Page 1 of 30 Common Judgment in O.S. No.1155 of 2013 & O.S. No.990 of 2014
IN THE COURT OF VI SENIOR CIVIL JUDGE:
CITY SMALL CAUSES COURT : HYDERABAD
Present: Mohd. Abdul Jaleel,
V Senior Civil Judge
FAC VI Senior Civil Judge
Thursday, the 29 th day of February, 2024.
Common Judgment in O.S. No. 1155 of 2013 and O.S. No.990
of 2014
BETWEEN
(1) Sri R. Gyaneshwar (died) per L.RS.
(2) Sri R. Vijay Kumar S/o late R. Gyaneshwar, aged about 52 years, Occ: Business (3) Sri R. Sanjay Kumar S/o late R. Gyaneshwar, aged about 50 years, Occ: Business (4) Sri R. Vinay Kumar S/o late R. Gyaneshwar, aged about 48 years, Occ: Business (5) Sri R. Ajay Kumar S/o late R. Gyaneshwar, aged about 45 years, Occ: Business
All residents of 3-2-352, Chappal Bazar, Kacheguda, Hyderabad
(Plaintiff Nos. 2 to 5 are added as per the orders dated 27-03-2023 as made in
I.A. No. 17/2023) … Plaintiffs AND (1) MR. Dhananjay Vishwamitre S/o late Ragotham Rao, aged about 51 years, occupation service, resident of H.No. 4-5-490 to 4-5-497, Sultan Bazar, Badichowdi, Hyderabad (2) MR. Dheerendra Vishwamitre S/o late Sanjay Vishwamitre, aged about 25 years, occupation: Student, resident of flat No. 405, L.K. Royal Heights, H.No.16-11-310/2/2/1, Moosaram bagh, Hyderabad. … Defendants
These suits are coming before me for final hearing and disposal in the presence of Sri. M.Keshava Rao, Counsel for the plaintiffs in O.S.No. 1155/2013 and O.S.No.990/2014 and Sri E.Ajay Kumar, Counsel for Defendants in O.S.No. 1155/2013 and O.S.No.990/2014, upon perusing
Page 2 of 30 Common Judgment in O.S. No.1155 of 2013 & O.S. No.990 of 2014 the material on record, upon hearing both sides and having stood over for consideration, this Court delivered the following:-
Both suits are clubbed and common evidence was recorded in O.S.
No.990 of 2014
:: COMMON JUDGMENT ::
Pleadings and Issues in O.S.No.990 of 2014:
1.This suit in OS No.990 of 2014 is filed for relief of declaring registered Lease Deed bearing document No. 997 of 2009 dated 27-04- 2009 entered between the deceased plaintiff No.1 and late Dr. Raghottam
Rao as subsisting between plaintiffs Nos.2 to 5 and defendants.
Alternatively, to direct the defendants to execute a fresh lease deed in favour of the plaintiffs Nos.2 to 5 in respect of the suit schedule shop for a period of 25 years in terms of the Agreement dated 04-04-2011 and in the lines of the registered lease deed dated 27-04-2009.
2.The facts mentioned in the plaint in OS No. 990 of 2014 are as follows:-
The plaintiffs are the tenant of the defendants in respect of all that shop in ground floor of H.No. 4-5-494, admeasuring around 280 sq.
feet, situated at Badichowdi, Sultan Bazar, Hyderabad (hereinafter referred to as SUIT SCHEDULE PROPERTY). The plaintiff No.1 obtained all that shop bearing H.No. 4-5-494, admeasuring 360 sq. feet, situated at Badichowdi,
Sultan Bazar, Hyderabad, from its owner Dr. V. Raghottam Rao, through a registered Lease Deed dated 27.04.2009 bearing document No. 997 of 2009 and has been running cloth business under the name and style of
Page 3 of 30 Common Judgment in O.S. No.1155 of 2013 & O.S. No.990 of 2014 'REGAL SAREE & CLOTH STORES' and had been regularly paying the monthly rent of Rs. 1,500/- and maintenance charges of Rs. 3,000/-. That in the month of March 2010, Dr. V. Raghottam died and since then the defendant No.1 herein who is the son of late Dr. V. Raghottam Rao has been receiving the rents. As the things stood thus in the month of January 2011, the defendants approached the plaintiff No.1 stating that they intended to construct a new building by removing the old existing shops and offered to re-deliver newly constructed shops and the plaintiff No.1 agreed for the said proposal. After due deliberations and discussions among the parties, the plaintiff No.1 and the defendants have entered into an agreement on 04-04-2011. In pursuance to the said Agreement, the plaintiff No.1 handed over the rear side portion of his shop to the defendants on 24-10-2012 and had been continuing his business in the front portion. The defendants got constructed a new building on the rear side and handed over the newly constructed shop to the plaintiff No.1 in the month of April 2013. At the time of the taking delivery of new shop, the plaintiff No.1 reminded the defendants to enter into a fresh lease deed as was agreed upon in the Agreement dated 04-04-2011. But, the defendants replied that as the plaintiff cooperated them in readily handing over the old shop and during the course of construction, they have decided to continue the old registered lease deed. In view of the said reply, the plaintiff No.1 also agreed and accordingly the plaintiff and defendants agreed to follow the original registered lease deed.
Accordingly, the defendants have been receiving the rents at the
Page 4 of 30 Common Judgment in O.S. No.1155 of 2013 & O.S. No.990 of 2014 enhanced rate from the month of April 2013. Thus the parties have been continuing the original registered lease deed and following its terms and conditions in all other aspects.
