IN THE COURT OF THE CHIEF JUDGE, CITY CIVIL COURT AT
HYDERABAD
Monday, the 23 rd day of September, 2013
PRESENT: SRI M. SEETHARAMA MURTI, B.SC., B.L.
CHIEF JUDGE
O.S.NO.695 OF 2009
Between:
M. Shujauddin Khan, S/O Late Sharfuddin Khan,
Aged about 62 years, Occ:Retired Technical Manager
Manager (ECIL), R/O H.No.63903/A/A,
Raj Bhavan Road, Yashoda Hospital Lane,
Somajiguda, Hyderabad – 500 082.
....Plaintiff
And
1. U. P. Handicrafts Development and
Marketing Corporation Limited, U. P. Government
Undertaking under Department of Industries,
Government of U.P. Earlier the present Corporation also called as M/S Uttar Pradesh Export Corporation
Limited (A U.P. Government Undertaking), 2 Rana Pratap Marg,
Moti Mahal, Lucknow, U.P.
2. The Chairman
U. P. Handicrafts Development and
Marketing Corporation Limited.
(A U.P. Government Undertaking), 2 Rana Pratap Marg,
Moti Mahal, Lucknow, U.P.
2
3. The Managing Director
U. P. Handicrafts Development and
Marketing Corporation Limited.
(A U.P. Government Undertaking), 2 Rana Pratap Marg,
Moti Mahal, Lucknow, U.P.
4. The Incharge
U. P. Handicrafts Development and
Marketing Corporation Limited.
(A U.P. Government Undertaking), Gangotri Show Room, 59243, and 59244, Opp:St. George Grammar School,
Abids Road, Hyderabad.
[Amended as per orders dated 02.07.2012 in I.A.No.2595 of 2012]
...defendants
This suit is coming on 27.06.2013 before me for final hearing in the presence of Sri Khaja Moizuddin, Advocate for the plaintiff, Sri A. K.
Narsimha Rao, Advocate for the Defendants 1 to 4 and having stood over for consideration till this day, the Court delivered the following:
J U D G M E N T
This is a suit (a) for eviction of the defendants from the premises bearing municipal No.59243 and 244 admeasuring about 6000 square feet situated at Abids Main Road, Hyderabad more fully described in the schedule annexed to the plaint; (b) to restrain the defendants from changing the nature of the existing superstructures comprised in the plaint schedule property; (c) to restrain the defendants from carrying out additions 3 or alterations to the plaint schedule property; (d) to restrain the defendants from inducting any person or persons into the plaint schedule property; (e) to direct the defendants to pay Rs.32,59,032/ (Rupees Thirty Two Lakhs Fifty
Nine Thousands And Thirty Two Only) towards arrears of rents from 01.12.2007 to 30.11.2009; (f) to award mesne profits at the rate of
Rs.2,00,000/ (Rupees Two Lakhs Only) per month from the date of suit i.e.
03.12.2009 till the date of delivery of possession of the plaint schedule property and (g) award costs of the suit.
2.The averments made in the plaint, in brief, are as follows: The plaintiff is the landlord and the defendants are the tenants in the plaint schedule property. The defendants had obtained the plaint schedule property from the plaintiff in the month of November, 1958 on a monthly rent of
Rs.500/ (Rupees Five Hundreds Only) excluding electricity charges, water charges and maintenance charges. The rent is payable on or before the 10th of every succeeding English calendar month. The period of tenancy was extended by execution of fresh rental deeds from time to time and by enhancing the rents. At present the rent is Rs.1,70,000/ (Rupees One Lakh
Seventy Thousands Only) per month. An interest free advance rent of
Rs.10,00,000/ (Rupees Ten Lakhs only) was received by the plaintiff in five monthly instalments from the defendants. The advance rent amount was recoverable by adjustment at the rate of 50% from the monthly rents. The 4 said advance rent has been adjusted. There was correspondence and exchange of notices between the plaintiff and the defendants towards tenancy affairs and also for termination of tenancy requiring the defendants to put plaintiff back in vacant possession of the suit schedule property. Earlier notices of termination of tenancy were withdrawn by the plaintiff. The plaintiff had already expressed his intention that he was not willing to continue the tenancy and required the defendants to vacate and handover the vacant possession on 02.04.2009. The defendants failed to comply with the plaintiff's demand and on the other hand the defendants have responded with vague replies, thereby admitting the relationship. After the expiry of the agreed lease period, the Defendants’ tenancy is on month to month basis, starting from 1st day of English calendar month and ended with the same month. The 1st defendant is running business in the schedule property under the name and style 'Gangothri Show Room' owned by M/s U. P. Handicrafts
Development and Marketing Corporation Ltd.', an U. P. Government
Undertaking. Through letters dated 12.11.2007, 25.01.2008 and 03.06.2008, the defendants undertook to enhance the rent from 1st December, 2007 as per market value. As per the undertaking given by the defendants, the monthly rent has been enhanced from 01.12.2007 from Rs.34,207/ to
Rs.1,70,000/ (Rupees One Lakh Seventy Thousands Only) but, the defendants made part payment at the rate of Rs.34,207/ (Rupees Thirty
Four Thousands And Two Hundred And Seven Only) per month. Thus, the defendants are due in a sum of Rs.1,35,793/ (Rupees One Lakh Thirty Five 5
Thousands Seven Hundreds And Ninety Three Only) per month from 01.12.2007 to 30.11.2009 for 24 months aggregating to Rs.32,59,032/ (Rupees Thirty Two Lakhs Fifty Nine Thousands And Thirty Two Only).
