1 //Fair copy//
IN THE COURT OF THE I ADDITIONAL JUNIOR CIVIL JUDGE: MADANAPALLE
Present:- Sri G.Sreenivasa Reddy,
Principal Junior Civil Judge, Madanapalle.
FAC : I Additional Junior Civil Judge, Madanapalle.
Dated, this the 17 th day of September, 2020
O.S.No.164 of 2014
Between:
1. Shaik Dadapeer, S/o late Shaik Rahamathulla, aged about 51 years
2. Shaik Sharmila Begum, W/o S.Dadapeer, aged about 41 years
Plaintiff Nos. 1 and 2 are residing at D.No.11-76 and 11-77, Fort street(Kota
Veedhi), Madanapalle Town , Chittoor District.
3. Shaik Khaja Peer, S/o late Shaik Rahamathulla, aged about 45 years
4. Shaik Ayisha, W/o S.Khajapeer, Aged about 37 years
Plaintiff no.3 and 4 are residing at D.No.14/3, Bhavani Nagar, Rajiv Nagar
Extension, NVR Layout, Kothapalle Panchayath, Madanapalle Town, Chittoor
District.
...Plaintiffs
And
S.Munwar, S/o S.Maqbul, SMB Furnitures, SRS complex, Near M.S.R Movie land,
Madanapalle Town, Chittoor District.
...Defendant
This suit is coming on 09-09-2020 for final hearing before me in the presence of Sri S.Rajendra, Advocate for the plaintiffs and of Sri D.Krishna
Reddy, Advocate for defendant and having heard through blue jeans and after considering the material on record, this Court delivered the following:-
J U D G M E N T
1.This is the suit filed by the plaintiffs against the defendant for direction
(a) to deliver vacant possession of the suit schedule property to the plaintiffs failing which the same may be effected through due process of law (b) to pay the arrears of rent @ Rs.2400-00 (Rupees Two thousand four hundred only) from the month of August, 2013 till the date of filing of the suit totaling Rs.21,600-00 2 (Rupees twenty one thousand six hundred only) and (c) to pay the future rents @
Rs.2400-00 (Rupees Two thousand four hundred only) per month together with an annual increase of rent at 20% p.a. from the date of filing of the suit till the date of vacating the suit schedule premises and to pass such other or further orders as this Court may deem fit and proper in the circumstances of the above case in the interest of justice.
2. The brief averments of the plaint are as follows:-
The 1st plaintiff is the husband of the 2nd plaintiff and the 3rd plaintiff is the husband of the 4th plaintiff, the plaintiffs No. 1 and 3 are the brothers and sons of late Shaik Rahamathulla and Kashmunnisa, the plaintiffs including the father and mother of plaintiffs No. 1 and 3 got purchased the suit schedule property in Sy.No.
238-1, 238-2 and 238-3 situated at Madanapalle Municipal area from its rightful owners namely Gangarapu Venkata Subba Reddy, his wife G.Ushamma and their son G.Venkatramana about three decades ago under various registered sale deeds for valuable sale consideration amounts respectively, the mother of the plaintiffs No.1 and 3 died on 09-12-2005 and their father also died on 10-7-2013, the plaintiffs duly succeeded to the estate of the deceased, previously all the tenants including the defendant used to pay the monthly rents to the father of the plaintiffs no.1 and 3 and after his demise, they continued to pay the plaintiffs no.1 and 3, the father of plaintiffs no.1 and 3 during his life time got constructed as many as 60 shop rooms about 3 decades ago in the extents purchased in the names of all the members of the family which are situated towards eastern side of the Shandi Road locality called as Santha Veedhi and by now most of the shop rooms became old and required reconstruction, further they have decided to remove the existing structures of all shop rooms in Survey numbers referred supra in order to construct a commercial complex afresh therein as per the present day requirements for the purpose of the personal use and occupation of the plaintiffs in order to do their own business, they are devoid of any other source of income 3 or place of business except the property covered under the suit survey numbers, the defendant is doing business in distributing the items like TV stands, steel bereoughs, double cots in the suit schedule shop room under the name and style of “SMB Furniture” and for the previous period, the defendant was paying the rent @ Rs.2,000-00(Rupees two thousand only) per month but the shop fetches rent @
Rs.2,400-00 (Rupees Two thousand four hundred only) per month since it is agreed between the parties that the rent shall be enhanced @ 20 % for every two years, but the defendant has not paid the monthly rent since August, 2013, the plaintiffs are neither educated nor employed but eking out their livelihood by doing petty business in vending house hold provisions by attending weekly shandies in and around Madanapalle and its surrounding villages, the plaintiffs are contemplating to run the business in order to eke out their livelihood in a fixed place i.e., in the suit schedule property and its larger extent by undertaking the constructions afresh, therefore the plaintiffs require the suit schedule property for their personal use and occupation in order to run their own business, in this regard the plaintiffs approached the defendant for several months and requested him to vacate suit schedule property but the defendant is evading to vacate the suit schedule property under one or the other lame pretext, the plaintiffs are in dire necessity to occupy the suit schedule property in order to do the business of their choice, the amenable tenants are ready to vacate their respective premises soon after vacating the premises by a few adamant tenants, in the meantime the defendant is liable to pay the rent to them on par with the day to day escalation of prices and ever increasing cost of living, the suit schedule place has gained greater commercial sanctity in the locality, the plaintiffs No.1 and 3 issued statutory quit notice to the defendant, the defendant has sent the reply notice with false and frivolous grounds and the defendant also filed the suit in
OS.55/2014 on the file of the Prl. Junior Civil Judge, Madanapalle against the
plaintiffs 1 and 3 herein seeking for grant of permanent injunction with false allegations. Hence, the suit.
