1
IN THE COURT OF THE PRINCIPAL SENIOR CIVIL JUDGE, VIJAYAWADA
PRESENT: SRI M.Rama Seshagiri Rao, B.A., B.L.,
PRINCIPAL SENIOR CIVIL JUDGE
Thursday, this the 25th day of July, 2013
O.S.No.888/2010
Between:
Ponnuru Ramesh @ P. Ramesh s/o Pandurangasetti, Hindu, 52 years, Properties & Business, r/o Dr.No:5431/2, 6th Block, 2nd cross Road, Auto Nagar, Vijayawada. …Plaintiff.
And
1. Padamata Subrahmanyam s/o Suryanarayana, Hindu, 39 years, c/o Chandana Ladies Hostel, Dr.No:39115, Turlapati Kutumba Rao St., Labbipet, Vijayawada10.
2. Padamata Vara Lakshmi w/o Subrahmanyam, Hindu, 34 years, c/o Chandana Ladies Hostel, Dr.No:39115, Turlapati Kutumba Rao St., Labbipet, Vijayawada10.…Defendants.
This suit is coming on this day before me for final hearing on 5.7.2013 in the presence of Sri. Ch. S.S.V. Prasad advocate for the plaintiff and of Sri. P. Uma Sakar advocate for the defendants and this matter having stood over till this date for consideration and upon hearing both sides and on perusal of entire case material on record, the Court delivered the following :
JUDGEMENT
Suit for ejectment of the defendants from the tenanted premises i.e., entire first floor consisting of Eleven rooms with a passage and six bath rooms and toilets and a tin sheet shed of two rooms in the second floor of the building viz “ Panduranga
Complex” bearing door number 39115, situated in Turlapati Kutumba Rao St.,
Labbipet, Vijayawada and deliver the vacant possession of the same to the plaintiff and for grant of damages @ Rs.44,000/ per month from 1.7.2010 onwards till the date of delivery of vacant possession of the tenanted premises to the plaintiff and for recovery of monthly rents of Rs.1,83,000/ being rent in part of October, 2009 and total monthly rents from November, 2009 to June, 2010 @ Rs.22,000/ per month of the tenanted premises and for costs.
2. It is averred in the plaint that the plaintiff is the owner of the schedule building namely “Panduranga Complex” situated in Turlapati Kutumba Rao St.,
Labbipet, Vijayawada with ground floor, first foor and a room and tin sheeted shed etc., in the second floor. It is also averred that the defendants 1 and 2 are man and 2 wife; that the defendants took the schedule premises on the monthly lease from
February, 2005 for running boys hostel namely “ Sri Navata Boys Hostel” and mess at a rent of Rs.10,000/ per month payable on or before 5th of every succeeding month; that the tenancy is monthly tenancy as per the English Calendar month; that since the inception there is no system of issuance of receipts. But, the plaintiff used to acknowledge the rents in the pocket book of defendants; that the first floor consists of 11 rooms; that during April, 2006 by obtaining regularization permission from the
Municipal Corporation, the plaintiff renovated the bath rooms, toilets and drainage system. Since each room occupied by 4 or 5 students there was excess usage by the inmates there was blockage of drainage; that the plaintiff was getting the plaint schedule premises white washed besides attending day today repairs and maintenance; that in the month of April, 2006 the rent was enhanced to Rs.18,000/ per month duly acknowledged in the pocket book of the defendants; that during earlier part of the year 2008 the defendants 1 and 2 changed the boys hostel as “Chandana Ladies Hostel” and continued mess with accommodation by saying that....... the defendants raised kitchen section and dining hall in the 2nd floor. Ever since, the defendants started ladies hostel, due to dumping of sanitary napkins in the toilers the drainage