Page 1 Common Judgment in O.S.No.2036 of 2017 & O.S.No. 1540 of 2017
IN THE COURT OF V JUNIOR CIVIL JUDGE : CITY CIVIL COURT :
HYDERABAD
FRIDAY, THIS THE TWENTY FIFTH DAY OF APRIL
TWO THOUSAND TWENTY FIVE
PRESENT : SMT. B. REVATHI,
XXI JUNIOR CIVIL JUDGE
FAC: V JUNIOR CIVIL JUDGE,
CITY CIVIL COURT, HYDERABAD.
O.S.No. 2036 of 2017
AND
O.S.No. 1540 of 2017
O.S.No. 2036/2017:
BETWEEN: Mohd Hussain (died per LRs)
1. Malan Farzana W/o Late Mohd Hussain, Age: 74 years, Occ: Housewife
2. Moyhammad Abdul Rasheed S/o Late Mohd. Hussain, Age :46 years. Occ: Private Employee.
3. M.A. Majeed S/o Late Mohd. Hussain, Aged 42 years, Occ: Private Employee,
4. Mohammad Hameed S/o Late Mohd. Hussain, Aged 40 years. Occ: Private Employee
5. Aqthar Begum W/o Babu Miya, Age : 49 years, Occ : Housewife. Plaintiff Nos.1 to 5 are residing at: H.No.161D, Vengal Rao Nagar Colony Hyderabad 38
6. Raisa Begum. K W/o Houkath Ali, Aged 48 years, Occ : Housewife, R/o: H.No. 83228/678/1474, Sriram Nagar, Yousufguda, Hyderabad. (Plaintiffs No.2 to 6 are impleaded as per orders passed
in I.A.1224/2022 dated 01112022). ...Plaintiffs.
And
Shaik Saleem S/o Late Shaik Basith, Aged about 32 years, Occ : Business, R/o: 7249/5/16, DNM Colony, Sanathnagar, Hyderabad, T.S. and a tenant of Shop No.83191/429/S2(161D)
Vengal Rao Nagar Colony, Hyderabad – 500 038, T.S. ...Defendant.
O.S. No. 1540 of 2017
BETWEEN:
1. Shaik Jaweed S/o Late Shaik Basith, Aged years, Occ : Business,
Page 2 Common Judgment in O.S.No.2036 of 2017 & O.S.No. 1540 of 2017
2. Shaik Saleem S/o Late Shaik Basith, Aged years, Occ : Business, Both are R/o: 7249/5/16, DMN Colony,
Sanathnagar, Hyderabad, T.S. ...Plaintiffs.
And
1. Mohd Hussain (since died per LRs)
2. Mohd. Abdul Rasheed S/o Late Mohd. Hussain, Age :46 years, Occ: Private Employee.
3. Mohd. Abdul Majeed So Late Mohd. Hussain, Aged 42 years, Occ: Private Employee,
4. Mohd. Hameed S/o Late Mohd. Hussain, Aged 40 years. Occ. Private Employee All are R/o:H.No.161D, Vengalrao Nagar, Hyderabad.
5. Malan Faraz W/o Late Mohd. Hussain, Age: 74 years, Occ: Household.
6. Aqthar Begum D/o Late Mohd. Hussain, Age : 49 years, Occ : Household. Both R6 and R7, R/o: H.No.161D, Vengal Rao Nagar, Hyderabad.
7. Raisa Begum D/o Late Mohd. Hussain, Aged 48 years, Occ : Household, R/o: H.No. 83228/678/1474,
Sriram Nagar, Yousufguda, Hyderabad ...Defendants.
These two suits are coming up before me for final hearing in the presence of Sri D.Devender Rao, Counsel for the Plaintiffs in O.S. No.