Hence, the plaintiff has been left with no other alternative remedy except to determine the lease. The plaintiff in exercise of his rights had terminated the tenancy from 30.11.2009 through notice dated 15.10.2009. Thereafter, the defendants’ possession would be unlawful. It is further stated in the said notice that if the defendants consider that the termination date does not tally with the end of the defendants’ tenancy month, the defendants should vacate and deliver the vacant possession of the schedule property on the date on which according to the defendants the next tenancy month ends. After the receipt of notice, the defendants are trying to sublet the schedule property to third parties. Under the notice dated 15.10.2009, the plaintiff called upon the defendants to vacate the suit schedule property on 01.12.2009 and to deliver the possession thereof. It is also informed that in case of failure of compliance, the plaintiff shall be entitled to receive at the rate of
Rs.2,00,000/ (Rupees Two Lakhs Only) per month towards damages/mesne profits. In the said notice the plaintiff had also demanded the defendants to pay arrears of rent, water charges and maintenance charges up to date immediately. The defendants received the said notice but failed to comply with the said demands. On the other hand, the defendant had sent a reply on 16.11.2009, wherein the defendants admitted the relationship of landlord and tenant. Hence, the suit is filed for eviction and other reliefs.” 6
3.The 4th defendant had filed a written statement cum counter claim denying each and every allegation made in the plaint and praying the
Court to dismiss the suit of the plaintiff and further sought specific performance of an agreement to lease directing the plaintiff to execute a registered lease deed in favour of the defendants for the lease period up to 30.11.2013. The defendants 1 to 3 filed a memo adopting the written statementcumcounter claim of the 4th defendant. In the said written statementcumcounter claim the defendants inter alia urged as follows: “The suit is not maintainable either in law or on the facts of the case. The plaintiff has not made out any valid grounds for grant of the reliefs prayed for. The plaintiff is landlord of the defendants herein in respect of property bearing municipal No.59243 and 59244 admeasuring 5644 square feet situated at
Abids Main Road, Hyderabad. It is false to contend that the extent of the suit schedule property is 6000 square feet. The allegations that the defendants had obtained the plaint schedule property from the plaintiff in the month of
November, 1958 on a monthly rent of Rs.500/ (Rupees Five Hundreds Only) excluding electricity charges, water charges and maintenance charges and that the rent is payable on or before the 10th of every succeeding English calendar month and that the period of tenancy was extended by execution of fresh rental deeds from time to time and by enhancing the rents and that at present the rent is Rs.1,70,000/ (Rupees One Lakh Seventy Thousands
Only) per month and that an interest free advance rent of Rs.10,00,000/ (Rupees Ten Lakhs only) was received by the plaintiff in five monthly 7 instalments from the defendants and that the advance rent amount was recoverable by adjustment at the rate of 50% from the monthly rents and that the said advance rent has been adjusted are denied. It is true that the plaintiff got issued a notice on 02.04.2009 calling upon the defendants to handover the vacant possession. It is false on the part of the plaintiff to contend that the plaintiff informed the defendants that after expiry of extended lease period, the defendants’ tenancy is on month to month basis. The true facts are as under: ‘Originally in the year, 1958 the 1st defendant herein which was under directorate of Industries of U.P., Kanpur had obtained the suit schedule property which is approximately 5600 square feet in extent, on rent from
Mohd. Shujauddin Khan. Thereafter, in the year, 1971, the Director of
Industries of the Government of UP, Kanpur handed over all the activities of the above said show room to U.P. Exports Corporation Ltd., with the knowledge of the landlord. In the year, 1988, the U.P. Exports Corporation
Ltd., and the Landlord entered into a lease agreement for 15 years from 01.12.1988 to 30.11.2003 and the rent of the showroom in the said premises from 1988 to 1993 was Rs.13,156.50 paise and from 1993 to 1998 was
Rs.15,782/ per month. Thereafter, from 1998 to 2003 the rent was
Rs.19,733/ per month. After completion of the aforesaid agreed period under the agreement, the plaintiff and the defendants mutually agreed for extension of lease agreement for a period of ten years from 01.12.2003 to 30.11.2013 at the enhanced rent of Rs.34,207/ (Rupees Thirty Four Thousands And Two
Hundred And Seven Only) per month. It was also agreed to increase the rent 8 mutually as per clause I of the lease agreement after 5 years i.e., from
February, 2009 onwards. The plaintiff visited the defendants' head office at
Lucknow on 11.02.2005 and requested the defendants to continue the lease on some reasonable enhancement of rent and the defendants agreed for the same and agreed for the proposal of the plaintiff. Accordingly it was agreed by the plaintiff and the defendants that the rent for the showroom, basement and office area should be enhanced at the rate of Rs.6.50 paise per square foot from the existing rate of Rs.2.50 paise per square foot. It was also agreed by both the parties that in respect of the rent of A.C. plant and store area it should be Rs.5.25 per square foot from existing price of Rs.2.00 paise per square foot. Since the earlier agreement came to an end by 30.11.2003 by efflux of time, the plaintiff insisted that the agreed enhanced rent should be paid w. e. f. 01.12.2003 and further insisted that the current lease should be for a period of ten years reckoned from 01.12.2003 and the defendant should pay Rs.10 lakhs as advance from out of which the monthly rental would be deducted till exhaustion of the said advance amount of Rs.10 lakhs.
The plaintiff has also insisted for further enhancement of rent after a period of 4 years from 11.02.2005 and the defendants agreed for the same.
Agreeing to the proposals of the plaintiff, the advance amount of Rs.10 lakhs was paid in five monthly instalments from February, 2005 to June, 2005. The plaintiff had acknowledged the receipt of Rs.10 lakhs. The defendants herein paid the rents as per the agreement duly deducting 50% from the advance amount from 01.07.2005. The monthly rent is Rs.34,207/. The defendant is 9 very regular in payment of rents to the plaintiff. The defendants had handed over a copy of the agreement for obtaining the signature for the execution of the agreement. Further the plaintiff addressed a letter dated 10.03.2005 assuring the defendants that if the lease deed is required to be registered at any point of time the same will be exclusively done at his cost since at the relevant point of time the plaintiff was supposed to have spent an amount of
Rs.70,000/ towards stamp duty and registration charges. Therefore, the agreement was executed on a stamp paper of the value of Rs.100/ only.