system was blocked causing unbearable foul smell and leakage of the drainage with intolerable and unhygienic conditions causing nuisance to health hazar to the tenants of the ground floor and neighbours; that the inmates of the first floor hostel were throwing unwarranted material in to the ground floor which also amounts to nuisance; that the tenants of the ground floor complained the same to the plaintiff; that the plaintiff many times requested the defendants to avoid said nuisance by the inmates of hostel. But, the defendants paid deaf ear; that the defendants on the ground of personal inconvenience did not pay rents from the month of October, 2009; that during 3rd week of December, 2009, drainage system of entire building was totally blocked, due to the usage of toilets by inmates resulting in series of complaints to the plaintiff threatening to file police reports; that in spite of plaintiff's requests the defendants did not control the misuse of toilers by inmates; that in stead 3 of taking steps to rectify the misuse of the toilets the defendants filed OS 1668/2009 on the file of Principal Junior Civil Judge court, Vijayawada and obtained injunction against the plaintiff not to evict them except under due process of law by making wild allegations and false pleas; that ever since October, 2009 the defendants failed to pay the agreed rent and pleaded in the said suit as if the monthly rent initially was
Rs.1,000/ and later enhanced to Rs.2,500/ per month and that they were paying said rent upto date. Thus, the defendants committed wilful default. The plaintiff being a dutiful obedient citizen filed memo of no objection and the said suit in
OS No:1668/2009 was decreed; that the defendants are liable for wilful default for taking pleas of they are running hostel in 2223.5 square feet excluding the bath room cum toilets in the first floor and kitchen, dining section etc., in the 2nd floor.; that the schedule property situated in the heart of Vijayawada city, commercial area adjoining
Mahatma Gandhi Road @ Bandar Road; that the same is 2nd building from Mahatma
Gandhi Road; that the allegations of less rent @ Rs.2,500/ per month by the defendants is false and absurd. Thus, it is clear that the defendants are bent upon causing wrongful loss to the plaintiff by taking advantage of absence of receipts and the pocket book is in their custody. Thus, the defendants are at willful default and no longer desirable tenants in the premises; that the plaintiff got issued notice dated 12.5.2010 terminating the tenancy and requesting the defendants to vacate the schedule premises by 30.6.2010 after clearing the arrears of rent @ Rs.22,000/ per month. The D1 and D2 are served with said notices, but, they have not issued any reply and not vacated the property; that prior to the said notice 1st defendant sent demand draft for Rs.10,000/ on 3.4.2010 and Rs.5,000/ on 28.5.2010 alleging the same as the rents for the months of December, 2009 to May, 2010; that the plaintiff sent rejoinder notice dated 19.6.2010 putting forth the real claim. Still the defendants did not issue any reply and hence the plaintiff appropriated the above Rs.15,000/ as part payment of rent of October, 2009; that the defendants through their advocate sent notices informing deposit of Rs.7,500/ in the court in IA 495/2010 in RCC 53/2010; thus the defendants committed default in payment of rents amounting to 4 Rs.1,83,000/ by the date of filing of the suit. Thus, the defendants are liable for eviction and the plaintiff is entitled for other reliefs as prayed for. Hence, this suit.