2036/2017 and Counsel for defendants in O.S.No.1540/2017 and of Sri
M.K. Sharma, Counsel for Plaintiff in O.S.No.1540/2017 and Counsel for
Defendant in O.S.No. 2036/2017, upon hearing both counsels, upon perusing the material on record and having stood over for consideration till this day, this Court delivered the following:
:COMMON JUDGMENT:
Since the parties in both the suits and the subject matter of the dispute in both the suits are one and the same, both the suits are clubbed
Page 3 Common Judgment in O.S.No.2036 of 2017 & O.S.No. 1540 of 2017 together for Joint Trial and disposal. Accordingly, both the suits are being disposed of by this Common Judgment.
Pleadings in O.S.No. 2036 of 2017 :
1. This suit is filed for eviction of the defendant from the suit schedule premises, for recovery of arrears of rent of Rs.84,000/ and for mesne profits.
2. Plaint Averments: Plaintiffs are the absolute owners of the property bearing Municipal No. 161D (Old), 83191/429/S2 (161D), admeasuring 10x12 sft. situated at Vengal Rao Nagar Colony, Hyderabad.
The defendant obtained the suit schedule property in the month of March 2007 on oral tenancy. Initially the monthly rent was Rs.3.500/ per month and gradually enhanced to Rs.7,000/ per month and the rent is exclusive of water and electricity charges. The defendant was not regular in payment of rents and lastly the defendant had paid rent up to the month of May, 2016 and since June, 2016 onwards the defendant has been evading the payment of rents, even though the plaintiffs was regularly demanding the defendant to pay the rents together with arrears from the date of June, 2016 onwards.
3. The plaintiffs further submitted that on 08072016 the plaintiffs along with his children requested the defendant to vacate the suit schedule property, since the plaintiffs require the premises for his personal use, as the plaintiffs are facing short of accommodation. It is further submitted
Page 4 Common Judgment in O.S.No.2036 of 2017 & O.S.No. 1540 of 2017 that the plaintiff No.1 and his wife have been suffering from cardiac ailments and they are also Orthopedic patients and after vacating the suit schedule property, the plaintiffs intend to extend the suit schedule property for residential purpose, the defendant has agreed to vacate the suit schedule property within 3 months, but failed to do so.
4.It is submitted that, defendant was put on notice to vacate the premises as the same is required for plaintiff’s personal requirement, since the portion in which plaintiffs are residing is not sufficient. The defendant has changed his demeanor and attitude from May 2016 onwards and stopped paying rent from June 2016. Thereafter, he had been dodging the issue of vacating the premises on one pretext or the other and further stopped paying rents as submitted above. There are series of happenings from June, 2016 including the defendant assaulting the plaintiff on 0203 2017. A legal notice issued on 11012017 asking him to clear all the dues as on that date amounting Rs.50,000/ and to vacate the premises within the stipulated period mentioned in the legal notice dated 01032017.
5.It is submitted that after expiry of the stipulated time period, plaintiffs went to the defendant, asked him to pay the arrears and to vacate the premises. The defendant's brother Shaik Kareem picked up a quarrel and assaulted the plaintiffs causing injury on his forehead. The matter was reported to the police on same day by lodging a complaint on 02032017. The police inquired into the matter wherein the defendant's
Page 5 Common Judgment in O.S.No.2036 of 2017 & O.S.No. 1540 of 2017 brother admitted his guilt and all the accused i.e., the defendant and his brothers admitted and apologized for the conduct, gave a written undertaking to the plaintiff stating that all the arrears amounting to
Rs.63,000/, after deducting the advance amount of Rs.33,500/, the balance of Rs 29,500 would be cleared in three installments on 3103 2017, 30042017 and 31052017. The amount of Rs.29,500/ was split into 3 installments as mentioned above as Rs.10,000, Rs.10,000 and
Rs.9500/ respectively and that he would vacate the shop by 30062017
6. It is submitted that the defendant took another premises on rent which is about 100 yards away and established his shop under the name of “Bright Fashions Electric Drycleaners”, which is situated in Kamala
Residency, Plot No. 6, Madhura Nagar. Yousufguda main road, besides
Ratnadeep Supermarket, Hyderabad. Though the defendant had taken this premises and established his shop there, deliberately failed to vacate the premises as per the assurance given by him on 02032017. when the plaintiff went to him again on 14062017 to remind the defendant of the commitment given by him, once again it was the same conduct and this time the defendant and his other brother Jawed assaulted him and pushed him resulting in injuries. Further, the plaintiffs were threatened and intimidated of dire consequences if they insist to vacate the premises or for rents, as such the plaintiffs were constrained to approach the Police once again by lodging a complaint on 14062017. Plaintiffs were fed up with
Page 6 Common Judgment in O.S.No.2036 of 2017 & O.S.No. 1540 of 2017 the conduct and indecent behaviour of the defendant as he was bringing his friends to the shop who would consume alcohol and create nuisance in the locality. The Police took note of all these and more particularly the assault on the plaintiff on 14062017 and registered crime No. 517/2017 under Section 323 and 506 IPC. After inquiry, filed a charge sheet on 13 072017.