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3. The brief averments of the written statement are as follows:-
The defendant did not deny that the plaintiffs succeeded to the suit schedule property after the death of the father of the plaintiff no.1 and 3 and the defendant contends that the plaintiffs no.1 and 3 father was landlord to him for the last 20 years, the defendant and the father of plaintiff no.1 and 3 Rahamathulla entered into oral agreement to let out the suit schedule property, the defendant used to pay the monthly rent of Rs.200-00 (Rupees two hundred only) per month and paid advance of Rs.20,000-00 (Rupees twenty thousand only) in those days, subsequently rent was enhanced once in 5 years, his father late Rahamathulla died on 10-7-2013 and the defendant was paying rent of Rs.1600-00 (Rupees one thousand six hundred only) per month regularly without default, after the death of plaintiffs no.1 and 3 father, the plaintiffs no.1 and 3 enhanced rent from
Rs.1,600-00 to Rs.2,000-00 per month to the suit schedule property, the defendant is paying the monthly rent of Rs.2,000-00 (Rupees two thousand only) from 01-08-2013 onwards, he was and is paying the higher rent to plaintiffs no.1 and 3 for suit schedule property as per the norms of the Municipality, the plaint schedule property was originally standing in the name of deceased
S.Rahamathulla, after his demise, the electricity demanded bills of the suit property were issued in the name of the plaintiff no.3 and the defendant is paying the electricity consumption charges for the suit property, the plaintiffs no. 1 and 3 owns shopping complex under the name of “SRS” which is situated on “ MSR” movie land road adjacent to the east of the main road and western side, the said shop consists of 60 shop rooms on either side of the MSR theater road and they are in possession of the 3 shop rooms out of 60, the defendant is eking out his livelihood, his family is depending upon business only and they have no other source of income except running of business in suit schedule property, the defendant invested a sum of Rs.20,000-00 (Rupees twenty thousand only) towards the improvements of the suit schedule property, the plaintiffs no.1 and 3 are insisting to pay more rent for the suit schedule property which is abnormal in 5 the area, he paid monthly rent of Rs.2,000-00(Rupees two thousand only) in every month up to January 2014, the plaintiffs no.1 and 3 lodged a report against the defendant before II Town PS, Madanapalle, the defendant paid a sum of Rs.6,000- 00 (Rupees Six thousand only) towards the balance of rents for the months of
February to April in the presence of elders and SI of police, the defendant filed petition before the Prl. Jr. Civil Judge’s court, Madanapalle in O.S.No.55/2014 to permit him for deposit of monthly rents into the court and the same is pending, the defendant is running business in room No.3 and there is stock in the shop rooms, he has been in exclusive possession and enjoyment of the plaint schedule property without interruption of anybody including the plaintiffs, the plaintiffs are trying to interfere with the peaceful possession and enjoyment of the defendant for unlawful gain with the influence of the local police, on 22-2-2014, the local police called the defendant to the police station and warned the defendant to vacate the suit schedule shop room without giving breathing time, the plaintiffs no.1 and 3 colluded with the local police and they are trying to evict him from the shop room highhandedly, if the plaintiffs succeed in their attempts, the defendant will be put into irreparable loss and great hardship, the plaintiffs have support of anti-social elements and are trying to evict the defendant from the plaint schedule property with the help of anti social elements overnight, the plaintiffs have no need for suit schedule property for their own use and they are getting rents of Rs.1,00,000-00(Rupees One Lakh only) per months, the defendant paid the electricity consumptions charges to the A.P. Trans co in every month regularly, the defendant obtained the receipts from Mee Seva etc in the plaint schedule property to prove his exclusive possession and enjoyment of suit schedule property, the defendant is innocent person and is unable to resist highhanded acts of the plaintiffs, the plaintiffs are procuring their men and trying to dispossess the defendant in highhanded manner, the plaintiffs no.1 and 2 are openly proclaiming in the village that they will dispossess the defendant with the support of the local police, the defendant is regularly paying rents but the plaintiff 6 is not in the habit of issuing receipts, the defendant is purely dependent on the suit schedule property and the suit is liable to be dismissed.