3. Defendants 1 and 2 filed common written statement admitting the tenancy by pleading that during 2005 they took the premises for residential purpose on a monthly rent of Rs.1,000/ payable by first of every calendar month; that there is no practice of issuance of rent receipts; that 1st defendant was originally employee in
APSRTC suffering from cardiac problem stopped attending duty and incurring costly medicines for his treatment; that 2nd defendant who is expert in cooking wanted to start a mess in the schedule property informed the same to plaintiff and with the consent of the plaintiff commenced the mess; that during 2008 the plaintiff himself offered the first floor for non residential purpose at Rs.2,500/ per month for a fixed period of 15 years besides electricity charges; thus, from May, 2008 onwards defendants remodeled the structure by incurring Rs.2,50,000/ started “Chandana
Ladies Hostel' and with the consent of the plaintiff they laid a thatched shed above the first floor and using the same as mess room; that they were regularly paying the rents that gradually their business flourished. There upon the plaintiff wanted to increase the rent from October, 2009; that plaintiff was proclaiming with other neighbouring shop owners of the defendants that the said premises would fetch more than
Rs.3,000/ rent and finally demanded to vacate the same unless the defendants pay
Rs.3,500/ poer month. Hence, during first week of December, 2009 the defendants paid rent for November, 2009. When the defendants demanded for receipt the plaintiff demanded for enhanced rent and demanded them to vacate; that ever since 2nd week of December, 2009 the plaintiff was visiting the schedule property, threatening the girl students in the schedule property demanding them to vacate the same; that the defendants approached the plaintiff through mediators, but he avoided and started threats of forcible dispossession; that on 28.12.2009 at 6.00 P.M. plaintiff followed by some unknown persons came to the schedule property and threatened the defendants to vacate the same at once or otherwise they would throw away the 5 sammans. Thereupon the defendants filed suit for permanent injunction in OS 1668/2009 in Principal Junior Civil Judge court, Vijayawada and obtained temporary injunction after approaching the Patamata police who refused to entertain the report as civil dispute; that the total area in the occupation of the defendants is 2223.5 square feet excluding bath rooms and toilets; that the allegations of the plaintiff, that the tenancy commenced at Rs.10,000/ per month enhanced to Rs.18,000/ finally upto Rs.22,000/ per month is not correct; that the plaintiff did not attend repairs at any time The blockage of drainage leakage of water emitting foul smell since the inmates throwing garbage and causing nuisance to first floor occupants etc., are utter falsehood; that as the plaintiff refused to accept their needs they filed RCC as per the agreed rent is less than Rs.3,000/. This court is not having Jurisdiction to try the suit; and the plaintiff is barred from filing the suit under Transfer of Property Act; that the alleged quit notice by the plaintiff is not maintainable and the plaintiff has no right to terminate the tenancy prayed for dismissal of the suit.
4. Basing on the above pleadings the following issues are framed on 24.4.2011
1) Whether the plaintiff is entitled for eviction of possession?
2) Whether the plaintiff is entitled for arrears of rent and for damages and costs?
3) To what relief?
5. In support of their respective contentions plaintiff himself examined as P.W.1 and one tenant in the first floor as P.W.2 marked Ex.A1 to Ex.A28. As against this 1st defendant himself is examined as D.W.1 and one independent witness as D.W.2 No documents are filed by the defendants.
6. Heard both sides. During arguments learned counsel for the defendants raised the point of lack of Jurisdiction pleaded by them and brought to my notice that issue was not framed on this aspect. A perusal of written statement disclose that the defendants pleaded Rs.2,500/ rent per month and hence the civil court is not having
Jurisdiction. My learned predecessor ought to have framed the issue about the jurisdiction of this court.
6 However our Hon'ble High court held in the following decisions
1) in Gorrela Durga Vara Prasada Rao Vs. I. Rama Raju reported in 2002(2) ALT 589 DB
2) In Ali Mohamood Vs. Special Court for Land Grabbing cases reported in 2000(5) ALD 172 DB
3) Asia Begum Vs. Mohamood Begum reported in 2010(1) ALD 389 following in Challa China Subba Reddy Vs. Challa Peda Munaiah reported in 2006(6) ALD 751 and
Recent Division Bench Decisions
4) in P.V. Satyanarayana Murthy Vs. Election Tribunal cum Principal
Junior Civil Judge, Yelamanchili reported in 2009(4) ALT 492 DB
The Hon'ble High court of A.P. held that “ When points in dispute are covered in the pleadings non framing of issues on that points is not fatal and evidence let in on said points can be considered”
Following the above law laid down by our Hon'ble High court I have perused the evidence on said aspect.