7.It is submitted that, the defendant suppressing all these facts filed a suit for perpetual injunction on 29062017 through his brother Shaik
Jaweed who is unconnected with the suit schedule premises and obtained an exparte injunction order against the plaintiff. It is submitted that, the defendant accompanied by three of his henchmen trespassed into the plaintiff’s house on 18032018 abused and threatens the plaintiff and his wife using unparliamentary language. Once again, plaintiffs had approached the Police by lodging a complaint on 18032018. under these circumstances, plaintiff filed the present suit for eviction.
8. Defendant filed written statement denying the allegations made by the plaintiffs. That the suit of the plaintiff is not maintainable for non joinder of necessary party i.e, Mr. Shaik Jaweed i.e., elder brother of the defendant. The defendant along with his elder brother (Shaik Jaweed) obtained suit schedule property on lease in the year 2007 under oral tenancy initially on a monthly rent of Rs.1760/ p.m. exclusive of electricity charges. It is denied that the initial monthly rent was Rs.3,500/
Page 7 Common Judgment in O.S.No.2036 of 2017 & O.S.No. 1540 of 2017
PM and further denied that the present monthly rent is Rs.7000/. The present monthly rent of suit schedule property is Rs.2500/pm, exclusive of electricity charges. It is denied that the defendant is not regular in payment of rent and further denied that the defendant failed to pay rent since 2016. In fact, the defendant paid rent at the rate of Rs.2500/ up to
February, 2017 on 02032017 to the plaintiff, for which receipts were not issued and further submitted that the plaintiff used to collect rents as per his convenience, some time after three months or six months.
9.It is further submitted that, there are no arrears of rent payable by the defendant in respect of suit schedule property. Infact in the month of
March, 2017 while collecting rents for the month February, 2017, the plaintiff asked the defendant to enhance the rent at abnormal rate i.e., from Rs.2500/ per month to Rs.5000/ per month, but the defendant did not agree to enhance the rent. Thus the plaintiff got annoyed and asked the defendant to vacate the suit schedule property on 02032017. The
Plaintiff on 02032017 through the Police tried to dispossess the defendant illegally from the suit schedule property. The defendant made oral complaint on 02032017 against the Plaintiff at PS. S.R. Nagar,
Hyderabad. It is denied that on 08072016 the Plaintiff and his children asked the defendant to vacate suit schedule property as same is required to him and further denied that the Plaintiff requires suit schedule property
Page 8 Common Judgment in O.S.No.2036 of 2017 & O.S.No. 1540 of 2017 for him. It is further denied that the Plaintiff on 08072017 along with his sons requested the defendant to vacate the suit schedule property.