Further the plaintiff herein gave an undertaking by way of sworn affidavit to get the lease deed registered in due course of time and as and when required and got the said undertaking is notarized on 29.03.2005. Thus, the tenancy between the plaintiff and the defendants is subsisting and the same is valid till 30.11.2013. Therefore, the lease is not oral as contended by the plaintiff. According to the agreement entered into between the plaintiff and the defendants the enhancement of rent would arise only after 10.02.2009.
Having received an advance amount of Rs.10 lakhs as per the agreement
dated 11.02.2005, with ulterior motive, the plaintiff had got issued the legal
notices dated 22.04.2009 seeking eviction and recovery of amount of
Rs.7,47,600/. The defendants had got issued a reply notice dated 22.05.2009 denying the allegations of the plaintiff and called upon the plaintiff to execute the agreement as per the understanding dated 11.02.2005, which was acted upon by both the parties in letter and spirit. It was also stated in the said reply notice that the plaintiff is not entitled to claim either 10 eviction or the alleged arrears based on a concocted letter dated 09.06.2008 alleged to have been addressed by the defendants. Only to extract more money from the defendants, the plaintiff went on issuing notices after notices for eviction and other reliefs by deviating from the mutually agreed agreement
dated 11.02.2005. Both the parties had adhered to the mutual agreement
dated 11.02.2005; and both the parties had acted upon the said agreement.
Even till today the defendants are acting and fulfilling their part of obligations in letter and spirit of the said agreement. The plaintiff had acted upon the said agreement till March, 2008. However, with an ulterior motive and for the reasons best known to the plaintiff, the plaintiff had suddenly took ‘u’ turn and started flashing notices to the defendants with concocted and unsustainable reasons, and was thereby demanding exorbitant rents from the defendants. In view of these facts, it is crystal clear that the tenancy between the plaintiff and defendants is valid and subsisting till 30.11.2013. The defendants are always ready and willing to perform their part of contract in accordance with mutual agreement dated 11.02.2005 and are performing their part of the contract. It is only the plaintiff, who had deviated and failed to perform his part of contract and failed to execute the registered lease deed in favour of the defendants. Inspite of repeated demands, the plaintiff failed to perform his part of contract as agreed to on 11.02.2005. Therefore, the defendants are entitled for specific performance of agreement as per mutual understanding dated 11.02.2005 and for due execution of registered lease deed in favour of the defendants up to 30.11.2013 on the same terms and 11 conditions mentioned in the lease agreement and undertaking affidavit dated 29.03.2005 given by the plaintiff. Hence, the suit may be dismissed and the counter claim may be decreed with exemplary costs directing the plaintiff to execute a registered lease deed in favour of the defendants for the lease period up to 30.11.2013. And, if the plaintiff fails to execute the registered lease deed in favour of the defendants for any reason, the Court may be pleased to register the lease deed in favour of the defendants in respect of the schedule property as per law.”
4.The averments in the rejoinder to the counter claim filed by the plaintiff, in brief, are as follows: “The averments made in the counter claim are all false and baseless and are invented for the purpose of the said claim.
The plaintiff had failed to perform his part of contractual obligations is not correct. On the other hand, the defendants, deliberately and intentionally, have not come forward to perform their obligations as borne out by the record. The alleged lease agreement and affidavit are neither acted upon nor enforceable in law and the same are also not admissible in evidence for want of registration. Apart from that, the agreement is not a concluded contract as the defendants did not sign as lessees on the same. Further the alleged counter claim is barred by limitation and the defendants have no existing cause of action.” 12
5.Taking into consideration the above pleadings the above pleadings, my learned predecessor had framed the following issues for trial:
1.Whether the plaintiff is entitled for the eviction of the defendants?
2.Whether the plaintiff is entitled for suit claimed amounts?
3.Whether the defendants are entitled for the counter claim made?
4.Whether the counter claim is within limitation?
5.Whether the plaintiff is entitled for the injunctions sought for?
6.To what relief?
6.At the time of trial before this Court, the sole plaintiff was examined as PW1 and the incharge of Gangotri Show Room [the 4th defendant] was examined as DW1 on behalf of the defendants. Exhibits A1 to A30 were marked on the side of the plaintiff and exhibits B1 to B11 were marked on the side of the defendants.
7.I have heard the submissions of the learned counsel for both the sides. I have carefully perused the pleadings of both the sides. I have carefully perused the oral and documentary evidence. I have carefully perused the written submissions filed by the plaintiff. Before the pleadings and evidence are analyzed and are examined in juxtaposition it is necessary 13 to refer to the details of the documentary evidence which are as follows:
“Exhibit A1 is original letter dated 13.03.1983. Exhibit A2 is original lease agreement dated 22.02.1988. Exhibit A3 is original additional indenture dated 01.12.1988. Exhibit A4 is lease agreement dated 11.02.2005. Exhibit A5 is letter dated 11.02.2005 in Hindi. Exhibit A6 is English translation of Ex.A5.
Exhibit A7 is office copy of letter dated 07.10.2007 to defendant No.3 by the plaintiff. Exhibit A8 is office copy of letter dated 22.11.2007 to defendant No.3 by the plaintiff. Exhibit A9 is letter issued by defendant No.3 on 25.01.2008 in favour of the plaintiff. Exhibit A10 is letter dated 12.11.2007. Exhibit A11 is
English translation of Ex.A10. Exhibit A12 is office copy of letter dated 0306 2009 issued on 25.04.2008 along with postal receipt. Exhibit A13 is letter
dated 03062008 issued by the defendant in favour of the plaintiff. Exhibit
A14 is office copy of reply letter dated 09.06.2008. Exhibit A15 is rent receipt
dated 01042009. Exhibit A16 is photostat copy of (proceedings) issued by
MCH dated 10.02.2004. Exhibit A17 is certified copy of lease deed dated 10 022004. Exhibit A18 is office copy of legal notice dated 02.04.2009. Exhibit
A19 is reply notice dated 22.05.2009. Exhibit A20 is office copy legal notice
dated 15.10.2009. Exhibit A21 is original reply notice dated 16.11.2009.