7. P.W.1 in his chief examination simply mentioned that the allegations made by the defendants are not true and correct. It was not suggested to P.W.1 that this suit is not maintainable in civil court, but, has to be filed before the Rent
Controller court. Coming to D.W.1 evidence in spite of specific plea in written statement in the last sentences of chief examination affidavit he stated that the quantum of rent is less than Rs.3,000/ and the issue is to be tried by the Rent
Controller established for that purpose. Thus, D.W.1 deposed circumventingly not directly deposing that this court is not having Jurisdiction. But, during the cross examination, he admitted that property tax per half year for his occupation is
Rs.16,500/, but, he is not aware whether the Municipal Corporation, Vijayawada assessed the rental value as Rs.2,750/ per month. In support of their contention that in that locality similar premises are being let for a throw away rent of less than
Rs.3,000/, the defendants have not adduced any independent evidence or any neibouring premises owners. The D.W.1 admitted that schedule property is in busy locality adjoining Dimple bar on the south and that was the first building from Bandar
Road in the Turlapati Kutumba Rao Street. D.W.1 also admitted that in between the 7 plaint schedule premises and Benz Circle there are 5 Star Hotels and 17 Jewelery shops and other commercial establishments. Why this is to be taken as admission because for a specific question D.W.1 does not deny their existence, but gave evasive reply that “ they are at far away distance”. D.W.1 appears to try to mislead the court by not admitting the distance, he being RTC driver. He went to the extent of deposing false hood that he did not know the distance between the Plaint Schedule Building and Benz Circle, at the same time he gave distance between Bus stand and Benz
Circle is 6 to 7 Kilo meters and from RTC Bus stand plaint schedule building is situated in 4 Kilo Meter distance and the remaining distance i.e. 2 or 3 Kilometers.
Thus D.W.1 admitted said remaining distance between the Benz Circle and Plaint
Schedule building. He also admitted situation of Muttavarapu Venkateswara Rao
Commercial Complex opposite to the schedule property.
8. Thus, admittedly the schedule property situated in commercial area, but not in residential area. Moreover, D.W.1 admitted that RCC 53/2010 filed by the defendants was dismissed after enquiry. Plaintiff filed certified copy of Judgment in
RCC 53/2010 marked as Ex.A18. I have perused the said order. The first defendant as
P.W.1 marked Ex.A1 to ex.A6 i.e. copy of notice, copy of the demand draft and Money
Order, notices. No such documents as evidence are let in here. Further the defendant has not followed the mandatory requirements of section 18(2) of the AP. Buildings (Lease, Rent and Eviction) Control Act. For not giving notice to the plaintiff, about the depositing of rent on his refusal to receive, thus, RCC was dismissed on technical grounds. But, it is pertinent to note that these defendants have not filed appeal against said dismissal of RCC and kept quiet. The said conduct of the defendants imply that they are aware that the schedule premises fetches more than Rs.3,000/ rent per month. As such the conduct of the defendants and situation of schedule premises in Vijayawada city which is known as commercial capital in the state of
Andhra Pradesh next to Hyderabad. The plea of the defendants in obtaining the schedule premises at a nominal rent of Rs.3,000/ for non residential purpose at 8 Rs.2,5000/ cannot be believed. Moreover, when the half yearly property tax itself as admitted by D.W.1 as Rs.16,500/ I disagree with the arguments of the learned advocate for the defendants that this court is not having Jurisdiction and that the matter is triable by the Rent Control Court.
ISSUES 1 AND 2. ( Since these two issues are interrelated they are decided
commonly)
9. P.W.1 during his evidence marked Ex.A1 to Ex.A26. Ex.A1 is the office copy of the quit notice dated 12.5.2010. Ex.A2 is the postal receipt. Ex.A3 is the postal acknowledgment of D2. Ex.A4 is the certificate issued by Superintendent of Post
Offices regarding the serviced of notice to D2. Ex.A5 is the letter sent by D1 dated 4.5.2010. Ex.A6 is the letter dated 2.6.2010. Ex.A7 is the reply notice. Ex.A8 is the postal acknowledgment. Ex.A9 to Ex.A12 are certificates from Postal authorities regarding service of notices to D2. Ex.A13 to Ex.A18 are filed later.