It is further submitted that in the morning hours of 11-08- 2013, the defendant No.1 came to the suit schedule property along with labourers and they directly came to the newly constructed shop and started damaging the wall and shutter of the plaintiff No.1. When the plaintiff No.1 resisted the said acts, the defendant threatened that they would demolish the shop at any time. In view of the said attempt by the defendant No.1, the plaintiff was constrained to file O.S. No. 1155 of 2013 on the file of the Court of the I Senior Civil Judge, City Civil Court,
Hyderabad, seeking perpetual injunction restraining the defendants from interfering with the peaceful possession and enjoyment of the plaintiff over the suit schedule shop.
The defendant No.1 filed his written statement in O.S. No.
1155 of 2013 making frivolous averments and he even went to the extent of stating that the old shop is affected in road widening for the purpose of
HMR Project and was surrendered to G.H.M.C. and the present shop is new shop and the same is constructed on the rear side of the earlier old shop which is distinct and different from the old shop and that the plaintiff No.1 is not coming forward for execution and registration of the lease deed as is agreed upon in the Agreement dated 04-04-2011. It is submitted that the plaintiff was and is always ready to execute a fresh lease deed but the defendants proposed to continue the terms of the original registered lease
Page 5 of 30 Common Judgment in O.S. No.1155 of 2013 & O.S. No.990 of 2014 deed dated 27-04-2009. That the defendants have been receiving the enhanced rent from April 2013 but at no point of time they raised such plea. However, for the first time in the written statement in O.S. No. 1155 of 2013 in the month of December 2013, the defendants raised frivolous allegations and tried to find fault on the part of the plaintiff.
It is also submitted that though there is no need to enter into fresh lease deed and though the original registered lease deed binds the parties hereto, as a precautionary measure and to see that the defendants shall not throw away the plaintiff from the suit schedule shop by taking undue advantage of the situation, the plaintiff got issued a legal notice on 27-05-2014 calling upon the defendants to come forward for entering into a fresh lease deed on 03-06-2014 in terms of the Agreement dated 04-04- 2011 and in the lines of original registered lease deed dated 27-04-2009.
Inspite of receipt of the said legal notice, the defendants neither gave any reply nor come forward for registration of the lease deed. Thus, the plaintiff approached this Court seeking declaration that the original registered lease deed dated 27-04-2009 bearing document No. 997 of 2009 is subsisting by and between the plaintiff and the defendants and in the alternative, to direct the defendants to execute a fresh lease deed in favour of the plaintiff in respect of the suit schedule shop for a period of 25 years in terms of the Agreement dated 04-04-2011 and in the lines of the registered lease deed dated 27-04-2009. Hence, the suit.
Page 6 of 30 Common Judgment in O.S. No.1155 of 2013 & O.S. No.990 of 2014
3. Written statement filed by defendant No.1 denying the averments mentioned in the plaint and submitted that the demised premises is undertaken to be given to the Plaintiff to carry on business and not make it as a thoroughfare and way which will impair the utility of the building and also cause security concern to the other inmates of the building. That the Plaintiff is using the Interim Orders as a sword and continuing to use the mulgi as a thoroughfare and way. Earlier the Plaintiff was the tenant of shop Municipal No. 4-5-494 under Registered Lease
Deed Dated 27-04-2009 which is now affected under road widening for the purpose of HMR project and surrendered to the GHMC and as such the old shop is not existing now as the land on which the old shop existed is acquired by GHMC for HMR Project and further as per the Agreement dated 04-04-2011 between the plaintiff and defendants herein, the plaintiff has not entered into any fresh Lease deed even though the new premises having a plinth area of 280 sft. was given to the Plaintiff. Not stopping there, the plaintiff has also damaged the suit mulgi by making it a thoroughfare/way by opening two shutters on the back/rear side illegally without any manner of right in collusion with backside licensees of defendants and thereby also created security problem to the complex/building which will warrant the situation to terminate the lease.
It is further submitted that Plaintiff was the tenant of old shop mulgi No. 4-5-494 and not the newly constructed shop and which is now given to the Plaintiff as per agreement dated 04-04-2011 and that Plaintiff failed to come forward for getting the lease deed registered by complying
Page 7 of 30 Common Judgment in O.S. No.1155 of 2013 & O.S. No.990 of 2014 to the terms and conditions set out by the defendants. It is also pertinent to mention here that on 25th December 2010, a Notification of GHMC appeared in the Times of India Newspaper stating that the Collector of
Hyderabad vide Notification No. B/546/2010 dated 22-12-2010 intends to acquire land in which the plaintiff is the tenant for Hyderabad Metro Rail
Project and Road widening/Master Plan and subsequently, individual
Notices were also served on this defendant which were forwarded to the plaintiff. The plaintiff appeared to be worried and during the same period, the defendants were also discussing about constructing new building since good portion of defendants property was affected including the leased mulgi of plaintiff and the plaintiff was overjoyed and shown interest in surrendering and also consented to cooperate with the defendants in obtaining permission/sanction for new building and was more than ready to surrender the portion affected in such road widening and requested the defendants to provide shop/ mulgi in the new to be constructed building.
Then an agreement was entered into between plaintiff and defendants on 04-04-2011 wherein it was agreed that only plinth area of 280 sft of carpet area shop in the new building would be let out to the plaintiff on latest market rent with shutter facing the main road on the western side for ingress and egress and nothing more and nothing less than this area.
Since new proposal was being sent to GHMC for assessment, the demised shop is temporarily identified as newly constructed No. 4-5-494 and that the demised shop as such is a new mulgi given to the plaintiff on the new terms and as such the demised shop in distinct and different and not old
Page 8 of 30 Common Judgment in O.S. No.1155 of 2013 & O.S. No.990 of 2014 one and in the absence of any lease deed the tenancy is month to month.
It was the plaintiff who was not ready to enter into register lease deed, initially stating that the days are inauspicious for entering into any new venture and later stating that if the lease deed has to be entered into, he shall incur huge expenditure running into lakhs and as such postponed the same and thereafter blatantly made a thorough fare by opening two shutters on the rear side of the mulgi to facilitate customers to his other big shop/showroom in the bye-lane without the consent of the defendants/landlords thereby causing damage the property and impairing the utility of the suit schedule premises and also causing breach of the terms of tenancy.