4. The following issues are framed on :-
1. Whether the plaintiffs are entitled to seek for delivery of vacant possession of the suit property as prayed for?
2.Whether the plaintiffs are entitled to seek for arrears of rent from the defendant @ Rs.2400/- from the month of August 2013 till the date of filing of the suit?
3.Whether the plaintiffs are entitled for future rents at the rate of
Rs.2400/- per month together with an annual increase of rent at 20 percent per annum from the date of filing this suit till the date of vacating the premises?
4. To what relief?
5. To substantiate their claim, the plaintiff no.1 examined himself as P.W.1 and
Exs.A1 to A4 are marked. No oral and documentary evidence was adduced on behalf of the defendant.
6. ISSUE No.1:
The record reveals that issues were framed on 01-4-2019. It is not disputed between the parties that there is landlord and tenant relationship between the plaintiffs and the defendant. After issues are framed and during the course of trial, a memo was filed by the plaintiffs on 10-07-2019 with notice to the learned
Counsel for the defendant stating that vacant possession of the plaint schedule property was delivered by the defendant to the plaintiffs on 12-06-2019. No objection is endorsed by the defendant in the memo. Since the possession is admittedly delivered to the plaintiffs by the defendant out of the court during the pendency of the suit, the claim for the relief of eviction sought by the plaintiffs 7 has become otiose. As such, the issue is answered accordingly.
7. ISSUE No.2:
The learned counsel for the plaintiffs contended that the defendant is due to pay arrears of the rents for nine months prior to the date of filing of the suit i.e, starting from the rent for the month of August 2013 payable in the month of
September 2013 and ending with the rent for the month of April, 2014 payable in the month of May, 2014. The contention of the defendant as is discernible from the written statement is that the defendant paid an advance of Rs.20,000-00 (Twenty thousand only) at the inception of tenancy around 20 years ago, the defendant invested Rs.20,000-00 (Rupees Twenty thousand only) towards the improvements of the suit schedule property, the defendant is not due to pay any arrears, the defendant paid rents until January 2014 and the defendant also paid
Rs.6,000-00 (Six thousand only) towards balance of rents payable for February, 2014 to April,2014. But no evidence is placed by the defendant in support of the pleas taken in the written statement. It is trite in law that the pleadings without evidence remain unsubstantiated and such pleadings are of no avail to the parties. Since the defendant neither adduced any evidence on his behalf nor cross examined PW1 in support of specific pleas raised by him in the written statement, the contention of the defendant that there are no dues until April,2014, he paid advance of Rs.20,000-00 (Rupees Twenty Thousand only) and he invested
Rs.20,000-00 (Rupees Twenty Thousand only) towards improvements in the suit schedule property remain not proved.
8. Ex.A1 was the quit notice dt.11-11-2013 issued by the plaintiffs to the defendant in which it was alleged by the plaintiffs that the defendant paid rent upto August 2013 only. Ex.A4 was the reply notice dt.25-11-2013 issued by the defendant to the plaintiffs in which the defendant contended that he paid rents upto October 2013. Since notices were exchanged between the parties much prior 8 to the filing of the suit, it is inconceivable that the defendant as a prudent person would have paid rents to the plaintiffs subsequent to exchange of notices without obtaining any receipt from the plaintiffs or without having any slightest proof to show that he paid rents to the plaintiffs even after receipt of quit notice. The defendant did not even step into the witness box in support of the defence taken by him in the written statement that he paid rents upto April,2014. Under these circumstances, this Court is of the view that it is proper to believe that the defendant paid rents up to October 2013 only as stated by him in the reply notice issued prior to the filing of the suit and the rents from the month of November, 2013 payable in December, 2013 to the month of April, 2014 payable in May, 2014 are due to be paid by the defendant to the plaintiffs.