10. P.W.1 deposed that in February, 2005 he leased out the schedule premises at a rent of Rs.10,000/ for running Sri Navatha Boys Hostel and Mess.; that he never issued receipts to defendant, but, used to acknowledge the pocket account book maintained by the defendants. But, due to excess usage of inmates, there was drainage block etc., ; that in the month of April, 2006 he incurred expenses and also got the bath room, toilets regularized by obtaining Municipal permission. In support of the same, P.W.1 filed Ex.A20 receipt of payment of Rs.27,5000/ towards regularization fees. P.W.1's contention is that since April, 2006 on mutual understanding rent is enhanced to Rs.18,000/ per month; that in the first part of the year 2008 defendants changed the premises as ladies hostel with name “Chandana
Ladies Hostel” by keeping the mess in the 2nd floor. There upon in the month of April, 2009 rent was enhanced to Rs.20,000/; that the defendants paid the said rents upto
December, 2009 and thereafter due to choking of drainage by dumping sanitary 9 napkins etc., resulting blockage and emitting foul smell and leakage of drainage water, throwing unnecessary material in the first floor causing inconvenience to the inmates of the first floor; that he requested the 2nd defendant to instruct the inmates, but the defendants paid deaf ear; that since October, 2009 defendants post poned payment of rent on the pretext of causing personal inconvenience and thereafter not paid the rent; that in the 3rd week of December, 2009 entire drainage system was blocked due to misuse of toilets by the inmates. On the complaint of ground floor tenants he approached the defendants to avoid nuisance and also to maintain hygiene conditions. But, the defendants filed OS 1668/2009 seeking injunction against him; that since P.W.1 is not resorting unlawful methods to evict the defendants he filed consent memo in Ex.A13. Accordingly, the Principal Senior Civil Judge passed Ex.A14 decree and Judgment granting Permanent Injunction in favour of defendants restraining P.W.1 from interfering with the peaceful possession and enjoyment of the defendants, except under due process of law.
11. As can be seen from the Judgment passed on 30.9.2010 in that suit defendants filed telephone bills and electricity bills license fees received and trade license to run hostel. The same are not exhibited in this suit. As rightly contended byt the plaintiff's counsel Ex.A13 reveals that the plaintiff filed said memo on 27.9.2010 mentioning that he filed comprehensive suit in OS NO:888/2010 seeking eviction of the defendants, hence, he has no objection to decree the suit resulting Ex.A14. Thus,
Ex.A14 was not passed after full trial, except on the consent of this P.W.1, that the dispute shall be decided in this suit. As already discussed above the defendant's RCC
No:53/2010 was dismissed under Ex.A15 orders. Ex.A16 is the petition in
RCC 53/2010. Ex.A17 is the written arguments of this plaintiff in said RCC. Now the point is whether the suit premises fetch Rs.22,000/ rent per month as claimed by
P.W.1 or its was letout at Rs.2,500/ per month as contended by the defendants.
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12. D.W.1 deposed that after his cardiac trouble he absented from duty resulting in his dismissal. Then he took the schedule premises on lease to run hostel for boys and admitted in cross examination that during running of said hostel a death occurred due to electrical shock where in a boy expired vide Ex.A21 to Ex.A25. On perusal of the same it discloses that one BVSS Rajasekhar aged about 19 years expired by coming into contact with electricity line passing by the side of this building and that 2nd defendant gave Ex.A21 complaint to Machavaram Police. The police conducted enquiry under section 174 of Cr.P.C. which is evident from Ex.A22. Ex.A23 is the CD covering Post Mortem examination report dated 21.4.2006. Ex.A24 is the
CD that no foul play was detected and the SHO required further instructions from the higher authorities for further proceedings. Ex.A24 is the complaint given by the father of the deceased boy that valuables and clothes of deceased were not found and he suspected foul play. But, this report copy is not having any date and no action was taken by the police. It appears that there is no further investigation on Ex.A25. The same is a piece of evidence to show that the defendants are using the schedule premises for nonresidential purpose which they have also admitted as they are running hostel for boys in the first instance and started running ladies hostel during the year 2008.