Exhibit A22 is letter dated 09.02.2004. Exhibit A23 is letter dated 19.02.2003.
Exhibit A24 is letter dated 17.08.2006. Exhibit A25 is letter dated 16.11.2009.
Exhibit A26 is letter dated 09.05.2011 along with translation. Exhibit A27 is letter dated 21.05.2011. Exhibit A28 is letter dated 15.06.2011. Exhibit A29 is reply letter by the plaintiff dated 16.06.2011. Exhibit A30 is letter dated 14 01.10.2011 issued by the defendant. Exhibit B1 is affidavit/undertaking dated 29.03.2005. Exhibit B2 is lease agreement dated 11.02.2005. Exhibit B3 is office copy of legal notice dated 25.06.2008. Exhibit B4 is office copy of reply notice dated 22.05.2009. Exhibit B5 is office copy of legal notice dated 16.11.2009. Exhibit B6 is rent receipt dated 02.11.2010. Exhibit B7 is copy of bill dated 02.11.2010 for Rs.34,207/. Exhibit B8 is rent receipt dated 08.10.2010 for Rs.34,207/. Exhibit B9 is bill dated 08.10.2010. Exhibit B10 is authority letter dated 07.01.2012. Exhibit B11 is authority letter dated 23.12.2009.”
8.Before taking up the issues for determination, it is pertinent to mention that in this suit for eviction and other reliefs filed by the plaintiff against the defendants, the defendants having filed a written statementcum counterclaim through the 4th defendant had sought specific performance of an agreement of lease. In the counter claim they had inter alia contended that since the lease period is upto 30.11.2013 the quit notice issued during the subsistence of the lease or during the currency of the agreed term of lease is premature and invalid. Therefore, the issues 3 and 4, which relate to the counter claim, if answered in favour of the defendants, the said findings on the said issues will have a bearing on the issues relating to the relief of eviction and other reliefs claimed by the plaintiff. Hence, it is just and proper 15 to take up the issues number 3 and 4 in the first instance. Hence, the issues numbers 3 and 4 are first taken up.
9. ISSUE NOS. 3 AND 4:
(a)One of my learned predecessors having regard to the pleading in the counter claim and the pleading in the plaintiff’s rejoinder had framed the following two issues:
3.Whether the defendants are entitled for the counter claim made?
4.Whether the counter claim is within limitation?
(b)In the counterclaim, the defendants sought a prayer to direct the plaintiff to execute a registered lease. The two important documents on which the defendants’ placed reliance in support of their relief claimed in the counterclaim are exhibits B1 and B2. Exhibit B1, notarized sworn undertaking affidavit of the plaintiff, was confronted to PW1 during his crossexamination and was exhibited. Exhibit B2, the lease agreement was also similarly marked when it was confronted to PW1 during the cross examination of PW1 done before the learned advocate commissioner, who was appointed by one of my learned predecessors to record the cross examination, reexamination etcetera of PW1. During the course of 16 arguments, it is noticed that the said agreementexhibit B2 is not sufficiently stamped and stamp duty and penalty are payable on the said document. As per the voluntary offer made by the defendants and as per the orders of this
Court the defendants were directed to pay the stamp duty and penalty on the said document and accordingly a stamp duty of Rs.62,315/ and a penalty of
Rs.1,86,945/ [Rs.2,49,260/ in all] was paid towards the stamp duty and penalty and the same was collected by the Collector under the Indian Stamp
Act 1899 and the District Registrar, Hyderabad. Thus, the stamp duty requirement of the said exhibit B2 is duly complied with.
(c)Now the contentions of the defendants which need consideration are as follows: “In the year 1988 the U.P. Exports Corporation
Limited and the Landlord had entered into a lease agreement for 15 years from 01.12.1988 to 30.11.2013 and the rent of the show room/the said premises from 1988 to 1993 was Rs.13,15650 paise and from 1993 to 1998 was Rs.15,782/ per month; thereafter from 1998 to 2003 the rent was
Rs.19,733/ per month. After completion of the aforesaid period of agreement the plaintiff and the defendants mutually agreed for extension of lease agreement for a period of ten years from 01.12.2003 to 30.11.2013 at the enhanced rent of Rs.34,207/ (Rupees Thirty Four Thousands And Two
Hundred And Seven Only) per month. It was also agreed to increase the rent mutually as per the clause 1 of the lease agreement after 5 years i.e., from 17
February 2009 onwards. Since the earlier agreement came to an end by efflux of time by 30.11.2003 the plaintiff insisted that the agreed enhanced rent should be paid w. e. f. 01.12.2003 and further insisted that the current lease should be for a period of 10 years and be reckoned from 01.12.2003 and the defendant should pay Rs.10.00 lakhs as advance from which the monthly rent would be deducted till exhaustion of the said advance amount of
Rs.10,00,000/ (Rupees Ten Lakhs Only). The plaintiff has also insisted for further enhancement of rent after a period of 4 years from 11.02.2005. The defendant having agreed for the said proposal of the plaintiff had paid the advance of Rs.10,00,000/ (Rupees Ten Lakhs Only) in five instalments from
February to June 2005. The defendants had paid rents as per the agreement after duly deducting 50% from the advance amount from 01.07.2005. The monthly rent is Rs.34,207/(Rupees Thirty Four Thousands And Two
Hundred And Seven Only).”
(d)On the contrary the plaintiff precisely contended in the rejoinder that the defendants, deliberately and intentionally, had not come forward to perform their obligations and that the transaction in regard to the execution of the lease deed and the notarized undertaking affidavit was neither acted upon nor is enforceable in law and that there is no concluded contract as the document sought to be relied upon is not signed by the 18 defendants and that the relief in the counterclaim is barred by Law of
Limitation.