9. After determining the period for which the arrears of rents prior to the filing of the suit are to be paid by the defendant, the question of the quantum of rent payable by the defendant shall be looked into. The learned counsel for the plaintiffs contended that the rent payable by the defendant on the date of filing of the suit was Rs.2,400-00 (Rupees Two thousand four hundred only) per month whereas the learned counsel for the defendant contended that the rent being paid by the defendant on the date of the filing of the suit was Rs.2,000-00 (Rupees Two thousand only) per month. In the para 6 of the plaint, it is averred that the defendant was paying the rent @ Rs.2,000-00 (Rupees two thousand only) per month during previous period but the shop fetches rent @ Rs.2,400-00 (Rupees
Two thousand four hundred only) per month since it was agreed between the parties that the rent shall be enhanced @ 20 % for every two years. The defendant contends in his written statement that the original landlord who is the father of the plaintiffs no.1 and no.3 died on 10-07-2013 and the rent was enhanced from Rs.1,600-00 to Rs.2,000-00 by the plaintiffs after the death of the original landlord. In view of the contention of the defendant, the plaintiffs must specifically establish what the rent used to be paid by the defendant by the time 9 of death of the father of the plaintiffs no.1 and 3 was and when the rent alleged as payable by the defendant from August, 2013 @ Rs.2,400-00 (Rupees Two thousand four hundred only) was enhanced @ 20 % from Rs.2,000-00 (Rupees
Two thousand only) per month in previous period. The plaint is not clear about the rent that the defendant used to pay to the original landlord by the time of his death. The plaint is silent about when the rent was enhanced for the last time @ 20 % per month during the life time of the original landlord. It is simply averred by the plaintiffs that the defendant was paying rent at the rate of Rs.2,000-00 (Rupees Two thousand only) for the previous period and from August, 2013, the shop fetches rent of Rs.2,400-00 (Rupees Two thousand four hundred only) with an enhancement of 20 % over Rs.2,000-00 (Rupees Two thousand only) in view of understanding to enhance @ 20 % for every two years. But the plaint is evasive about the two years period during which the rent was paid @ Rs.2,000-00(Rupees
Two thousand only) per month. Without specific proof of lapse of two years from when the rent was enhanced to Rs.2,000-00 (Rupees Two thousand only) @ 20 % for every two years, the contention that the shop rent fetches rent @ 2,400-00 (Rupees Two thousand four hundred only) from August, 2013 has no legs to stand.
Under these circumstances, this Court is of the view that it is just to direct the defendant to pay rents at the admitted rate of Rs.2,000-00 (Rupees Two thousand only) per month from the rent of November, 2013 payable in December, 2013 to the rent of April, 2014 payable in May, 2014. As such, the issue is answered accordingly.
10. ISSUE No.3:
The learned counsel for the plaintiffs contended that the defendant is liable to pay future rents @ Rs.2,400/- (Rupees Two thousand four hundred only) per month with an annual increase of rent at 20% p.a. from the date of filing of the suit till the date of delivery. First of all, it is pertinent to observe that once tenancy is terminated between the landlord and tenant by issuance of quit notice in 10 accordance with law and there is lapse of time given under the quit notice for the tenant to vacate, a tenant ceases to be a tenant in strict sense and becomes a tenant-at-sufferance. Any amount which is recoverable from the tenant-at- sufferance shall be treated as damages for being in possession of the property without the consent of the landlord. Generally, the damages in a suit for eviction are imposed with an objective that the incentive in vacating the property for a tenant-at-sufferance would be more than the disincentive in not vacating the property so that the tenant-at-sufferance would vacate the property at the earliest failing which he would continue to stay in the property at his own risk with the sword of Damocles hanging over him by virtue of the damages imposed on him for each passing day. Here is a case where the defendant already vacated the property during the course of trial and the question of creating disincentive for the defendant in continuing the property without the consent of the plaintiffs does not arise.
