IN THE COURT OF THE VII SENIOR CIVIL JUDGE : CITY CIVIL COURT
HYDERABAD
PRESENT: SRI M.V. HARINATH, B.COM., LL.M.,
VII SENIOR CIVIL JUDGE
MONDAY, THE 27TH DAY OF APRIL, 2015
O.S.NO.170 OF 2011 AND O.S.NO.1559 OF 2012
Khayyum Abdul Rahman, S/o Habeeb Abdul Rahman, aged about 35 years, Occ : Business, R/o H.No.1931089/A/38, Jahanuma,
Hyderabad. ...Plaintiff in O.S.No.170 of 2011
and defendant in O.S.No.1559 of 2012
Vs.
Asmath, S/o Khader Khan, aged about 45 years, Occ : Business, Tenant in Mulgi No.235426/4, Amina Plaza, ShahAliBanda,
Hyderabad. ...Defendant in O.S.No.170 of 2011
and plaintiff in O.S.No.1559 of 2012
These two suits together coming on 01.04.2015 for final hearing
before me and upon hearing the arguments of Sri Syed Abid Ali, Advocate
for the plaintiff in O.S.No.170 of 2011 and for the defendant in
O.S.No.1559 of 2012, of Sri Mohd. Shujauddin, Advocate for the defendant
in O.S.No.170 of 2011 and for the plaintiff in O.S.No.1559 of 2012, and both the suits having stood over till this day for consideration, this Court delivered the following:
COMMON JUDGMENT
O.S.NO.170 OF 2011
This is a suit for ejectment of the defendant from the mulgi i.e., three shatter shop under MCH.No.235426/4 situated at Amina Plaza, Syed Ali
O.S.NO.170 OF 2011 AND O.S.NO.1559 OF 2012 Page No.2
Shabutra, Shah Ali Banda, Hyderabad, (hereinafter referred to as “the suit schedule mulgi”) and deliver vacant possession of the same to the plaintiff, recovery of arrears of rent of Rs.1,17,150/ and past and future mesne profits at the rate of Rs.15,000/ per month from 26.01.2011 to till the date of delivery of possession.
O.S.NO.1559 OF 2012
This is a suit for perpetual injunction to restrain the defendant, his brothers, men, etc., from interfering or dispossessing the plaintiff from the suit schedule mulgi.
2.The plaintiff in O.S.No.170 of 2011 is the defendant in O.S.No.1559 of 2012. The defendant in O.S.No.170 of 2011 is the plaintiff in
O.S.No.1559 of 2012. According to the parties the plaintiff is the landlord
and the defendant is the tenant in O.S.No.170 of 2011. The schedule of the property is same in both the suits. Both the suits were clubbed on the memo filed by the parties and joint trial was permitted as per docket order
dated 28.06.2013. The evidence is being recorded in O.S.No.170 of 2011.
Therefore, for the sake of convenience I refer the parties as arrayed in
O.S.No.170 of 2011 as plaintiff/landlord and defendant/tenant.
3.The case of the plaintiff/landlord as set out in the plaint in
O.S.No.170 of 2011 and the written statement in O.S.No.1559 of 2012, in
brief, is as follows:
The plaintiff/landlord being the absolute owner of the suit schedule mulgi, leased out the same to the defendant/tenant at a monthly rent of
Rs.7,500/ with effect from 01.04.2007, for which the defendant/tenant
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executed a rental agreement in favour of the plaintiff/landlord on 20.04.2007. The defendant/tenant also deposited a sum of Rs.2,00,000/ towards advance, which does not carry any interest and shall be refundable at the time of vacating the said mulgi. The defendant/tenant obtained the mulgi from the brother of the plaintiff/landlord by name Mohd. Yousuf
Shareef at a monthly rent of Rs.7,000/ per month in the year 2006 while the plaintiff/landlord was abroad. There was no practice of passing of rent receipts since the date of inception of the tenancy i.e., from 01.04.2007.