(e)Now the short question is “Whether the defendants are entitled to specific performance of the said agreement and the plaintiff can be directed to execute a regular registered lease deed for the period ending upto 30.11.2013?” As already noted the defendants inter alia contended that not only the lease agreement under exhibit B2 had come into existence in that regard, but a notarized undertaking affidavit under exhibit B1 was also executed by the plaintiff undertaking to execute a regular registered lease deed in due course of time and as and when required. In view of the defendants’ contentions and the plaintiff’s defence, it is necessary to refer to the contents of exhibits B1 and B2.
Firstly:In exhibit B1, the notarized undertaking affidavit addressed by the plaintiff to the Managing Director of the defendants M/S
U.P.E.C. Limited, the recitals [verbatim] are as follows:
1. That U.P.E.C. Limited (Gangothri Show Room) is the lawful tenant of my premises bearing No.59243 & 59244 at Abids Main Road, Hyderabad (A.P.) under provision of a Lease Deed for a period of ten years with effect from 1 st December, 2003.
2. I solemnly undertake to get the Lease Deed registered in due course of time as and when require.
19
3. I hereby indemnified the tenant M/S. U.P.E.C. Limited (Gangothri Show Romm) for any legal consequences and financial implication if any ever arises at my risk and cost with respect to registration of this Lease Deed.
4. Till such time the Lease Deed executed in duplicate between us is proposed to be
notorized by an advocate Notary.
5. The above facts stated above are true and correct to the best of my knowledge and belief.”
Secondly:Coming to exhibit B2, the relevant terms [verbatim] are as follows: “
1. That w.e.f., 01.12.2003 the monthly rent of the aforesaid premises would be raised as follows:
a. Showroom, basement and Rs.2439050
office area 3737 square feet @ Rs.6.50 per square feet
b. A.C.Plant and Store Area Rs.991640
1907 square feet @ Rs.5.20 per square feet
Rs.3420690
Or say Rs.3420700
2. That in addition to the above monthly rent a total sum of Rs.10.00 lac shall be paid to the
landlord in 5 monthly installments as follows:
(i) Rs.1.5 lac in February, 2005
(ii) Rs.2.5 lac in March, 2005
(iii) Rs.2.00 lac in April, 2005 20
(iv) Rs.2.00 lac in May, 2005
(v) Rs.2.00 lac in June, 205
3. The recovery of advance rent @ 50% of monthly rent shall be effected from the next month immediately after the last installment
of advance rent is paid to the landlord.
4. That the monthly rent shall be paid to the landlord by cheque or draft drawn on a local bank.
5. That the landlord shall get the ceiling of the premises painted and rear floor of showroom premises repaired and termite treatment done and facade decoration with new tiles within three months.
6. That the lessee agrees to enhance monthly rent for the premises after a period of 4 years from 01.12.2003 (1 st December 2003) by mutual consultation and consent.
Thirdly:The exhibit B1affidavit was executed by the plaintiff admittedly on 29.03.2005. It is pertinent to note that the ten years lease period is to be reckoned from 01.12.2003 to 30.11.2013. Thus, this notarized affidavit was not executed at the commencement of the said lease period of ten years or when the exhibit B2 lease agreement was executed on 11.02.2005. Be that as it may, a reading of clause number 6 shows that the lessee agreed to enhance monthly rent for the premises after a period of four years from 01.12.2003 by mutual consultation and consent. Thus after four years from 01.12.2003 i.e., from 01.12.2007 the lessee [defendant] agreed to enhance the monthly rent on mutual consultations and consent. Hence, if the 21 terms agreed to are acted upon and are enforceable the defendants are obliged to pay enhanced rent per month and not Rs.34,207/ (Rupees Thirty
Four Thousands And Two Hundred And Seven Only) per month which was the pre existing monthly rent. The correspondence between the parties particularly the exhibit A10 [=A11 English translation] letter dated 12.11.2007 and the pleadings of both parties would show that there were negotiations for revision of monthly rent from December 2007 and that the defendants called the plaintiff for a meeting. Further, the plaintiff in his letter dated 25.04.2008 under exhibit A12 requested to settle the issue of enhancement of rent and further stated on failure to settle the issue of rent enhancement and renewal of the lease the plaintiff will be constrained to go to a Court of Law and seek justice. On that the defendants vide letter under exhibit A 13 dated 03.06.2008 requested the plaintiff to give the lowest offer. The plaintiff had addressed exhibit A14, a letter dated 09.06.2008, giving an offer of quantum of rent while stating that the offer given was as per minimum prevailing rents in the locality and there is no scope for any negotiations as the rates quoted in the said letter are minimum and acceptable. Subsequently legal notices and final notices were exchanged. The plaintiff claimed in the suit that as per the undertaking of the defendants the monthly rent is Rs.1,70,000/ (Rupees
One Lakh Seventy Thousands Only) from 01.12.2007; In the quit notice under the original of exhibit A20, the plaintiff got mentioned that the present monthly rent is Rs.34,204/ (Rupees Thirty Four Thousands And Two Hundred And
Four Only) but, had interalia stated that as per the undertaking of the 22 defendants the monthly rent is Rs.1,70,000/(Rupees One Lakh Seventy
Thousands Only) from 01.12.2007 but the defendants are making part payments @ Rs.34,207/ (Rupees Thirty Four Thousands And Two Hundred
And Seven Only). Where as the defendants claimed that the rent is
Rs.34,207/(Rupees Thirty Four Thousands And Two Hundred And Seven
Only) and continued to pay the said rent only, even after 01.12.2007. Thus, the negotiations/consultations did not fructify and there was no mutual agreement or consent on the enhancement of rent and the quantum of rent to be paid from 01.12.2007. Further the plaintiff had addressed a letter dated 09.06.2008 under the original of exhibit A14 making a final offer and stated that there is no scope for any negotiations. The defendants did not seek specific performance within a reasonable time from the date of receipt of the said letter. Further, the plaintiff had got issued a final quit notice dated 15.10.2009 under the original of exhibit A 20 and had first approached the