13. Mainly both P.W.1 asserted and D.W.1 admitted that there are 11 rooms in the first floor with common corridor and 6 bath rooms cum toilets in the first floor situated at the South East corner and the occupation shall comes to 2223.5 square feet as is evident from Commissioner report and sketch. P.W.1 deposes that same is busy commercial area and the schedule premises is 2nd building from Bandar Road which is highly potential market value place. The plea of the defendants that they were paying
Rs.2,500/ rent is absurd. In support of his evidence P.W.2 also gave evidence. This
P.W.2 is occupant of DTDC Courier shop in the ground floor of 200 square feet.
Originally he paid Rs.750/ at the time of inception and by the date of giving his evidence during 2013 the rent stated is Rs.5,500/ This witness also deposed that 11 due to excess usage by the inmates there was blockage of sanitary pipes; that subsequent to turning it as ladies hostel, the premises is having frequent blockage of drainage resulting foul smell and leakage of drainage. The hostel inmates used to throw unwarranted material in to ground floor causing nuisance and they used to complain the plaintiff who in turn approached the defendants. but, the defendants failed to check the nuisance of the inmates.
14. During cross examination this witness asserted that plaintiff has not issued receipts; that since 2 years prior to his evidence, himself 4 or 5 other tenants were making payments by issuing cheques; that he was not maintaining any book for payment of rents and there was no acknowledgment of the plaintiff. He admitted that since 2 years prior to his evidence due to nuisance caused from the bath rooms there are disputes between himself and defendants 1 and 2. Except this no interestedness is made out in the evidence of P.W.2.
This P.W.2 clearly deposed in para 7 and 8 of his chief examination affidavit that the plaintiff enhanced the rent to Rs.18,000/ from April, 2006 and that in the earlier part of 2008 the defendants changed the schedule premises same into “Chandana Ladies Hostel”. Thereupon from 2009 onwards rent was enhanced to
Rs.22,000/ per month. This aspect is not specifically denied by the defendants in cross examination of P.W.2. The only aspect gained is that the plaintiff informed him about the payment of rents and he is not having personal knowledge. Defendants advocate argued that P.W.2 is hearsay evidence cannot be relied upon. For a moment defendants arguments is considered and P.W.2 is ignored, still the admissions of
D.W.1 are there that the suit property is situated in commercial area in Turlapati
Kutumba Rao Street, Labbipet, Vijayawada being 2nd building from Bandar Road.
D.W.1 admitted situation of commercial complex opposite to the schedule building and ground floor was leased out to shop rooms. D.W.1 also admitted that in the first 12 floor 6 or 7 tenants are there. Further he admitted that the first building between
Bandar Road and this building is Dimple Bar.
15. As can be seen from Ex.A14 decree and Judgment the boundaries of property is as follows
EAST: Property of T. Sabbulu.; WEST: Turlapati Kutumba Rao St.,
NORTH:Property of M. Ratnam; SOUTH: Property of Dimple Bar
During D.W.1's evidence in Ex.A14 Judgment as P.W.1 is that, the plaint schedule premises is situated in Bandar Road consisting of 10 living rooms and one office room and in the up stair there is shed and himself and his family members are residing there which is also used as mess for providing food to the hostel students. In each room 4 or 5 students are staying and they are collecting Rs.1,000/ to Rs.1,500/ from each student. Even a perusal of Ex.A14 Judgment shows that P.W.1 claimed
Rs.20,000/ per month denying the said suit allegations of Rs.2,500/ per month. The very same contentions are there in RCC 53/2010 also as can be seen from Ex.A16 counter in RCC 53/2010. Thus, D.W.1's evidence that rent for schedule premises is
Rs.2,500/ per month cannot be believed.