The defendant/tenant has been carrying the business of readymade garments under the name and style of “Match Point Readymade Garments” in the suit schedule mulgi. The defendant/tenant paid rents till the month of September, 2008 at the rate of Rs.7,500/ per month. He committed default in payment of rents from October, 2008 to December, 2010 for a period of 27 months amounting to Rs.2,02,500/. The defendant/tenant filed a suit in O.S.No.4791 of 2008 on the file of VIII Junior Civil Judge,
City Civil Court, Hyderabad, for perpetual injunction (which was later transferred to this Court and numbered as O.S.No.1559 of 2012) and also a case in R.C.No.225 of 2009 on the file of III Additional Rent Controller, City
Civil Court, Hyderabad, for depositing of rents at Rs.3,450/. The defendant/tenant deliberately shown the wrong quantum of rent in the above said suit and before the Rent Controller and deposited a sum of
Rs.85,350/. Therefore, the defendant/tenant has to pay the remaining amount of Rs.1,17,150/ towards arrears of rent for the period from
October, 2008, to December, 2010 after deducting the said sum of
Rs.85,350/ out of the total arrears of rent of Rs.2,02,500/. The
O.S.NO.170 OF 2011 AND O.S.NO.1559 OF 2012 Page No.4
defendant/tenant agreed to vacate the suit schedule mulgi on or before 10.01.2009 but failed to keep up the promise. Therefore, the plaintiff/landlord issued a legal notice dated 07.01.2011 terminating the tenancy after expiry of 15 days from the date of receipt of the notice. The defendant/tenant received the notice on 09.01.2011, but given evasive reply on 17.01.2011. Inspite of receipt of legal notice the defendant/tenant did not vacate the suit schedule mulgi and so he is liable to pay mesne profits at Rs.15,000/ per month from 26.01.2011. The defendant/tenant forged and fabricated a note book to show that he paid rents to the plaintiff/landlord. Hence, the suit.
4.The brief case of the defendant/tenant as set out in the written statement in O.S.No.170 of 2011 and the plaint in O.S.No.1559 of 2012 is as follows:
The defendant/tenant vehemently denied that the plaintiff/landlord is the absolute owner and landlord and the defendant/tenant is the tenant in respect of the suit schedule mulgi. However, he admits that he is the tenant in the suit schedule mulgi at a monthly rent of Rs.3,450/. The defendant/tenant obtained the suit schedule mulgi on oral lease in the year 2006 at a monthly rent of Rs.3,450/. Whenever the defendant/tenant paid the rents, either the plaintiff/landlord or his brothers used to make the endorsement in the diary maintained by the defendant/tenant and there is no practice of passing of rents. He never executed any rental agreement in favour of the plaintiff/landlord. He deposited a sum of Rs.2,00,000/ in the month of April, 2006 towards refundable deposit. He invested a sum of
Rs.8,00,000/ for carrying on his business. He was permitted in payment of
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rents and paid rents upto November, 2008. On 28.12.2008 the plaintiff/landlord and his brothers demanded the defendant/tenant to enhance the rent from Rs.3,450/ to Rs.10,000/ and forcibly obtained the signatures on blank stamp paper of Rs.100/ and blank ledger papers and threatened that they will took possession by force. Again on 29.12.2008 the plaintiff/landlord and his brothers tried to dispossess the defendant/tenant from the suit schedule mulgi. Therefore, he filed a suit in
O.S.No.4791 of 2008 (old) and new number O.S.No.1559 of 2012 and also
R.C.No.225 of 2009 on the file of III Additional Rent Controller, Hyderabad,
under Section 8 (5) the A.P. Buildings (Lease, Rent and Eviction Control
Act) (for short “The Rent Control Act”) for depositing of rents at Rs.3,450/ per month. The Rent Controller allowed R.C.No.225 of 2009 by orders
dated 28.11.2009 permitting the defendant/tenant to deposit the rent at
Rs.3,450/ per month from December, 2008. The defendant/tenant never agreed to vacate the suit schedule mulgi on or before 10.01.2009. He never entered into any lease agreement in favour of the plaintiff/landlord on 20.04.2007 agreeing to pay the rent at Rs.7,000/ per month. The defendant/tenant received the legal notice dated 07.01.2011 alleging the termination of the tenancy and issued a suitable reply on 17.01.2011. The said legal notice terminating the tenancy is not valid and proper. The rent for the suit schedule mulgi is less than Rs.3,500/ per month and the suit schedule mulgi is constructed more than 15 years ago and so according to the Act 17 of 2005 of the Rent Control Act, this Court has no jurisdiction to entertain the suit. The plaintiff/landlord is not entitled for arrears of rent at Rs.1,17,150/ and mesne profits at the rate of Rs.15,000/ per month as
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claimed. In the circumstances, the suit is liable to be dismissed with exemplary costs and that the defendant/tenant is entitled for perpetual injunction against the plaintiff/landlord, his brother etc.