It is submitted here that if part of the building and the shop of the leased premises to the plaintiff is demolished for the purpose of road widening and possession of the same has been taken by the GHMC, the lease of the said shop ceases and their does not exist any landlord tenant relationship between plaintiff and defendants in respect of the demised premises. It is also submitted that the defendants have never evaded to enter into fresh lease deed and it is the plaintiff who has damaged the suit shop by opening the two shutters on the rear side by making a thorough fare and thereby violated and breached the terms of the tenancy dis entitling him for continuing as tenant. Thus, the defendants pray to dismiss the suit.
Page 9 of 30 Common Judgment in O.S. No.1155 of 2013 & O.S. No.990 of 2014
4. Basing upon the above pleadings, the following issues were framed in O.S. No.990/2014 for consideration.
(i)Whether plaintiff is entitled for declaration that the registered lease deed dated 27-04-2009 vide doc.No.997/2009 between plaintiff and Dr. Raghottam Rao is subsisting by and between plaintiff no.1 and defendants as on date of filing of suit?
(ii) Alternatively, whether the plaintiffs no.2 to 5 are entitled for execution of fresh lease deed by defendants in their favour in respect of suit schedule shop for a period of 25 years in terms of agreement dated04-04-2011 and the registered lease deed dt.27- 04- 2009?
(iii)To what relief?
Pleadings and Issues in O.S.No.1155 of 2013 :
5. This suit is filed for grant of Perpetual Injunction restraining the defendants and or any other person or persons claiming through and or under them from dispossessing the plaintiff from the suit schedule shops without due process of law.
6. The facts mentioned in the plaint in OS. No.1155/2013 are as follows:
Besides the pleadings as mentioned in plaint of OS No. 990 of 2014, the plaintiff further pleaded that in the morning hours of 11-08-2013, the defendant No.1 came to the suit schedule property along with labours and they directly came to the newly constructed shop and started digging the wall and shutter of the plaintiff. In view of the said attempt by the defendant No.1, the plaintiff was put to great shock and he asked the defendant to remove the old structures. But the defendant No.1 gave
Page 10 of 30 Common Judgment in O.S. No.1155 of 2013 & O.S. No.990 of 2014 evasive reply stating that he would also remove the newly given shop.
When the plaintiff showed the agreement and questioned him, he demanded Rs. 1,00,000/- towards rent. Then the plaintiff replied that already he enhanced the rent from Rs. 1,500/- to Rs. 20,500/- which was exorbitantly as was demanded by them. The plaintiff with the help of the locality shop keepers could resist the illegal and high handed acts of the defendant No.1. In view of the said resistance the defendant No.1 took away his labourers stating that he would demolish the new shop of the plaintiff if the plaintiff did not accept to the enhanced rent to Rs.
1,00,000/-.
The plaintiff submitted that in view of the threats of the defendant No.1 to throw away the articles of the plaintiff on road and would damage the wall at any cost, the plaintiff immediately approached the S.H.O., Sultan Bazar P.S. and complained against the defendant No.1.
The Police Officers refused to take any action against the defendants stating that it is a civil dispute and advised to approach civil court and get injunction.
It is further submitted that the plaintiff has been carrying on his business in the suit schedule shop since more than 60 years and when the defendants undertook construction of new building, he rendered all his co-operation and immediately handed over the rear side portion and took over the newly constructed portion. The plaintiff also enhanced the rent exorbitantly as per the demand of the defendants. Inspite of all these co- operation and patience, the defendants are not satisfied and are bent
Page 11 of 30 Common Judgment in O.S. No.1155 of 2013 & O.S. No.990 of 2014 upon to illegally throw away the plaintiff from the suit schedule property under the guise of demolition of the old structures. That the plaintiff is a lawful tenant of the defendants and has been in legal and valid possession and enjoyment of the suit schedule property and has been continuously paying the rent and the paid the rent of August 2013 in advance. As such the plaintiff is entitled to be in possession as per the terms and conditions of the registered Lease Deed and also the Agreement. Thus, the plaintiff is left with no other alternative than to approach this Court by way of the present suit seeking a perpetual injunction.
Written Statement filed by defendants mentioning similar pleadings as mentioned in OS No.990 of 2014.
Rejoinder filed by plaintiff to the written statement
filed in OS No.1155/2013 denied the averments mentioned in the
written statement.
7. Basing upon the above pleadings, the following issues were framed in O.S.1155/2013 for consideration.
(i)Whether the plaintiff is entitled for perpetual injunction as prayed for?
(ii) To what relief?
TRIAL PROCEEDINGS:
8.Since both the suits in OS. No.990 of 2014 and OS. No.1155 of 2013 were filed by same plaintiffs against the defendants for the same suit schedule property, both matters were clubbed together and the common
Page 12 of 30 Common Judgment in O.S. No.1155 of 2013 & O.S. No.990 of 2014 evidence was recorded in OS. No.990/2014. During trial, plaintiff No.2 was examined as PW.1 and got exhibited documents A.1 to A.18. Further, during cross examination of PW.1, Exs.B.1 to B.3 were marked. On the other hand, Defendant No.1 was examined as DW.1 and got exhibited documents B.4 to B.6 and during his cross examination, Exs.A.19 to A.23 were marked.
9.Heard arguments of both sides and perused the citations filed by learned counsels for plaintiffs and defendants. Further, perused the written arguments filed by both sides.