10. It is denied that the defendant is not paying rent. When the defendant is not due any amount of rent in respect of suit schedule property question of vacating the same does not arise. The Plaintiff got issued a false and baseless notice to the defendant. The defendant did not receive said notice from the plaintiff. The defendant with a malafide intention and in collusion with postal authority got returned the envelope with a false endorsement as “UNCLAIMED". The Plaintiff termination of
Tenancy in respect of suit schedule property is not valid as no notice was served upon the defendant, thus the Plaintiff has no right to file this false suit against the defendant and in respect of suit schedule property for eviction. The plaintiff in also not entitled for any damages or alleged damages Rs.15000/ p.m. from 01032017 as no notice is served upon the defendant, under law. It is further submitted that, when he has received notice and there was no agreement with the Plaintiff to vacate suit schedule property question of vacating the suit schedule property does not arise and when the defendant is not due any arrears of rent, question of payment of alleged arrears does not arise. It is further admitted that the defendant and his elder brother who are tenants filed a suit
OS.No.1540/17 for perpetual injunction as, the Plaintiff tried to dispossess
them illegally from the suit schedule property.
Page 9 Common Judgment in O.S.No.2036 of 2017 & O.S.No. 1540 of 2017
11. The Defendant submits that the Plaintiff on 02032017 threatened the defendant to enhance rent at abnormal rate of Rs.5000/ p.m. and tried to evict the defendant and his brother and took signatures on blank papers, and on 05022017 the Plaintiff along with his associates tried to evict the defendant illegally from the suit schedule property.. It is further submitted that the Plaintiff is not entitled for any decree as prayed for against the defendant in respect of suit schedule property as the same is not governed by Transfer Of Property Act (but governed by Rent Control
Act), therefore, he prays to dismiss the suit.
12. Defendant filed additional written statement denying that the suit property is required by the plaintiffs for their personal use and further stated that, in fact the premises in which defendants are in occupation is leased out for commercial purpose. It is denied that the defendant ever assured to the plaintiff that he is looking for alternate premises for his dry cleaning shop. It is denied that written understanding was given to the plaintiff, that all arrears amount of Rs.63,000/ would be cleared on three installments and further denied that the defendant agreed to vacate the suit property by 30062017.
Pleadings in O.S.No 1540 of 2017 :
13. This suit is filed for perpetual injunction restraining the defendants, their agents, servants, person or persons claiming through and under them
Page 10 Common Judgment in O.S.No.2036 of 2017 & O.S.No. 1540 of 2017 from interfering with the plaintiffs peaceful possession and enjoyment over the suit schedule property.
14. Plaint averments: The plaintiffs are brothers, carrying electric dry cleaning business jointly under the name and style of “M/s. New
Fashion Electrical Dry Cleaners” at shop No.83191/429 S2(161 D)
Situated at Vengal Rao Nagar, Hyderabad, T.S., having obtained trade license in the name of plaintiff No.2. Initially the plaintiffs obtained the suit schedule premises under oral tenancy on a monthly rent of Rs.1750/ from the defendant No.1 and the present monthly rent is Rs.2500/ exclusive of electricity charges.
15. The plaintiffs further states that, the defendant No.1 used to collect monthly rent from the plaintiffs as per the convenience of the defendant
No.1 i.e., after intervals of 2 or 3 months period without passing valid receipts. The plaintiffs submits that, the defendant No.1 while collecting rent up to February, 2017 from the plaintiffs on 02032017 demanded to enhance monthly rent from Rs.2500/ to Rs.5000/ per month for which the plaintiffs did not agree to enhance monthly rent at abnormal rate as such the defendant No.1 got annoyed and asked to vacate the suit schedule premises and. on the same day the defendant through police,
S.R. Nagar called the plaintiff No.2 to S.R. Nagar police station and made him sit more than 3 hours. The plaintiff No.2 on 02032017 made oral complaint against the defendants to P.S S.R. Nagar.
Page 11 Common Judgment in O.S.No.2036 of 2017 & O.S.No. 1540 of 2017
16. The plaintiffs submit that, on 02032017 at the instigation of the defendants, the subinspector of the police S.R Nagar obtained signature of plaintiff No.2 on 4 blank papers on the pretext of writing complaint. It is further submitted that the defendant No.1 even after the said incident, collected monthly rent in respect of the suit schedule premises for the months of March 2017 and April 2017 from them as usual without passing any receipts and on 05062017 the defendants collected rent for the month of May, 2017 from the plaintiffs as usual without passing receipt and later on tried to dispossess the plaintiffs illegally from suit schedule premises and the plaintiffs could retain their possession with the help of well wishers by resisting the illegal acts of the defendants. The plaintiffs gave oral complaint to police S.R. Nager, but the police S.R. Nagar did not take any action against the defendants.