5.The following issues have been settled for trial in O.S.No.170 of 2011:
1. Whether there is jural relationship of landlord and tenant between the plaintiff and defendant?
2. Whether the plaintiff is entitled for the relief of eviction of the defendant from the suit schedule property?
3. Whether the plaintiff is entitled for arrears of rent of
Rs.1,17,150/, at Rs.7,500/ per month from October, 2008 to
December, 2010, as claimed?
4. Whether the plaintiff is entitled for future mesne profits at
Rs.15,000/ per month?
5. Whether the rent for the suit schedule premises is only Rs.3,450/ per month and so this Court has no jurisdiction to entertain this suit, as contended by the defendant?
6. To what relief?
6.The following issues have been settled for trial in O.S.No.1559 of 2012:
1. Whether the documents filed by the plaintiff are created by forging the signatures of defendant?
2. Whether the plaintiff is entitled for perpetual injunction as prayed for?
3. To what relief?
7.As already stated, joint trial was conducted in both these suits and the evidence was recorded in O.S.No.170 of 2011. PWs1 and 2 were
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examined and Exs.A1 to A9 were marked on behalf of the plaintiff/landlord. On behalf of the defendant/tenant DWs1 to 3 were examined and Exs.B1 to B8 were marked.
8.ISSUE NO.1 IN O.S.NO.170 OF 2011:
Though the defendant/tenant in the written statement denied that the plaintiff/landlord is not the absolute owner and landlord of the suit schedule mulgi, admittedly he filed the suit in O.S.No.1559 of 2012 and
R.C.No.225 of 2009 against the plaintiff/landlord by showing him as the
landlord of the suit schedule mulgi, from whom he obtained the suit schedule mulgi on lease. The plaintiff/landlord in support of his case examined himself as PW1 and he got examined his brother as PW2. PWs1 and 2 on oath specifically deposed that the plaintiff/landlord is the landlord of the suit schedule mulgi. The evidence of PWs1 and 2 in this regard is not challenged specifically by the defendant/tenant. Though the defendant/tenant examined himself as DW1 and he denied during cross examination that he is not the tenant of the plaintiff/landlord, admitted that he is tenant of the suit schedule mulgi and filed R.C.No.225 of 2009 against the plaintiff/landlord by showing him as landlord. He got marked the copy of the order in R.C.No.225 of 2009 as Ex.B1. Therefore, by the above evidence the plaintiff/landlord has successfully established that he is the landlord and that the defendant/tenant is the tenant of the suit schedule mulgi. Issue No.1 is accordingly found in favour of the plaintiff/landlord and against the defendant/tenant.
9.ISSUE NO.5 IN O.S.NO.170 OF 2011 AND ISSUE NO.1 IN
O.S.NO.1559 OF 2012:
The defendant/tenant took the plea that the rent for the suit schedule
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mulgi is only Rs.3,450/ per month and the suit schedule mulgi is aged more than 15 years old as on the date of filing the suit and so according to the Act 17 of 2005 of the Rent Control Act this Court has no jurisdiction to entertain the suit. On the other hand the learned counsel for the plaintiff/landlord argued that the suit mulgi is aged only 7 years old construction as on the date of filing the suit and that the rent for the suit schedule mulgi was Rs.7,500/ per month as on the date of filing the suit and so the Rent Control Act has no application.