16. P.W.1 has filed his Income Tax Returns and statement of account for the year 20072008 marked as Ex.A26, 200809 marked as Ex.A27 and Ex.28 is for the year 200910. The statement of account Ex.A26 discloses that on 5.5.2007, 5.6.2007, 5.7.2007, 6.8.2007, 27.9.2007, 10.10.2007, 5.11.2007, 5.12.2007, 5.1.2008, 5.2.2008, 27.3.2006 and 31.3.2008, this 1st defendant paid Rs.18,000/ per month towards rent for the respective previous months. It is also discloses that the rents received from other tenants and P.W.2 is shown to have paying Rs.3,000/ per month for the years 200708. As per Ex.A27 this D1 paid Rs.18,000/ per month upto 31.3.2009 for the previous months. Ex.A28 is the ledger for the financial year 2009 2010. On 14.5.2009, 15.6.2009, 15.7.2009, 22.8.2009, 15.9.2009 and 14.10.2009 D1 is shown to have paid Rs.22,000/ per month towards rent, thereafter there are no 13 subsequent entries for the subsequent months from October, 2009 onwards which corroborates the oral evidence of P.W.1, that rent is not paid since October, 2009.
It is the admitted case of both parties, the plaintiff is a trader having his office in Auto
Nagar, Vijayawada and as per the defendant, P.W.1 is a whole sale distributor of
Super Vasmol besides, having this complex. As can be seen from the Income Tax
Return, plaintiff is possessing another premises in Chennai besides suit schedule complex and getting rents from there also which are shown in Ex.A26 to Ex.A28.
Without actually receiving rents this P.W.1 would not have shown said rents claimed to have received from defendants and other tenants.
18. As against this the defendants examined D.W.2 claiming as former clerk of
P.W.1. This D.W.2 deposed that schedule premises was taken by the defendants for a rent of Rs.1,000/ per month in 2005 which was gradually increased to Rs.2,500/ per month; that he worked as clerk in the plaintiff firm from 2005 to 2012 used to collect the rents and stock lifting of plaintiff business; that he collected Rs.2,500/ rent from defendants upto 2009. In cross examination this witness deposed that he is not having any documentary evidence to show that he worked under P.W.1. He does not know the door number of the schedule property and how many tenants are there and how much rent is received by P.W.1 from them. He further admitted that he does not know for how many products the plaintiff is acting as dealer and he does not know the office of the plaintiff and he know the godown of P.W.1 only sitauted in Auto
Nagar, Vijayawada. He further stated that he did not sign in any book or receipt to defendants on behalf of the P.W.1 for receiving rents. He does not know the distance between Bundar Road and plaint schedule property. He was unable to give number of tenants in plaint schedule property and what was nature of business conducted in the plaint schedule property complex, except saying that there are 6 shops in the ground floor. Thus, this D.W.2 appears to be a chance witness produced by the defendants in support of their case.
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19. When P.W.1 ascerts that the suit schedule premises is fetching rent of
Rs.22,000/ per month basing on Income Tax Returns before the statutory authorities showing that he received Rs.22,000/ rent per month from defendants upto
September, 2009 and defendants have not paid rent thereafter, of course subsequently, through RCC only Rs.15,000/ was paid etc.,. Thus, the plaintiff discharged his burden of proof by letting in documentary evidence that the suit schedule premises is fetching Rs.22,000/ per month and that the same is situated in commercial area. Besides this oral evidence of P.W.2 is there, and nothing worth while is elicited to disbelieve the evidence of P.W.2.
20. As against this D.W.1's evidence is of no use. Though D.W.1 claimed to have paid property tax for some period and claimed to have handed over the receipts to P.W.1. D.W.1 not produced the receipts of their copies to show how much rent was paid by him and adjusted towards rent by filing necessary documents. Even though he filed certain documents Ex.A14 suit proceedings the same are with held by defendants in this suit. Moreover, D.W.1 denied knowledge, that whether the
Municipal Corporation assessed the rental value of the suit schedule premises as
Rs.95,541/ per half year, but, admitted that he paid Rs.16,5000/ property tax for half year which comes to Rs.2,700/ or Rs.2,800/ per month. Admittedly said tax is more than the rent alleged to be paid by the defendants. No man of ordinary prudence will lease out his building for such nominal rent that too less than the tax imposed by the Municipal Corporation. Thus, under any stretch of imagination defendants contention they were paying Rs.2,500/ rent only from 2008 and there is oral lease for 15 years do not sustain.