17. The plaintiffs submits that on 28062017 the defendants and their associates again visited to suit schedule premises and tried to dispossess the plaintiffs illegally, but due to the strong resistance, the defendants could not succeeded in their illegal aim and left the suit schedule premises. The plaintiffs gave a written complainant to police S.R. Nagar against the defendants and their associates, the police S.R. Nagar advised to the plaintiffs to go to civil court, as matter relates to civil nature. Under these circumstances, the plaintiffs are left with no other alternative except
Page 12 Common Judgment in O.S.No.2036 of 2017 & O.S.No. 1540 of 2017 to approach the court, for reliefs of the perpetual injunction. Hence this suit.
18. Written statement is filed by the defendant No.1 denying the allegations made by the plaintiffs and further submitted that the plaintiffs obtained the suit schedule property on oral agreement on a monthly rent of Rs.3,500/ per month excluding electricity and water charges and gradually, the rent has been enhanced and lastly the plaintiffs paid rents of Rs.7,000/ for the month of May, 2016. The defendants herein lodged a complaint against the plaintiffs since they are subletting the suit schedule property to third persons. Moreover the defendants herein have not illegally made any attempt to interfere into the peaceful possession over the suit schedule property nor made any attempt to dispossess the plaintiffs illegally.
19.The plaintiffs are not punctual in paying the rents in respect of the suit schedule property, since the plaintiffs made default in payment of rents since June, 2016 onwards, the defendants herein got issued a legal notice Under Sec. 106 of T.P. Act dated 11012017 and called upon the plaintiffs to vacate the petition schedule property by 01032017 since the tenancy was terminated by the end of 28022017 and further called upon the plaintiffs to pay the arrears of rents @ Rs.7,000/ per month from
May, 2016 to December, 2016 and further demanded the plaintiffs to pay damages @ Rs.15,000/ per month, subsequent to termination of tenancy
Page 13 Common Judgment in O.S.No.2036 of 2017 & O.S.No. 1540 of 2017 i.e., March, 2017 onwards till handing over possession to the defendants.
It is further submitted that the above said notice was returned with an endorsement as "NOT CLAIMED" and the same amounts to service of notice and no reply has been given to the notice issued to the plaintiffs, the defendants filed the eviction suit against the plaintiffs herein vide
O.S.No. 2036 of 2017. Therefore prays to dismiss the suit.
20. Adoption memo filed by defendant Nos.2 to 6 adopting the written statement of defendant No.1.
21. Basing on the pleadings, following Issues were framed in
O.S.No.2036/2017:
1). Whether this court having jurisdiction to entertain the suit?
2). Whether the suit is bad for non joinder of necessary party?
3). Whether the plaintiff is entitled for the eviction of defendant from the suit schedule property and the plaintiff is entitled for recovery of peaceful possession of the suit schedule property from the defendant as prayed for?
4) Whether the plaintiff is entitled for recovery of arrears of rent for a sum of Rs.84,000/ from the defendant as prayed for?
5). Whether the plaintiff is entitled for damages from March, 2017 till the delivery of possession of suit schedule property as prayed for?
6). To what relief?
While so, the following issues were settled in O.S.No. 1540/2017 : 1). Whether the plaintiff is entitled to the relief of perpetual
Page 14 Common Judgment in O.S.No.2036 of 2017 & O.S.No. 1540 of 2017 injunction against the defendants in respect of the suit schedule property as prayed for?
2). To what relief?
22. After the framing of Issues in both the suits, both the suits were clubbed for joint trial and disposal. Both parties adduced evidence in
OS.No.2036/2017 (suit for eviction).
23.Since both the suits were clubbed for joint trial and disposal, both parties adduced evidence in OS.No. 2036/2017 (Eviction Suit).