10.In this connection, the learned counsel for the defendant/tenant argued that since the plaintiff/landlord did not take any specific plea in the plaint that the suit schedule mulgi was only 7 years old construction as on the date of filing the suit, he cannot take that plea now.
11.By filing the suit the case of the plaintiff/landlord is that this Court has jurisdiction to entertain the suit. Since the defendant/tenant took specific plea that the rent for the suit schedule mulgi was Rs.3,450/ per month as on the date of filing the suit and the suit schedule mulgi was more than 15 years old construction as on the date of filing the suit, the burden is on the defendant/tenant to establish the same.
12.The defendant/tenant, who examined himself as DW1 on oath deposed that he took the suit schedule mulgi on lease in the year 2006 at a monthly rent of Rs.3,450/ and that the rent for the suit schedule mulgi as on the date of filing the suit is the same. On the other hand the learned counsel for the plaintiff/landlord argued that the rent for the suit schedule mulgi at the inception was Rs.7,000/ and as on the date of filing the suit was Rs.7,500/. Admittedly the defendant/tenant is running a cloth shop in
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the suit schedule mulgi. The defendant/tenant in order to substantiate his case placed reliance on Ex.B3 document, which is a note book containing the rental receipts. The plaintiff/landlord vehemently denied Ex.B3 as a genuine document. In the written statement filed by the plaintiff/landlord in O.S.No.1559 of 2013 (in which he was defendant/tenant), he took a specific plea that Ex.B3 is a forged and fabricated document created for the purpose of this suit. So it has to be seen as to whether the defendant/tenant as DW1 proved Ex.B3 document.
13.As already stated DW1 though supported his version that he obtained signatures on Ex.B3 note book as and when he paid rents, in the chief affidavit he stated that he paid the rents to the brothers of the plaintiff/landlord, who used to make their endorsement in Ex.B3. He did not mention specifically the names of the brothers of the plaintiff/landlord who signed on Ex.B3 note book. According to his chief affidavit, the specific case of the defendant/tenant is that he paid rents to the brothers of the plaintiff/landlord and obtained endorsements in Ex.B3 diary. A suggestion was put to PW1 during his cross examination that his brother and his mother used to acknowledge the receipt of rent in the note book maintained by the defendant/tenant, which is denied by PW1. This suggestion put to PW1 during his cross examination falsifies the case of the defendant/tenant. In the plaint in O.S.No.1559 of 2012 the defendant/tenant stated that the plaintiff/landlord, his brothers and his family members used to come and collect the rents and acknowledge the same in the note book maintained by the defendant/tenant, which is not inconsonance with his evidence as DW1. PW2 is the elder brother of the
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plaintiff/landlord. During cross examination PW2 stated that he never collected rent from the defendant/tenant at any time. However, he stated that the defendant/tenant used to pay rent to his mother and at no point of time he was present when the defendant/tenant was paying rent to his mother. This evidence of PW2 during cross examination is not denied by the defendant/tenant. This evidence came during cross examination of
PW2 falsifies the case of the defendant/tenant as DW1, who deposed specifically that he used to pay rent to the brother of the plaintiff/landlord.
In the chief affidavit he did not depose specifically that at any time he paid rent to the mother of the plaintiff/landlord. A perusal of Ex.B3 rent receipt discloses that except the dates the other writings and signatures are in Urdu and it is from 01.04.2006 to 01.11.2008. As already stated the defendant/tenant did not depose specifically what were the endorsements made in the Ex.B2 and who signed those entries. During cross examination
DW1 stated that the names of the signed persons are different in Ex.B3, and he does not know the signatures on Ex.B3 receipt. He also admitted that under the transactions of Ex.B3 the names of the signed persons are not mentioned. The defendant/tenant also did not file the true translation copy of Ex.B3 to show that the alleged signatures signed in the endorsements on
Ex.B3 diary were made by either the plaintiff/landlord, his brothers or his mother. DW1 during further cross examination also admitted that he did not file any documentary evidence to show that the rent is Rs.3,450/ per month. Though the defendant/tenant filed Exs.B1 to B9 documents, except
Ex.B3 the other documents do not pertain to the payment of rent to the plaintiff/landlord. In view of the inconsistencies in the evidence of DW1,
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with the cross examination of PWs1 and 2, the recitals in the plaint in
O.S.No.1559 of 2012 and non proving that any of the endorsements in
Ex.B3 entries were made by either the plaintiff/landlord or his mother or brothers, it is found that the defendant/tenant miserably failed to prove that Ex.B3 is a genuine document. The other documents filed and marked by the defendant/tenant are certified copy of judgment in R.C.No.225 of 2009, copy of affidavit in I.A.No. of 2010 in R.C.No.225 of 2009, Ex.B4 is a telephone bill pertaining to the suit schedule mulgi, Ex.B5 is the visiting card of the defendant/tenant, Ex.B6 is the 8 photographs with negatives pertaining to the suit schedule mulgi, which are not disputed by the plaintiff/landlord. The other documents do not prove the rent of the suit mulgi.