EVIDENCE ON RECORD:
10.In order to establish the facts as mentioned in the plaint, in both suits, the son of original plaintiff who is Plaintiff No.2 herein was examined as PW.1 and reiterated the contents of plaint in his chief examination affidavit and exhibited documents A.1 to A.18. Ex.A.1 is
Certified copy of the registered lease deed dated 27-04-2009. Ex.A.2 is
Original agreement dated 04-04-2011. Ex.A.3 is Photographs with CD showing the suit shop. Ex.A.4 is Office copy of the legal notice dated 27- 05-2014. Ex.A.5 is Original postal receipt dated 27-05-2014 of Defendant
No.1. Ex.A.6 is Original postal receipt dated 27-05-2014. Ex.A.7 is Original unserved cover dated 30-05-2014 of Defendant No.1. Ex.A.8 is Original postal acknowledgement card dated 28-05-2014 of Defendant No.2.
Ex.A.9 is Original rent receipt for June 2013. Ex.A.10 is Original rent receipt
Page 13 of 30 Common Judgment in O.S. No.1155 of 2013 & O.S. No.990 of 2014 for July 2013. Ex.A.11 is Original rent receipt for August 2013. Ex.A.12 is
Original rent receipt for July 2014. Ex.A.13 is Original rent receipt for April 2015. Ex.A.14 is Original rent receipt dated 01-04-2014 for April 2016.
Ex.A.15 is Original rent receipt dated 01-04-2017 for April 2017. Ex.A.16 is
Original rent receipt dated 01-04-2017 for April 2018. Ex.A.17 is Original rent receipt for property tax for 2014-2015. Ex.A.18 is Original receipt
dated 15-11-2017 for property tax.
11.In cross examination, PW.1 admitted that the part of suit was notified to to be acquired in road widening and he knew about the notices issued to the landlord about road widening and acquisition of part of the shop. He deposed that the old shop has been demolished and a new shop has been constructed in the same place and there were seven or eight shops in the old building and admitted that except three shop rooms, other shops were demolished and newly constructed. He further deposed that the old shop total area was 360 sq.feet and after 20 feet was acquired for road widening, the new shops were constructed. He denied that the plaintiffs were never ready for getting registered lease deed and also denied that in view of new agreement under Ex.A.2, no conditions in
Ex.A.1 would apply. He stated that new building was given to them in
April 2013 and they are continuing with new rent with old agreement. He denied that they entered into new agreement because major portion of premises was going under road widening. He admitted that the portion of backside new building was added in the agreement under Ex.A.2. As per the old agreement, the entrance was on the western side. He admitted
Page 14 of 30 Common Judgment in O.S. No.1155 of 2013 & O.S. No.990 of 2014 that after construction, they were given new building and then they handed over the old premises to the owners and it has gone in road widening. The total tenanted portion now comes to 280 sqft upto the shutter on the west side. He admitted that after shutter, there is footpath and steps and they fixed grills and door covering the footpath. Ex.B.1 is
Photograph of shop reflecting the grills. Ex.B.2 is Photograph reflecting the steps constructed by the owner. Ex.B.3 is Photograph showing cement basement made in front of the shop on the road. He denied that the the defendants have given two window shops to third parties on rent i.e. Saritha and Rajender Yadav for Rs. 6,000/- per month and that he colluded with Saritha and Rajender Yadav and erected two shutters on the backside in place of windows. He further deposed that at present rent is
Rs.26,625/- per month and the old rent was Rs.1,500/- per month.
12.On the other hand, the defendant No.1 was examined as DW.1 in his chief examination affidavit, he reiterated the contents of the written statement and got exhibited documents B.4 to B.6. Ex.B.4 is Certified copy of Lease Deed, dated 13-03-2013. Ex.B.5 is Certified copy of Lease
Deed, dated 13-03-2013. Ex.B.6 is Lease Agreement, dated 11-12-2012.
In cross examination, DW.1 deposed that before demolition and reconstruction, the total extent of the property was approximately 422 Sq.
Yards consisting of Ground, First and Part of 2nd Floor, which was dilapidated. In ground floor, there were (7) Shops and all shops were having doors from the front side. He admitted that all the shops were
Page 15 of 30 Common Judgment in O.S. No.1155 of 2013 & O.S. No.990 of 2014 affected in road widening. He deposed that after construction of new building, Lease Agreements were made. The said Lease Agreements are entered in respect of some shops, by him, by his sister-in-law and by his mother. That some Lease Agreements are registered and some are not.
However, they have not entered into any Lease Deed with R. Gyaneshwar (Plaintiff No.1). He admitted that his father entered into a registered Lease
Deed on 27-04-2009 with R. Gyaneshwar i.e. deceased plaintiff No.1 and such lease deed for a period of 25 years.
13. DW.1 further admitted that in clause 12 of the said Lease
Deed, it is mentioned that in case of demolition of the shop by GHMC in road widening the Landlord shall construct a new shop and induct the tenant in possession of the same. He admitted that the portion is having three shops constructed in the year 2019 with shutters on its backside. He further admitted that they have entered into agreement on 04-04-2011 with the Plaintiff wherein Dhirender Vishwamitra and their builder Ramesh
Deshmukh are shown as parties and also admitted that the said
Agreement was signed by all the parties after mutual discussions. He further admitted that on Page No.3 of Ex.A.2, it is mentioned that the First party i.e. defendant No.1 herein approached the Third Party i.e. Ramesh
Deshmukh and requested him to vacate the schedule 'B' property for the purpose of developing the schedule 'B' property and thereafter offer to Re- deliver the newly built up area. He further admitted that the plaintiff handed over the Rear Side portion of his Shop (old) to them on 24-10-2012 and they got constructed New building and handed over New Shop to the
Page 16 of 30 Common Judgment in O.S. No.1155 of 2013 & O.S. No.990 of 2014
Plaintiff in March 2013. He denied that at the time of taking delivery of
New Shop, the Plaintiff No.1 demanded them to enter into a fresh Lease
Deed as per Ex.A.2, but defendants replied that there is no need, as the
Plaintiff Co-operated and informed him to continue the Old Lease Deed
dated 27-04-2009 except to enhance the rent which would be as per terms
of Ex.A.2. He further admitted that old shop number is 4-5-494 and the
New Shop No. is also 4-5-494. DW.1 was confronted with one Photograph of the shop and he admitted the same. Ex.A.19 is photograph of the suit schedule shop. He denied that the Developer constructed the Platform and
Shed over it in the year 2013 itself as shown in Ex.A.19. Further, DW.1 was confronted with Four Photographs which are exhibited A.20 to A.23 respectively along with CD and he admitted that the said photographs are part of the building. He admitted that they have not issued any notice calling upon the Plaintiff to execute a Registered Lease Deed at any point of time and further admitted that the the Plaintiffs are paying monthly rents to them as per Ex.A.2 only.