Court in December, 2009 by filing a suit for eviction and other reliefs. Then the defendants had claimed the present relief in their counter claim filed on 02.02.2010. Though the counter claim is within three years either from 01.12.2007 or from the date of exhibit A 14 letter of the plaintiff, still the defendants are not entitled to the equitable relief under the facts and circumstances of the case. Be that as it may, it is thus clear that the parties did not enter into a fresh registered lease agreement specifying the period and the monthly rent. The fact remains that the intended object mentioned in the clause 6 of the exhibit B2lease agreement could not be achieved by 23 mutual consultations and consent. Therefore, both parties could not proceed further and act upon the terms of the said exhibit B2 lease agreement. When there was no possibility of implementation of the clause 6 of exhibit B2 by mutual consultation and consent and when there was no consensus ad idem on the aspect of enhancement of rent and the quantum of monthly rent payable from 01.12.2007 even after lapse of several months and when the parties after lapse of several months from December 2007 had ultimately resorted to resolving the rival claims before a Court of Law that too in the year 2009, the question of enforcing the parties or compelling the parties to come to an agreement on the quantum of rent by mutual consultations and consent does not arise. When, there was no possibility of resolving the issue as agreed to under the exhibit B2, the defendants took advantage of the situation and indulged in prolonged exchange of correspondence and had continued to pay the previous existing monthly rent without even any reasonable enhancement of monthly rent and did not even seek the equitable remedy by having recourse to a legal proceeding at the first and earliest opportunity. Consequently, the rent could not be enhanced and the quantum of rent payable from 01.12.2007 could not be fixed by mutual consultations and consent. Above all, the exhibit B2 is not signed by the defendants, and, further, there is no mention in exhibit B2lease agreement that the lease period is ten years and that the agreed lease period would be upto 30.11.2013. Therefore, the question of claiming the benefit of unexpired period of lease upto 30.11.2013 does not arise under facts, law and equity.
24
Even otherwise, taking into consideration the contents of both exhibits B1 and B2, the benefit of the balance unexpired period of lease from 01.12.2007 upto 30.11.2013 that was intended to be conferred on defendants and the right of the defendants to claim the benefit to continue as lessees upto 30.11.2013 was dependent upon the agreed term in regard to enhancement of rent by mutual consultations and consent; and on failure of the parties to reach an agreement on the said aspect by way of mutual consultations and consent and when there was no consensus ad idem on the aspect of the enhanced rent to be paid by the defendants from 01.12.2007, the defendants are not entitled to claim that the agreed lease period is upto 30.11.2013. Thus the defendants contentions that the agreed lease period is upto 30.11.2013 and that the plaintiff is not entitled to terminate the tenancy before the said date is devoid of merit and such a contention cannot be countenanced under facts, law and equity. In view of the afore mentioned detailed discussion coupled with reasons this Court holds that the defendants are not entitled to the relief claimed in the Counter claim. The issue Number 3 is accordingly answered against the defendants and in favour of the plaintiff. Nevertheless, the issue number 4 is answered holding that the claim in the counter claim is not barred by law of imitation.
10. ISSUE NO.1:
The issue is as under: “Whether the plaintiff is entitled for the eviction of the defendants?” The plaintiff got issued the final quit notice dated 25 15.10.2009 to the defendants and had terminated the tenancy by end of 30.11.2009 and demanded the defendants to vacate and hand over vacant possession of the schedule property on 01.12.2009. The office copy of the said notice is exhibited as exhibit A20. The defendants having received the said notice had issued a reply notice dated 16.112009. The same is exhibited as exhibit A21 [=A25]. There is no written lease deed for the period from 01.12.2007. More particularly, there is no registered lease deed. In the light of the contentions and the rival contentions it is necessary to refer to the relevant provision of Section 106 of The Transfer Of Property Act, which reads as under:
''Duration of certain leases in absence of
written contract or local usage:
In the absence of a contract or local law or
usage to the contrary a lease of immovable
property for agricultural or manufacturing
purposes shall be deemed to be a lease from
year to year terminable, on the part of either
lessor or lessee, by six months' notice expiring
with the end of a year of the tenancy; and a
lease of immovable property for any other
purpose shall be deemed to be a lease from
month to month, terminable, on the part of
either lessor or lessee, by fifteen days' notice
expiring with the end of a month of the tenancy.
26
Every notice under this Section must be
in writing signed by or on behalf of the person
giving it, and either be sent by post to the party
who is intended to be bound by it or be
tendered or delivered personally to such party,
or to one of his family or servants, at his
residence, or (if such tender or delivery is not
practicable) affixed to a conspicuous part of
the property.''
The defendants had continued in the property as tenant after the agreed term of lease had expired and since the parties had not admittedly entered into a fresh and valid written lease agreement, the defendants became a month to month tenant. By the said quit notice dated 15.10.2009 the plaintiff had terminated the tenancy by 30.11.2009. The instant suit for eviction was instituted on 03.12.2009. Instead of giving 15 days time the plaintiff had given more than 15 days time to the defendant for vacating the schedule property.
Even when there is no default on the part of the defendant in payment of rents, still the defendant is liable to be evicted once a quit notice was issued under section 106 of the Act seeking eviction. This legal position finds support from the decision in the case of Hazmer Infracon India Pvt.