14.Apart from his oral testimony, the defendant/tenant placed reliance on the oral testimony of DWs2 and 3. Though DWs2 and 3 in their chief affidavits specifically stated that the defendant/tenant obtained the suit schedule mulgi from the brother of the plaintiff/landlord by name Mohd.
Yousuf Shareef at a rent of Rs.3,450/ under oral lease in the year 2006, he did not mention specifically that the rent as on the date of filing the suit was only Rs.3450/. During cross examination DW2 admitted that he is the cousin of the defendant/tenant and he does not know whether the present rent of the suit schedule mulgi was Rs.7,500/ per month. Though they denied a suggestion that the rent for the suit schedule mulgi was Rs.7,500/ per month, admitted that he never saw any document with regard to rent at
Rs.3450/. Again he voluntarily stated that he saw a note book mentioning the rent at Rs.3,450/ with PW2, however, PW2 during cross examination
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specifically stated that he never received rent from the defendant/tenant at any time and was also not present when the defendant/tenant was paying rent to his mother at any time. It is also not the case of the defendant/tenant that he kept Ex.B3 note book with PW2 at any time.
During cross examination DW3 stated that he is giving evidence at the instance of the Advocate by name Shujauddin, who is the Advocate of the defendant/tenant. In view of the above admissions made by DWs2 and 3, it is highly unsafe to believe that they are deposing the truth. The defendant/tenant also placed reliance on Exs.B1 and B2 documents with regard to rate of rent at Rs.3,250/ as on the date of filing the suit. Ex.B2 is the affidavit filed in an interlocutory application in R.C.No.225 of 2009 under Section 11 (4) of the Rent Control Act to direct the defendant/tenant to vacate the petition schedule mulgi for non payment of the rent. In the said application he had shown the due rent at Rs.3,450/ for the period from December, 2008 to January, 2009. However, he specifically stated in the affidavit that the defendant/tenant had wrongly shown the rent at
Rs.3,450/ instead of Rs.7,500/ and that he will receive the same under protest. Ex.B1 is the order passed by the Rent Controller in R.C.No.225 of 2009. The said order speaks that since the jural relationship between the parties is admitted,without prejudice to the rights and contentions of both parties, the petitioner could be permitted to deposit the admitted monthly rent of Rs.3,450/ in respect of petition schedule premises from December, 2008.
The above said order passed by the Rent Controller is on the petition filed by the defendant/tenant to permit him to deposit the rent and on coming to the conclusion that there is no dispute with regard to the relationship
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between the parties as landlord and tenant, the Rent Controller permitted the defendant/tenant to deposit the rent. Therefore, the order under Ex.B1 does not decide the rent at Rs.3,450/. Except the evidence of DWs1 to 3 and Ex.B3 document, the defendant/tenant did not adduce any other oral or documentary evidence to prove that the rent for the suit schedule mulgi was Rs.3,450/ as on the date of filing the suit.
15.Except the above evidence, the defendant/tenant did not adduce any other evidence to prove that the rent for the suit schedule mulgi was
Rs.3,450/ per month. Though the defendant/tenant specifically took a plea that this Court has no jurisdiction on the ground that the rent for the suit schedule mulgi was Rs.3,450/, failed to prove the same by adducing cogent and convincing evidence.