14. During arguments, the learned counsel for plaintiffs relied upon the following citations :
i.Hon’ble Supreme Court of India in Shaha Ratansi Khimji
And Sons Vs Proposed Kumbhar Sons Hotel Private Limited,
reported in 2014 (5) ALD SC 181, held that “Immovable property means landed property and may include structures embedded in the earth such as walls or buildings for the permanent beneficial
Page 17 of 30 Common Judgment in O.S. No.1155 of 2013 & O.S. No.990 of 2014 enjoyment. A Lease of immovable property is a transfer of right to enjoy such property in consideration of price paid as per Section 105 of T.P. Act. By way of lease, a right and interest is created which stands transferred in favour of the lessee. The immovable property, thereafter, only can be reverted back on determination of such right and interest in accordance with the provisions of the T.P. Act. Therefore, once the right of lease is transferred in favour of the lessee, the destruction of a house/building constructed on the leased property does not determine the tenancy rights of occupant which is incidental to the contract of the lease which continues to exist between the parties.
We are, therefore, of the opinion that in the event of the tenancy having been created in respect of a building standing on the land, it is the building and the land which are both components of the subject matter of demise and the destruction of the building alone does not determine the tenancy when the land which was the site of the building continues to exist." ii.Hon’ble Supreme Court in Prem Raj VS. D.LF. Housing
and Construction Private Limited, reported in AIR 1968 (SC) 1355
held that “In the present case there is absence of an averment on the part of the plaintiff in the plaint that he was ready to perform his part of the contract. In the absence of such an averment it must be held that the plaintiff has no cause of action so far as the relief for specific performance is concerned." iii.Hon’ble High Court of Andhra Pradesh in Chekka
Raghuram Vs Dendukuri Murali Raju, reported in 2009 (4) ALD 232
held that "It is now well settled that when eviction of tenant under Section 12 of the Act is sought for the purpose of demolition and reconstruction, the landlord is bound to give an undertaking to redeliver, after construction, similar accommodation to the tenant. The pre existing tenancy of the tenant, therefore, continues and it is only in the interregnum period, when he vacates the premises
Page 18 of 30 Common Judgment in O.S. No.1155 of 2013 & O.S. No.990 of 2014 and received back after reconstruction, that his tenancy remains under suspension. Thus the tenant, who occupies the premises after reconstruction, continues to be a statutory tenant on the same terms and conditions.
In the present case, by virtue of the compromise and agreements between the parties before the Lok Adalat it was agreed by the tenant to pay the enhanced rent by 20% on the rent existing continuously for the last three years. Thus, except the aforesaid modification, the statutory tenancy of the tenant continues even with respect to reconstructed premises.” iv.Hon’ble High Court of Andhra Pradesh in Uppala
Veeresam Vs Alladi Sairam, reported in 2005 (2) ALT 2009 held that “It presupposes that the vacation of the premises by tenant is for the purpose of repairs, alterations or additions or for reconstruction. Therefore, we have no doubt in our mind that the tenancy does not cease during the period in which the building is occupied by the landlord for the purpose of carrying out repairs, alterations or additions. The relationship of tenancy does not cease. The landlord continues to be the landlord and the tenant continues to be the tenant and the tenancy relates back to the date when it was originally created.
Therefore, in our view, a new building constructed after demolishing and after evicting tenant under Section 12 of the Act continues to remain an old building for the purpose of tenancy."
15.On the other hand, the learned counsel for defendants relied upon the following citations:
i.Hon’ble Supreme Court of India in Prem Raj vs. The D.
L. F. Housing and Construction (Private) Limited and another,
reported in AIR 1968 SC 1355 held that “A plaintiff suing for a declaration that a certain contract against him is void and inoperative having been obtained by undue influence, cannot in the same suit in the alternative ask for the relief of specific performance of the same contract.
Page 19 of 30 Common Judgment in O.S. No.1155 of 2013 & O.S. No.990 of 2014
Section 37 of the Specific Relief Act expressly provides that a plaintiff suing for specific performance of the contract can alternatively sue for the rescission of the contract but the converse is not provided.” ii.Honorable Punjab And Haryana High Court in Roop
Chand Chaudhary v. Smt. Ranjit Kumari, reported in AIR 1991
Punjab And Haryana 212, held that “While a suit to claim first relief of specific performance with alternative relief of declaration/damages is permissible, converse is not true. Once a suit for return of the earnest money/ advance or grant of damages is filed, such a plaintiff disentitles himself to the alternative relief of specific performance even if claimed in the suit. He cannot be allowed to amend his plaint later on to claim specific performance of the contract as the first relief and return of earnest money/ advance and / or damages as an alternative relief. This is primarily on the rule that a claim for return of earnest money/ advance and/ or damages can be based on repudiation of the contract for one reason or the other and once the contract is repudiated, the relief of specific performance would not be available either as an alternative relief nor would such a relief be admissible by amendment”.