21. Another aspect is that when such a house was leased for a period of 15 years it must have been born by registered lease deed or at least unregistered lease deed to corroborate the version of defendants. Absence of the same, throws doubt on the version of defendants, particularly in the light of Ex.A26 to Ex.A28 showing 15 payment of rent @ 18,000/ per month upto 31.3.2009 and Rs.22,000/ per month thereafter upto Septermber, 2009. Thus, I disbelieve the defendants contention and I up hold the plaintiff's contention that the defendants committed willful default and
P.W.1 is entitled to Rs.22,000/ rent per month as prayed for. The evidence adduced clearly disclosed that the defendants raised false pleas which cannot be believed.
I believe the oral evidence of P.W.1 and P.W.2 corroborated by Ex.A1 to Ex.A28. Even for Ex.A1 quit notice there is no reply by defendants. Only when P.W.1 intensified his tenants not to cause nuisance in the month of December, 2009 the defendants came upon with Ex.A13 and Ex.A14 for the first time putting forth, the plea of monthly rent of Rs.2,500/ per month and 15 years oral lease is not tenable. Thus, the defendants committed wilful default and the plaintiff is entitled to evict the defendants from the schedule property and also entitled to recover Rs.1,83,000/ arrears at Rs.22,000/ per month from October, 2009 onwards. I decided Issues 1 and 2 in favour of the plaintiff.
ISSUE No:3
22. IN THE RESULT, the suit is decreed as prayed for with costs
a) directing the defendants 1 and 2 to vacate the suit premises and handover possession of the same to the plaintiff within one month period from the date of this
Judgment.
b) The defendants 1 and 2 are directed to pay Rs.1,83,000/ being arrears of rent to the plaintiff i.e. from October, 2009 onwards till the date of filing of this suit.
c) further the defendants are liable to pay damages @ Rs.22,000/ per month from the date of the suit till delivery of vacant possession of schedule property to the plaintiff
d) on failure of payment of said damages the plaintiff can recover the same by paying necessary court fees in execution petition..
Dictated to the Personal Assistant, transcribed by him, corrected and
pronounced by me in the open Court on this the 25th day of July, 2013.
PRINCIPAL SENIOR CIVIL JUDGE
VIJAYAWADA
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APPENDIX OF EVIDENCE
WITNESSES EXAMINED ON BEHALF OF
PLAINTIFF DEFENDANTS
P.W.1: P. Ramesh D.W.1: P. Subrahmanyam P.W.2: K. Vijaya Kumar D.W.2: B. Subrahmanyam
DOCUMENTS MARKED ON BEHALF OF
PLAINTIFF DEFENDANTS
Ex.A1: office copy of legal notice dt. 12.5.2010 NIL Ex.A2: Postal receipts Ex.A3: postal acknowledgment Ex.A4: office copy of the complaint Ex.A5: Copy of letter dt. 4.5.2010 Ex.A6: Copy of letter dt. 2.6.2010 Ex.A7: Office copy of reply notice Ex.A8: Postal receipts & Acknowledgment Ex.A9 to Ex.A12: Letter from Postal department for service of quit notice on D1 and D2. Ex.A13: Memo in OS No:1668/2009 Ex.A14: CC of decree and Judgment in OS 1668/2009 Ex.A15: CC of petition in RCC 53.2010 Ex.A16: CC of counter in RCC 53./2010 Ex.A17: CC of written arguments in RCC 53/2010 Ex.A18: CC of order in RCC 53/2010 Ex.A19: House tax paid details issued by VMC Ex.A20: Regularization charges receipt paid to VMC Ex.A21: Attested copy of FIR issued by SHO, Machavaram P.S. Ex.A22: Copy of CD in Cr.No:192/2006 of Machavaram P.S. Ex.A23: Copy of CD partI in Cr.No:192/2006 of Machavaram P.S. Ex.A24: Copy of CD in Cr.No:192/2006 Ex.A25: Copy of complaint given by D2. Ex.A26to Ex.A28: Income tax returns filed by plaintiff for the years 200708, 200809 and 200910.
PSCJ/VJA