16.According to the defendant/tenant the suit schedule mulgi was more than 15 years old as on the date of its occupation. In support of his case the defendant/tenant as DW1 in his chief affidavit stated that the suit schedule mulgi was aged more than 15 years old and so this Court has no jurisdiction. However, during cross examination he specifically admitted that he approached the brother and mother of the plaintiff/landlord for obtaining the suit schedule mulgi on rent in the year 2006 and at that time the mulgi was vacant and it was constructed one year before that time. He also specifically stated that it was constructed in the year 2005. During further cross examination he stated that the suit schedule mulgi was constructed about 7 years prior to the date of filing the suit. Apart from this admission made by defendant/tenant as DW1, the defendant/tenant extracted a similar evidence from the evidence of PW1. During cross
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examination of PW1 the defendant/tenant elicited through him that in the year 2005 he commenced the construction and completed it by the end of the year 2005. This evidence came during the cross examination of PW1 for the question posed by the counsel of the defendant/tenant is not denied specifically. PW2 during cross examination also stated as follows: “It is true the construction of building was completed in the month of April, 2006 and defendant was 1st tenant.” This evidence given by PW2 during cross examination by the defendant/tenant is not denied by the defendant/tenant specifically. Therefore, by the admission made by DW1 and the evidence of PWs1 and 2 which came during cross examination, as stated above, establishes that the suit schedule mulgi was only 7 years old as on the date of filing the suit. Therefore, according to Section 32 of the
Rent Control Act, the Rent Controller has no jurisdiction and this Court has only jurisdiction to entertain the suit. These issues are accordingly found in favour of the plaintiff/landlord and against the defendant/tenant.
17.ISSUE NO.2 IN O.S.NO.170 OF 2011:
The plaintiff/landlord as PW1 deposed that he issued the legal notice
dated 07.01.2011 to the defendant/tenant terminating the tenancy 15 days
after the date of receipt of the legal notice. The plaintiff/landlord got marked the office copy of the legal notice as Ex.A2, postal receipt as Ex.A3 and under certificate of posting as Ex.A4. This case of the plaintiff/landlord is not denied by the defendant/tenant. PW1 further deposed that the defendant/tenant issued a reply notice. He got marked the reply notice as
Ex.A5. In the reply notice the defendant/tenant took the same pleas as taken in the suit that the Civil Court has no jurisdiction and the Rent
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Controller only has jurisdiction and that the defendant/tenant is not liable to vacate the suit schedule mulgi. However, it is not the case of the defendant/tenant that he is continuing as tenant according to any registered lease deed. Therefore, even according to the defendant/tenant there is no written lease deed between the parties. Therefore, according to
Section 106 of the Transfer of Property Act, the tenancy can be terminated by 15 days notice. Since the plaintiff/landlord has proved that he issued
Ex.A2 legal notice terminating the tenancy by giving 15 days time to vacate the same he is entitled to evict the defendant/tenant from the suit schedule mulgi. This issue is accordingly found in favour of the plaintiff/landlord and against the defendant/tenant.