11. It is already determined in the discussion under issue no.2 above that the quantum of rent payable by the defendant by the date of filing of the suit is
Rs.2,000-00 (Rupees Two thousand only) per month. It is pleaded in the plaint that there was an understanding between the defendant and the plaintiffs that there shall be a hike @ 20 % on the monthly rent for every two years. The defendant denied any such understanding between the plaintiffs and the defendant. But the plea of the defendant that he paid rent @ Rs.200-00 (Rupees Two hundred only) per month initially for the plaint schedule property and by the time of death of the original landlord, the defendant used to pay rent @ Rs.1,600-00 ( Rupees one thousand six hundred only) per month suggests that there has been gradual increase in the quantum of rent payable by the defendant which supports the version of the plaintiffs. But there is no proof adduced by the plaintiffs to show that the hike was understood @ 20 % for every two years on the rent payable in the preceding year. Though the defendant pleaded that there used to be increase 11 in rent for every five years, it is not supported by atleast the oral evidence of the defendant himself. The learned Counsel for the plaintiffs contended that since the defendant did not enter into witness box, the plaintiffs lost the opportunity to prove his case by way of cross examination of the defendant. However, the said contention of the plaintiffs does not help the plaintiffs to the extent of completely absolving the plaintiffs from putting any effort to establish that the hike @ 20 % for every two years on the rent payable in the preceding year was understood between the parties as pleaded by the plaintiffs. No other tenant in the locality of the plaint schedule property was examined by the plaintiffs to show that there is such hike prevalent in the locality. However, the Court is not devoid of inherent powers in exercise of its discretion to award reasonable rate of increase over the rent in order to put an end to the litigation between parties in view of the fact that the circumstances disclose that there had been gradual increase in the rent for the plaint schedule property. As there is no proof to show that 20 % increase over the rents for every two years is prevalent in the locality, it is just to award increase at the rate of 10 % over the rent in the preceding year. Since the plaintiffs claim is to grant the future rents instead of damages, this Court is inclined to grant the biennial increase instead of annual increase in tune with the terms of understanding with respect to rents said to have been in existence between the parties as pleaded in the plaint. As such, the issue is answered accordingly.
12. At this juncture, it is relevant to refer to Sec.41 of the AP Court Fees and
Suits Valuation Act, 1956. Sec.41 of the Act provides for payment of court fees in the suits for mesne profits. The said provision is equally applicable for the claim of any payment in the nature of mesne profits or damages. The plaint discloses that the plaintiffs paid court fee at the time of filing of the suit on the future rents claimed by them for one year after the date of filing @ Rs.2,400-00 (Rupees Two thousand four hundred only) per month. Since the Court awarded the future rents 12 @ Rs.2,000-00 (Rupees Two thousand only) per month with biennial increase @ 10 % on the rent payable in the preceding year, the plaintiffs are liable to pay court fee for the excess of the future rents awarded to them till 12-06-2019 above the future rents of Rs.28,800-00 (Rupees twenty eight thousand eight hundred only) claimed by them for one year from the date of filing of the suit as contemplated under Sec.41 of The AP Court Fees and Suits Valuation Act,1956.
13. Issue No.4:
In the result the suit is partly decreed with proportionate costs in favour of the plaintiffs and against defendant directing the defendant
01. To pay arrears of rents @ Rs.2,000/- (Rupees Two thousand only) per month commencing with the rent for the month of November, 2013 payable in
December, 2013 and ending with the rent for the month of April, 2014 payable in May, 2014 and
02. To pay future rents @ Rs.2,000/- (Rupees Two thousand only) per month from the date of filing of the suit till the date on which the defendant vacated the plaint schedule property i.e.,12-06-2019 with an increase @ 10% over the rent payable in the preceding year for every two years from the date of filing of the suit.
03. The plaintiffs shall pay court fee for the future rents awarded by this court from the date of filing of the suit to 12th June, 2019 in excess of the future rents for which court fee was already paid. The decree shall be drafted after payment of court fee by the plaintiffs.
The suit is dismissed without costs with regard to the relief of eviction sought by the plaintiffs.
Typed to my dictation by Typist, corrected and pronounced by me virtual court through blue Jeans on this the 17thday of September, 2020.
PRINCIPAL JUNIOR CIVIL JUDGE
MADANAPALLE
FAC: I ADDITIONAL JUNIOR CIVIL JUDGE,
MADANAPALLE
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APPENDIX OF EVIDENCE
No. of Witnesses Examined
For Plaintiff : For Defendant : NIL
P.W.1 : Shaik Dadapeer (Plaintiff No.1)
No. of Exhibits marked
For Plaintiff : For Defendant : NIL
Ex.A1 : Office copy of the notice sent by the landlords to the defendant.
Ex.A2 : served reply notice dt.25-11-2013 sent by the defendant to the plaintiffs.
Ex.A3 : Plaint in OS.NO.55/2014 filed by the defendant against the plaintiffs on the file of Prl. Junior Civil Judge’s court,
Madanapalle.
Ex.A4 : Written statement in OS.NO.55/2014 on the file of Prl. Junior Civil Judge’s court,
Madanapalle.
Note: Though served reply notice and written statement are marked as Ex.A2 and A4 during the chief-examination of PW1, the same are noticed to have been wrongly exhibited as Ex.A4 and A2 as per the endorsements on the documents while preparing for judgment and the said clerical error is rectified before pronouncing judgment.
PRINCIPAL JUNIOR CIVIL JUDGE
MADANAPALLE
FAC: I ADDITIONAL JUNIOR CIVIL JUDGE,
MADANAPALLE