ANSWER TO ISSUE Nos.1 & 2 in OS 990 of 2014:
16. Upon hearing submissions of both side learned
counsels and on perusal of pleadings and by going through the
citations filed by them, I found that it is the main plea of the plaintiffs herein that the plaintiff No.1 entered into Lease Deed with Dr. Raghottam
Rao vide registered document No.997/2009 dated 27-04-2009 for suit schedule shop for a period of 25 years. It is further plea of plaintiffs/PW.1
Page 20 of 30 Common Judgment in O.S. No.1155 of 2013 & O.S. No.990 of 2014 that subsequently when the Government acquired part of building of landlord for road widening for the purpose of Metro Rail project, defendants Nos.1 and 2 and builder by name Ramesh Deshmukh entered into agreement with plaintiff No.1 on 04-04-2011 under Ex.A.2.
Subsequent to such agreement under Ex.A.2, part of the shop taken on lease by plaintiff No.1 was vacated and handed over to the defendants for development. Later on construction of new building, the portion of the old shop was vacated which was acquired under road widening. It is further plea of plaintiffs that as per Ex.A.1, the lease period is of 25 years commencing from 25-04-2009 and as per Ex.A.2, on taking up of a new shop in the new constructed building, new registered lease deed to be executed for a period of 25 years with enhancement of rent of the existing rent to Rs.20,500/-, with enhancement of 5% every year. It is further plea of plaintiffs that the defendants did not come forward for executing registered lease deed though mentioned in the terms of Ex.A.2. That the defendants have been receiving rents regularly as per the terms of Ex.A.2.
Now, the defendants without any cause of action illegally entered into the suit shop with their henchmen and tried to damage the shop and on such cause of action, the plaintiff has approached this court seeking injunction against the defendants from interfering into the plaintiffs shop vide OS
No.1155/2013 and subsequently filed OS No.990/2014 for declaring old
Lease deed under Ex.A.1 as subsisting. Alternatively, plaintiffs prayed to direct the defendants to enter into new Lease Deed as per the terms of
Ex.A.2 and in lines of Ex.A.1.
Page 21 of 30 Common Judgment in O.S. No.1155 of 2013 & O.S. No.990 of 2014
17. Per contra, the learned counsel for defendants denied the part pleas taken by the plaintiff and submitted that there is no lease deed entered by plaintiffs and defendants for the newly constructed shop and the old lease deed under Ex.A.1 is only for the old shop which would already acquired by GHMC under road widening for Metro Rail Project.
Further, it is contended by learned counsel for defendants that the plaintiffs had damaged the new constructed shop by constructing stair case in front of the shop and footpath and constructed shutters violating the terms of Lease Deed and therefore, the defendants do not intend to continue lease deed with the plaintiffs. It is also argued by the learned counsel for defendants that the relief of plaintiffs in OS No.990/2014 are not maintainable because on one side the plaintiffs are seeking relief of declaring old Lease Deed under Ex.A.1 as subsisting when the old shop is not in existence and alternatively, the plaintiffs are seeking relief to direct the defendants to execute fresh lease deed in favour of plaintiff in respect of suit schedule shop for 25 years in terms of agreement under Ex.A.2 and in lines of Ex.A.1. The learned counsel for defendants in order to establish the above contention relied upon citations filed by him as mentioned above.
18. On considering the submissions of both learned counsels, it is now pertinent to read the terms of Exs.A.1 and A.2. On perusal of Ex.A.1 which is old Lease Deed for the old shop No.4-5-494 admeasuring 360 sqft,
I found that such Lease deed which was entered on 27-04-2009 was for 25
Page 22 of 30 Common Judgment in O.S. No.1155 of 2013 & O.S. No.990 of 2014 years and it was rented for Rs.1500 per month exclusive of property tax, electricity consumption charges and also a sum of Rs.3,000/- per month is to be paid towards maintenance which shall be exclusive of rent. Further as per Clause No.11 of the Ex.A.1, it is mentioned that “As Building structure is very old if the Landlord intends to effect any major substantial repairs (New Cement Slab with support of pillars, walls, rolling, shutters, or make any reconstruction of the schedule property, the Tenant shall cooperate with the Landlord for such repairs or reconstruction. In the event of reconstruction or major substantial repairs (new Cement slab with support of pillars, walls, rolling shutters), the Tenant shall pay rent on par with the then existing marked value and the amount will be arrived mutually.”
19. Further on perusal of Ex.A.2 agreement dated 04-04-2011, I found that recitals are mentioned as follows:
PAGE 3:
AND WHEREAS the building constructed over Schedule A property which includes the schedule-B, C and D property has become old and dilapidated and needs immediate dismantling.
AND WHEREAS the first and second parties have along with Uma Devi and Savitha bai entered into Development Agreement with the third party for construction of a new building in the Schedule-A after dismantling the old structure.
AND WHEREAS the first party approached the fourth party (wrongly typed as third party) and requested him to vacate the Schedule-B property for the purpose of developing the Schedule-B property, after thereafter offered to re-deliver the newly constructed built up area over Schedule-B property for a period of 25 years
Page 23 of 30 Common Judgment in O.S. No.1155 of 2013 & O.S. No.990 of 2014 not exceeding 300 months i.e., from..... to....... and thereafter the lease deed will cease to exist.
PAGE No.4
If a new building is constructed as per the existing building bye laws and thereby only a small portion of the Schedule B property existing now, will remain, and as such the fourth party requested the second and first parties to give him on lease additional built up area in the proposed new building of the Schedule C and D property and the first and second parties have agreed for the same.
Further as per clause 2, 5 & 6 of terms in Ex.A.2 are mentioned as
follows:
CLAUSE 2: After the structures in the schedule-C and D and part of Schedule-B properties are completed, the first and the second parties shall deliver the possession of 280 sq. feet of the bult up area which covers the part of Schedule-B and Schedule-C and D properties to the fourth party.