18.ISSUE NO.3 IN O.S.NO.170 OF 2011:
According to the plaintiff/landlord the defendant/tenant committed default in payment of rent from October, 2008 to December, 2010 which comes to Rs.2,02,500/; the defendant/tenant falsely calculated the rent at
Rs.3,450/ and deposited rent for the above said period amounting to
Rs.85,350/ towards the credit of R.C.No.225 of 2009 and so he is liable to pay the remaining balance of Rs.1,17,150/. The plaintiff/landlord supported his version on oath as PW1 and that his oral testimony has also corroborated by that of PW2. However, the same is denied by the defendant/tenant, who examined himself as DW1. Since the plaintiff/landlord has taken the plea that the rent for the suit schedule mulgi was Rs.7,500/ per month for the above said period, the burden is on him to prove the same. In support of his case the plaintiff/landlord got marked the alleged lease agreement executed by the defendant/tenant in
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favour of the plaintiff/landlord on 20.04.2007 averring that in the said agreement of lease the defendant/tenant agreed to pay monthly rent at
Rs.7,500/ per month from 01.04.2007. The plaintiff/landlord got marked the said document as Ex.A1. On the other hand the defendant/tenant as
DW1 and also in his written statement took a specific plea that his signatures were forged therein. A perusal of Ex.A1 discloses that it was executed in between the defendant/tenant and the plaintiff/landlord on 20.04.2007. The lease deed is a compulsorily registrable document. Ex.A1 is not a registered document. However, the plaintiff/landlord got it validated by paying stamp duty and penalty. It is settled position of law that if any document, which is compulsorily registrable, if not registered, it can be used for collateral purpose if stamp duty and penalty is paid, as per the decision rendered by our Hon’ble Apex Court reported in Avinash
Kumar Chouhan Vs. Vijay Krishna Mishra (2009 (1) LS 35 (SC)), wherein it was held that there is no prohibition under Section 49 of the Registration
Act, to receive an unregistered document in evidence for collateral purpose, but the document so tendered should be duly stamped and should comply with requirements of Section 35 of the Stamp Act, if not stamped, the document cannot be received in evidence even for collateral purpose.
19.The plaintiff/landlord at the time of marking the document did not say the collateral purpose for which he is marking the said document.
Therefore at the most Ex.A1 is useful to prove the collateral purpose of possession by the defendant/tenant in respect of the suit schedule mulgi as tenant. Except for that preposition Ex.A1 cannot be received in evidence for any other purpose. The other documents filed by the plaintiff/landlord
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are Ex.A2 legal notice, which shows that he demanded Rs.7,500/ rent for the period from October, 2008 to December, 2010, in Ex.A11 reply legal notice given by the defendant/tenant denying the said quantum of rent.
When the defendant/tenant had committed default in payment of rents from October, 2010, it is not known as to why the plaintiff/landlord did not issue legal notice immediately i.e., within a couple of months and kept quite for over one and half year for giving Ex.A2 legal notice. The plaintiff/landlord also placed reliance on Ex.A8 document. According to him the defendant/tenant executed it for deposit of a sum of Rs.1,00,000/ at the inception of tenancy. The defendant/tenant denied execution of the said document. There is no recital in Ex.A8 with regard to the rent for the suit schedule mulgi. Therefore, the said document is not useful to prove the rent as on the date of filing the suit. Ex.A9 is a letter allegedly executed by the defendant/tenant in favour of the plaintiff/landlord promising to vacate the suit schedule mulgi by 10.01.2009. The defendant/tenant denied to have executed the said letter. Ex.A9 document also did not contain any recital with regard to quantum of rent. Therefore, there is no need to decide the validity of the Ex.A9 letter at this stage as the plaintiff/landlord is held to be entitled to evict the defendant/tenant. The plaintiff/landlord did not try to adduce the independent testimony of the neighbours of the suit schedule mulgi and did not also try to mark other lease deeds to prove the prevailing rent at the suit schedule mulgi in order to enable the Court to find out whether the case of the plaintiff/landlord that the rent for the suit schedule mulgi as on the date of filing the suit was
Rs.7,500/ per month. Therefore, except the oral testimony of PWs1 and 2,
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who are none other than the brothers, which is denied by the defendant/tenant in toto with regard to quantum of rent, the plaintiff/landlord did not file any other document to prove that the rent for the suit schedule mulgi was Rs.7,500/ as on the date of filing the suit.
Therefore, he is not entitled for difference of arrears of rent at
Rs.1,17,150/ for the period from October, 2008 to December, 2010. This issue is accordingly answered.
20.ISSUE NO.4 IN O.S.NO.170 OF 2011:
The plaintiff/landlord claimed mesne profits at Rs.15,000/ per month with effect from 26.01.2011 till the date of delivery of possession.
