,
CITY CIVIL COURT: HYDERABAD.