CLAUSE 5: After completion of the structures in the front portion of the Schedule- B property, a composite lease deed shall be executed in favour of the fourth party by the first party and second party in respect of a total extent of 280 sq. feet which covers the Schedule- B, Schedule-C and D properties. The lease deed will be registered at the time of handing over the possession of the above said mulgi to the fourth party. The stamp duty, registration charges and other incidental charges for registration shall be borne by the fourth party.
CLAUSE 6: A registered Lease Deed shall be executed by the first and the second parties for the said area covering Schedule-B, C and D properties for a period of 25 years, and with an enhancement of the existing rent to Rs. 20,500/- every month. The rent shall be further enhanced @ 5% every year on the existing current years rent and the enhancement of rent shall be made every year as long as the tenant is in the possession of rental premises as hereunder.
20.From the combined reading of recitals of Exs.A.1 and A.2, I found that it was agreed between plaintiff No.1 and defendants that after completion of the structures in the front portion of the Schedule-B
Page 24 of 30 Common Judgment in O.S. No.1155 of 2013 & O.S. No.990 of 2014
Property, a composite lease deed shall be executed in favour of the plaintiff No.1 by the defendants in respect of total extent of 280 Sqft., and such lease deed would be registered at the time of handing over the possession of new mulgi to the plaintiff No.1 and that the stamp duty and registration charges and other incidental charges for registration shall be borne by the plaintiff No.1. It is also found that as per Clause-6, such new
Lease deed would be executed for the period 25 years with enhancement of existing rent to Rs.20,500/- and further enhancement of rent @ 5% every year on the existing current year rent.
21.Though the plaintiff No.1 has cooperated with the defendants in handing over the part of the shop for the purpose of development of new building and subsequently left the old shop to the defendants after occupying new shop admeasuring 280 sft but the defendants who are the landlord of such shop did not come forward for entering into new lease deed as per the terms in Ex.A.2. It is found from the cross examination of
DW.1 they have not issued any notice to the plaintiffs calling upon them to enter into new lease deed. It is the evidence of PW.1 that when they approached defendants for entering into new lease deed agreement as per terms of Exs.A.1 and A.2, the plaintiffs were stated by defendants that there was no need for new lease deed because the plaintiffs have been cooperating with the defendants. It is the duty of any landlord who is renting his premises to the lessee to enter into lease agreement with them. In the present case, where original lease deed was executed and
Page 25 of 30 Common Judgment in O.S. No.1155 of 2013 & O.S. No.990 of 2014 registered in the year 2009 under Ex.A.1 for a period of 25 years and at the request of defendants, the plaintiff No.1 has vacated part of his shop for the purpose of development and subsequently, where the plaintiff No.1 was given newly constructed shop admeasuring 280 sft with the same shop number and also the plaintiffs have been paying rents as per terms of Ex.A.2 then they would not be any blame on the plaintiffs for not coming forward for entering into new lease deed with the defendants. The defendants being landlord ought to have requested or demanded the plaintiffs to enter into new lease deed for the new shop admeasuring 280 sft when the old lease deed was for shop admeasuring 360 sft.
22.The relief sought by the plaintiffs herein is to declare old registered lease deed dated 27-04-2009 i.e. Ex.A.1 entered between deceased plaintiff No.1 and late Ragotham Rao as subsisting between plaintiff Nos.2 to 5 and defendants. However, I am constrained to hold that the old shop admeasuring 360 sft is not in existence as on this day because the same have been demolished and part of the space was acquired by GHM under road widening and that the plaintiffs have taken up the possession of new shop admeasuring 280 sft. Then in such circumstance, it cannot be said that the old lease deed under Ex.A.1 is still subsisting between plaintiffs and defendants. It is admitted fact that at the time of developing the old shop, an agreement was entered between plaintiff No.1 and defendants under Ex.A.2 as mentioned above. As per the terms of such agreement, after development new shop admeasuring
Page 26 of 30 Common Judgment in O.S. No.1155 of 2013 & O.S. No.990 of 2014 280 sft would be handed over to plaintiff with new rent of Rs.20,500/- per month with enhancement of 5% every year. Such amount calculated and mentioned under terms of Ex.A.2 is not related to the terms of Ex.A.1.
Thus, in such circumstance, I am constrained to hold that the plaintiffs are not entitled for the relief of declaring the old lease deed dated 27-04-2009 as still subsisting between plaintiffs No.2 to 5 and defendants.
23. The alternative relief sought by the plaintiff is to direct the defendants to execute fresh lease in their favour in respect of suit schedule shop for the period of 25 years in terms of agreement dated 04- 04-2011 and in lines of registered lease deed dated 27-04-2009. However, such relief is vehemently disputed by the learned counsel for defendants for the reason that the plaintiffs while seeking declaration cannot seek for specific performance of contract. I am not in agreement with such contention of the learned counsel for defendants for the reason that the plaintiffs are not seeking declaration of Ex.A.1 as subsisting with specific performance of contract as per Ex.A.1. Here the plaintiffs are seeking specific performance of contract as per the agreement dated 04-04-2011 under Ex.A.2 which is different from lease deed under Ex.A.1. Though the learned counsel for defendants relied upon the citations of Hon’ble
Supreme court and Hon’ble Punjab and Haryana High Court as mentioned above, but as per the observation of Hon’ble Supreme Court of India, I found that the plaintiff seeking for declaration that a certain contract against him is void and inoperative having been obtained by undue
Page 27 of 30 Common Judgment in O.S. No.1155 of 2013 & O.S. No.990 of 2014 influence, cannot in the same suit in the alternative ask for the relief of specific performance of the same contract.