The plaintiff/landlord, who examined himself as PW1 supported his version that he is entitled for mesne profits at Rs.15,000/ per month from 26.01.2011. Since the plaintiff/landlord has proved that he is entitled to recover the suit schedule mulgi pursuant to the issuance of termination notice by granting 15 days time to the defendant/tenant till 25.01.2011, he is entitled to mesne profits from 26.01.2011. However, the plaintiff/landlord did not give any reasons for arriving at the said sum of
Rs.15,000/ towards damages. Therefore, I think it just and proper to permit the plaintiff/landlord to file a separate application under Order XX
Rule 12 of the CPC for ascertaining the mesne profits. This issue is accordingly answered.
21.ISSUE NO.2 IN O.S.NO.1559 OF 2012:
It is the admitted case of the defendnat that he has been continuing in possession of the suit schedule mulgi after termination of tenancy with effect from 26.01.2011 by Ex.A2 legal notice issued by the
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plaintiff/landlord. Even though the tenancy was terminated, the defendant/tenant cannot be dispossessed from the suit schedule mulgi without due process of law. The defendant/tenant as DW1 deposed that the plaintiff/landlord tried to dispossess him from the suit schedule mulgi forcibly in the month of December, 2008 and so he filed a suit in
O.S.No.4591 of 2008 (the present suit) for perpetual injunction. Since it is
the case of the plaintiff/landlord that the defendant/tenant committed default in payment of rent from September, 2008, the apprehension of the defendant/tenant about dispossession cannot be ruled out. In the circumstances, it is found that the defendant/tenant is entitled for perpetual injunction against the plaintiff/landlord till the date upto which he cannot be dispossessed from the suit schedule mulgi, which can be ordered in O.S.No.170 of 2011. This issue is accordingly answered.
22.ISSUE NO.6 IN O.S.NO.170 OF 2011:
In the result, the suit is partly decreed with costs. The defendant shall vacate and hand over vacant possession of the suit schedule property to the plaintiff by 27.07.2015. The claim of arrears of rent is dismissed. The plaintiff is entitled for past and future mesne profits from 26.01.2011 till the date of delivery of possession. However, he has to file a separate application under Order XX Rule 12 of the CPC to ascertain the mesne profits.
23.ISSUE NO.3 IN O.S.NO.1559 OF 2012:
In the result, the suit is decreed. Perpetual injunction is granted in favour of the plaintiff restraining the defendant, his men etc., from interfering with plaintiff’s possession over the suit schedule mulgi till
O.S.NO.170 OF 2011 AND O.S.NO.1559 OF 2012 Page No.20
27.07.2015. In the circumstances of the case, the parties are directed to bear their own costs.
Dictated to the Personal Assistant, transcribed and typed by her,
corrected and pronounced by me in the open Court, this the 27th day of
April, 2015.
VII SENIOR CIVIL JUDGE
APPENDIX OF EVIDENCE
WITNESSES EXAMINED
FOR PLAINTIFF: FOR DEFENDANT: PW1: Khayyum Abdul RahmanDW1: Asmath Khan PW2: Mohammed Yousuf ShareefDW2: Mohd. Shoukath Hussain DW3: Syed Mohd. Ahmed
DOCUMENTS MARKED
FOR PLAINTIFF:
Ex.A1:Original rental agreement dated 20.04.2007. Ex.A2:Office copy of legal notice dated 07.01.2011. Ex.A3:Original RPAD receipt. Ex.A4:Original certificate of posting dated 07.01.2011. Ex.A5:Original reply notice dated 17.01.2011. Ex.A6:Return registered cover acknowledgment due. Ex.A7:Original passport of Khayyum Abdul Rahman. Ex.A8:Receipt dated 20.04.2007. Ex.A9:Letter dated 28.12.2008.
FOR DEFENDANT:
Ex.B1:Certified copy of order in RC.No.225 of 2009 on the file of III
Additional Rent Controller, City Small Causes Court,
Hyderabad. Ex.B2:Office copy of petition filed under Order 2 Rule 4 of the A.P. Buildings (rent, lease) Control Act, 1960 during cross examination on 03.06.2014. Ex.B3:Note book containing rental receipts. Ex.B4:Telephone bill dated 05.05.2007. Ex.B5:Visiting card. Ex.B6:Eight photographs with negatives.
VII SENIOR CIVIL JUDGE