Limited, Hyderabad vs. V. Prabhakar Rao [2012 (2) ALD 25]. ‘On one hand the plaintiff contends that the there was an agreement in regard to enhancement of rent but further contends that there is no agreement in regard to extension of lease upto 30.11.2013. Per contra the defendants 27 contend that there is no agreement in regard to enhancement of rents and that the rent was not enhanced but further contend that there is an enforceable agreement in regard to extension of lease period upto 30.11.2013. Thus both parties raised contentions and defences which are beneficial to each of them; therefore, it is evident that there was no agreement or consensus ad idem either in regard to enhancement of rent as contended by the plaintiff or in regard to extension of lease period as contended by the defendants. Consequently it must be held that the rent remained the same and the tenancy continued as month to month to tenancy.’ In view of the findings supra under issue number 3 that the defendants are not entitled to claim that the tenancy is subsisting upto 30.11.2013 the contentions of the defendants that the quit notice issued during the subsistence of the lease or during the currency of the agreed term of lease is premature and is invalid are devoid of merit and cannot be countenanced. Now the law is well settled that a quit notice has to be liberally construed as per the rule of construction. Once a quit notice terminating the tenancy was issued the tenant becomes a tenant holding over. No circumstances are brought out on record by the defendants to show that the quit notice is invalid. In the absence of any valid defence and acceptable evidence to show that the quit notice is not valid under facts and in law and on the contrary when the quit notice satisfies the factual and legal requirements it must beheld that the quit notice is valid. As a sequel to the said finding it must be held that the plaintiff is entitled to a decree for eviction 28 of the defendants from the plaint schedule property. Issue number 1 is accordingly answered in favour of the plaintiff and against the defendants holding that the quit notice is valid and that the plaintiff is entitled to a decree for eviction of the defendants from the plaint schedule property.
11. ISSUE NO.2:
(a)The issue as framed by one of my earned predecessors is as under: “Whether the plaintiff is entitled for suit claimed amounts?”
(b)The plaintiff claimed arrears of rents in a sum of
Rs.32,59,032/ (Rupees Thirty Two Lakhs Fifty Nine Thousands And Thirty
Two Only) from 01.12.2007 to 30.11.2009 i.e., till the date of termination of tenancy @ Rs.1,70,0000/ (Rupees One Lakh Seventy Thousands Only) per month. The defendants had admittedly paid rents at the rate of Rs.34,207/ (Rupees Thirty Four Thousands And Two Hundred And Seven Only) per month. After deducting the said payments the plaintiff had claimed the above said arrears on the basis of the contention that on the defendants undertaking the rent was enhanced to Rs.1,70,0000/ (Rupees One Lakh
Seventy Thousands Only) per month. The legal burden is upon the plaintiff to prove that the rent was enhanced as claimed by the plaintiff and that the defendants are liable to pay the rents @ Rs.1,70,0000/ (Rupees One Lakh 29
Seventy Thousands Only) per month. Plaintiff in his evidence placed reliance on exhibits A9 to A11 in support of the claim. But the plaintiff admitted that none of the said documents support the claim that the defendants had agreed or undertaken to pay rent @ Rs.1,70,0000/ (Rupees One Lakh
Seventy Thousands Only) per month. None of the contents of the correspondence do support the claim of the plaintiff. If the plaintiff’s contention that the rent was enhanced by mutual consultation or consent is to be accepted then the contention of the defendants that the defendants are entitled to continue as lessees upto 30.11.2013 deserves to be accepted. At one breath the plaintiff contends that the there is no understanding or agreement extending the lease period upto 30.11.2013 and at another breath contends that the there was an undertaking by the defendants to pay enhanced rents. The said self serving contention of the plaintiff cannot, therefore, be countenanced more particularly in the absence of proof of the quantum of rent @Rs.1,70,000/ (Rupees One Lakh Seventy Thousands
Only) per month. The defendants admittedly paid the rents at the rate of
Rs.34,207/ (Rupees Thirty Four Thousands Two Hundred And Seven Only) for the entire period. There is no reliable, cogent, convincing and acceptable evidence adduced by the plaintiff in support of the claim for arrears of rents.
Under issue number 3 findings are recorded by this Court to the effect that the parties failed to reach an agreement on the aspect of enhancement of rent by way of mutual consultations and consent and that there was no consensus ad idem on the aspect of the enhanced rent to be paid by the 30 defendants from 01.12.2007 and that the defendants are not entitled to claim that the agreed lease period is upto 30.11.2013. As already noted on one hand the plaintiff contends that the there was an agreement in regard to enhancement of rent but further contends that there is no agreement in regard to extension of lease upto 30.11.2013. Per contra the defendants contend that there is no agreement in regard to enhancement of rents and that the rent was not enhanced but further contend that there is an enforceable agreement in regard to extension of lease period upto 30.11.2013. Thus both parties raised contentions and defences which are beneficial to each of them; therefore, it is evident that there was no agreement or consensus ad idem either in regard to enhancement of rent as contended by the plaintiff or in regard to extension of lease period as contended by the defendants. Consequently it must be held that the rent remained the same and the tenancy continued as month to month to tenancy.
In the facts and circumstances and as a sequel to the findings under issue number 3 it must be held that the plaintiff failed to establish that the monthly rent payable by the defendants was Rs.1,70,000/ (Rupees One Lakh
Seventy Thousands Only) per month and that the defendants are liable to pay the arrears as claimed by the plaintiff. The issue is accordingly answered against the plaintiff and in favour of the defendants.
31
(c)The plaintiff also claimed mesne profits @ Rs.2,00,000/ (Rupees Two Lakhs Only) per month from the date of the suit till the date of deliver of possession. The law is well settled that from the date of the expiry of the time given under the legal quit notice to vacate the property, the possession of the defendants is in the nature of a tenant holding over. Hence the defendants are liable to pay mesne profits/damages for use and occupation and not rent as was done in the past. As a general rule the decision on the issue of future mesne profits will not be made in a suit of this nature filed by the landlord for eviction and recovery of possession and the
Trial Courts more often than not post pone the determination of the issue of future mesne profits by leaving it open for determination in a separate application to be filed in that regard under Order XX of the Code of Civil
Procedure. In general, the determination of future mesne profits is a pure question fact and no uniform pattern of assessment exists as the determination of profits depends on several variables including the nature, quality, size, location and need of the lessee etcetera. Hence, this is a fit case to leave the aspect of damages/mesne profits to be determined in an enquiry to be made as to the amount of damages/mesne profits from the date of the suit till date delivery of vacant peaceful possession of the property. Such a course meets the ends of justice. The point is accordingly answered holding that on an application to be made by the plaintiff an enquiry be made as to the amount of the damages/mesne profits payable by the defendants to the plaintiff.