24. Here as mentioned above, the plaintiffs are not seeking specific performance of the same contract i.e. Ex.A.1 which they intended to be declared as subsisting between plaintiffs and defendants. Therefore,
I am of view that the plaintiffs who are in possession of suit schedule shop and have been carrying on their business since long time are entitled for relief of directing defendants who are the landlords to enter into fresh lease deed with them in respect of the suit schedule shop as per the terms of agreement dated 04-04-2011 and in lines of the registered lease deed
dated 27-04-2009 with changes wherever applicable. Hence, Issue No.1
is answered against the plaintiffs and Issue No.2 is answered in
favour of the plaintiffs.
ANSWER TO ISSUE No.3 in OS 990 of 2014:
25. In the result, the suit of the plaintiffs is decreed with costs directing the defendants to execute fresh lease deed in favour of plaintiff
No.2 to 5 in respect of suit schedule shop in terms of agreement dated 04- 04-2011 and in the lines of registered lease deed dated 27-04-2009.
ANSWER TO ISSUE No.1 in OS 1155 of 2013:
26. As per the discussions while answering the issues in OS
No.990 of 2014, it is found that the plaintiffs are in possession of suit
Page 28 of 30 Common Judgment in O.S. No.1155 of 2013 & O.S. No.990 of 2014 schedule shop and it is the defendants who have not either requested or demanded the plaintiffs to enter into new lease deed for the new shop admeasuring 280 sft. In OS No.990 of 2014, the defendants are directed to execute fresh lease deed in favour of plaintiffs in terms of agreement under Ex.A.2 and in the lines of Ex.A.1. Now, it is further contention of the plaintiffs that the defendants with their henchmen illegally entered into the suit shop and tried to demolish it. It is the contention of the defendants that the plaintiffs have installed stair case in front of the shop and on to the footpath and also they have constructed shutters by demolishing the new shop.
27. Firstly, It is admitted fact that there is no lease deed entered between plaintiffs and defendants for the new shop admeasuring 280 sft.
Secondly, it is the contention of the plaintiffs that such shutters and stairs were constructed by the developer while developing the new building. On perusal of cross examination of DW.1, I found that the photographs of the building and the shops were confronted to him and marked as Exs.A.19 to
A.23 and it was testified by him that in Ex.A.20, the stair is existing before all/every shop with the same level and that there is staircase existing in such photographs under Exs.A.20 to 22. Ex.A.24 is also admitted by him which shows shutters on backside of properties bearing numbers 4-5-490, 491 and 492. Though defendants pleaded that the plaintiffs have demolished new shop by constructing shutters and the stair case which were not there at the time of handing over new shop to plaintiffs but the
Page 29 of 30 Common Judgment in O.S. No.1155 of 2013 & O.S. No.990 of 2014 defendants did not establish such fact by adducing any material evidence.
In such circumstance, I am inclined to hold that the plaintiffs have been using the shop and they have been paying the rents as per the agreement under Ex.A.2 and therefore, the defendants have no right to interfere with the possession of plaintiffs over the suit schedule shop without due process of law. Thus, this issue is answered in favour of plaintiffs.
ANSWER TO ISSUE No.2 in OS 1155 of 2013:
28. In the result, the suit of plaintiffs is decreed with costs for grant of perpetual injunction restraining the defendants or any person claiming through them from dispossessing the plaintiffs from the suit schedule shop without due process of law.
Dictated to Stenographer, transcribed, corrected and pronounced by me in
the open court on this the 29th day of February, 2024.
Sd/-
V Senior Civil Judge, (FAC) VI Senior Civil Judge Hyderabad.
APPENDIX OF EVIDENCE
WITNESSES EXAMINED FOR
PLAINTIFFS DEFENDANTS
PW1- R. Vijay Kumar DW1- Dr. Dhananjay Vishwamitre
EXHIBITS MARKED ON BEHALF OF PLAINTIFFS
Ex.A.1 is Certified copy of the registered lease deed dated 27-04-2009. Ex.A.2 is Original agreement dated 04-04-2011. Ex.A.3 is Photographs with CD showing the suit shop. Ex.A.4 is Office copy of the legal notice dated 27-05-2014. Ex.A.5 is Original postal receipt dated 27-05-2014 of Defendant No.1.
Page 30 of 30 Common Judgment in O.S. No.1155 of 2013 & O.S. No.990 of 2014
Ex.A.6 is Original postal receipt dated 27-05-2014. Ex.A.7 is Original unserved cover dated 30-05-2014 of Defendant No.1. Ex.A.8 is Original postal acknowledgement card dated 28-05-2014 of Defendant No.2. Ex.A.9 is Original rent receipt for June 2013. Ex.A.10 is Original rent receipt for July 2013. Ex.A.11 is Original rent receipt for August 2013. Ex.A.12 is Original rent receipt for July 2014. Ex.A.13 is Original rent receipt for April 2015. Ex.A.14 is Original rent receipt dated 01-04-2014 for April 2016. Ex.A.15 is Original rent receipt dated 01-04-2017 for April 2017. Ex.A.16 is Original rent receipt dated 01-04-2017 for April 2018. Ex.A.17 is Original rent receipt for property tax for 2014-2015. Ex.A.18 is Original receipt dated 15-11-2017 for property tax. Ex.A.19 is photograph of suit schedule shop. Ex.A.20 is photograph of suit schedule shop. Ex.A.21 is photograph of suit schedule shop. Ex.A.22 is photograph of suit schedule shop. Ex.A.23 is photograph of suit schedule shop, with CD.
EXHIBITS MARKED ON BEHALF OF DEFENDANTS
Ex.B.1 is Photograph of shop reflecting the grills. Ex.B.2 is Photograph reflecting the steps constructed by the owner. Ex.B.3 is Photograph showing cement basement made in front of the shop on the road. Ex.B.4 is Certified copy of Lease Deed, dated 13-03-2013. Ex.B.5 is Certified copy of Lease Deed, dated 13-03-2013. Ex.B.6 is Lease Agreement, dated 11-12-2012.
Sd/-
V Senior Civil Judge, (FAC) VI Senior Civil Judge Hyderabad.