32
12. ISSUE NO.5:
In the plaint the plaintiff sought perpetual injunctions to restrain the defendants from carrying out additions or alterations to the plaint schedule property and to restrain the defendants from inducting any person or persons into the plaint schedule property. The said reliefs claimed are reiterated in the affidavit filed in lieu of examination in chief of the PW1, the plaintiff. The only sentence stated by the plaintiff in his said affidavit is that the defendants are trying to sublease the property to 3rd parties after the receipt of the notice. Nothing else was stated by the plaintiff on the aspects of the reliefs of injunctions claimed in the suit. There is no adequate and acceptable evidence in support of the above reliefs claimed by the plaintiff.
Be that as it may, this Court already held under issue number 1 that the plaintiff is entitled to a decree for eviction of the defendants from the plaint schedule property. In view of the decree for eviction granted in favour of the plaintiff, the defendants will any how are liable to vacate and hand over vacant possession of the schedule property to the plaintiff after the time for eviction granted by this Court expires. Hence it follows that no reliefs of perpetual injunctions need be granted in favour of the plaintiff and against the defendants. Hence the issue is answered holding that the plaintiff is not entitled to the perpetual injunctions claimed against the defendants.
33
13. ISSUE NO.6:
In the result, the suit is decreed in part in favour of the plaintiff with proportionate costs holding that the plaintiff is entitled to a decree for eviction of the defendants and recovery of vacant peaceful possession of the plaint schedule property from the defendants; and accordingly the defendants are directed to vacate the plaint schedule property and put the plaintiff in vacant and peaceful possession of the same within four months from the date of this judgment; and it is further decreed that on an application that may be made by the plaintiff under Order XX of the Code Of Civil
Procedure an enquiry be made in accordance with the procedure established by law as to the amount of the damages/mesne profits payable by the defendants to the plaintiff from the date of the suit [03.12.2009] till the date of delivery of vacant peaceful possession of the schedule property by the defendants to the plaintiff. The rest of the suit claim of the plaintiff is dismissed without costs. The counter claim of the defendants is also dismissed without costs.
Typed, by the Personal Assistant, to my dictation, corrected and pronounced by me in the open Court, on this the 23rd day of September, 2013.
CHIEF JUDGE
CITY CIVIL COURTS: HYDERABAD.
34
Appendix of Evidence
Witnesses examined
For the plaintiff: For defendants:
PW1: M. Shujauddin Khan. DW1: Rajendran Pillai.
Documents Exhibited
For the plaintiff:
Exhibit A1 is original letter dated 13.03.1983.
Exhibit A2 is original lease agreement dated 22.02.1988.
Exhibit A3 is original additional indenture dated 01.12.1988.
Exhibit A4 is lease agreement dated 11.02.2005.
Exhibit A5 is letter dated 11.02.2005 in Hindi
Exhibit A6 is English translation of Ex.A5.
Exhibit A7 is office copy of letter dated 07.10.2007 to defendant No.3 by the plaintiff.
Exhibit A8 is office copy of letter dated 22.11.2007 to defendant No.3 by the plaintiff
Exhibit A9 is letter issued by defendant No.3 on 25.01.2008 in favour of the plaintiff
Exhibit A10 is letter dated 12.11.2007.
Exhibit A11 is English translation of Ex.A10.
Exhibit A12 is office copy of letter dated 03.06.2009 issued on 25.04.2008 along with postal receipt.
Exhibit A13 is letter dated 03.06.2008 issued by the defendant in favour of the plaintiff.
Exhibit A14 is office copy of reply letter dated 09.06.2008.
Exhibit A15 is rent receipt dated 01.04.2009.
Exhibit A16 is photostat copy of (proceedings) issued by MCH dated 10.02.2004
Exhibit A17 is certified copy of lease deed dated 10.02.2004.
Exhibit A18 is office copy of legal notice dated 02.04.2009.
Exhibit A19 is reply notice dated 22.05.2009.
35
Exhibit A20 is office copy legal notice dated 15.10.2009.
Exhibit A21 is original reply notice dated 16.11.2009.
Exhibit A22 is letter dated 09.02.2004.
Exhibit A23 is letter dated 19.02.2003.
Exhibit A24 is letter dated 17.08.2006.
Exhibit A25 is letter dated 16.11.2009.
Exhibit A26 is letter dated 09.05.2011 along with translation
Exhibit A27 is letter dated 21.05.2011.
Exhibit A28 is letter dated 15.06.2011.
Exhibit A29 is reply letter by the plaintiff dated 16.06.2011.
Exhibit A30 is letter dated 01.10.2011 issued by the defendant.
(Exs.A22 to A30 are marked by Advocate Commissioner)
For the defendants:
Exhibit B1 is affidavit/undertaking dated 29.03.2005.
Exhibit B2 is lease agreement dated 11.02.2005.
Exhibit B3 is office copy of legal notice dated 25.06.2008.
Exhibit B4 is office copy of reply notice dated 22.05.2009.
Exhibit B5 is office copy of legal notice dated 16.11.2009.
Exhibit B6 is rent receipt dated 02.11.2010.
Exhibit B7 is copy of bill dated 02.11.2010 for Rs.34,207/.
Exhibit B8 is rent receipt dated 08.10.2010 for Rs.34,207/.
Exhibit B9 is bill dated 08.10.2010.
Exhibit B10 is authority letter dated 07.01.2012.
Exhibit B11 is authority letter dated 23.12.2009.
(Exs.B1 to B9 are marked by the Advocate Commissioner)
CHIEF JUDGE
CITY CIVIL COURTS: HYDERABAD.