For the sake of convenience, the parties are referred to in this common judgment as per their array in OS.No.2036/2017 i.e., eviction suit.
Trial proceedings.
24. During the course of trial, sole plaintiff in OS.No.2036/2017 died and his LR’s were impleaded as plaintiff Nos.3 to 7 in the suit as per the orders passed in IA.No. 1224/2022 dated 01112022. On the side of plaintiffs PW1 to PW4 were examined and Ex.A1 to Ex.A15 were marked. Ex.A1 to Ex.A14 marked through PW1 and Ex.A15 was marked through PW2. Ex.A16 to Ex.A21 were marked on confrontation during cross examination of DW1 by the learned counsel for plaintiffs.
On the side of defendants, DW1 to DW3 were examined and Ex.B1 to
Ex.B7 were marked through DW1.
25.Heard arguments on both sides and perused the material placed on record.
Page 15 Common Judgment in O.S.No.2036 of 2017 & O.S.No. 1540 of 2017
Findings on Issues No.1 and 3 in OS.NO. 2036/2017
26.The suit in OS.No. 2036/2017 is instituted by the plaintiff No.1 for eviction of the defendant. Plaintiff No.3 filed chief examination affidavit as PW1 and deposed that Late Mohd. Hussain, his father was the owner of the suit schedule property and the defendant is the tenant since March, 2007, initially on a monthly rent of Rs.3,500/ per month and the same was gradually enhanced to Rs.7,000/, exclusive of water and electricity charges and that the defendant failed to pay rents from
June, 2016 onwards. PW1 further deposed that the premises are required for their bonafied personal use and they intend to expand the ground floor accommodation as such orally requested the defendant to vacate the premises and since the defendant failed to vacate the premises, legal notice dated 11012017 under Section 106 of the
Transfer of Property Act was issued to the defendant under Ex.A1 calling upon him to pay arrears of rent and to vacate the premises by 01032017. PW1 further deposed that when the defendant failed to vacate the premises, father of PW1 went to the premises and defendant’s brother Shaik Kareem had picked up quarrel and caused injuries, as such a complaint was filed by the father of PW1 in P.S.
S.R.Nagar dated 02032017 under Ex.A3. It is further deposed that the defendant and his brother gave a written undertaking before the police under Ex.A5, wherein the defendant promised to vacate the
Page 16 Common Judgment in O.S.No.2036 of 2017 & O.S.No. 1540 of 2017 premises by 30062017 by clearing dues of Rs.29,500/ in three installments. PW1 further deposed that, the defendant had taken another premises nearby and was running a dry cleaning business in
Kamala Residency and the father of PW1 on 14062017 went to remind the commitment given by the defendant, his brother by name
Jaweed assaulted the father of PW1 resulting in injuries, leading to criminal proceeding on a complaint filed by the father of PW1 under
Ex.A4. Hence they filed the suit for eviction of defendant from the suit premises.
27. PW2, fatherinlaw of PW1 filed chief examination affidavit and deposed that he visited the house of Late Mohammad Hussain on 02032017, when he came to know that Mohammad Hussain was assaulted by his tenant and he accompanied Mohammed Hussain to
P.S.Sanjeeva Reddy Nagar on 02032017 and further deposed that defendant gave an undertaking before the police that they will vacate the premises and Ex.A15 was written by him at the police station.
28.PW3 filed chief examination affidavit stating that he knows the family of Mohammed Hussain since 20 years and deposed that
Mohammed Hussain and their family was harassed by the defendant and due to the harassment, Mohammed Hussain developed severe health issues and succumbed to injuries. PW3 further deposed that the defendant and his brother had taken separate mulgi and carrying on
Page 17 Common Judgment in O.S.No.2036 of 2017 & O.S.No. 1540 of 2017 their business of dry cleaning in the said premises. During cross examination PW3 stated that he used to pass through the suit schedule premises every now and then, as such he came to know about the ill health of the father of PW1 and further stated that on one occasion, he saw the defendant pushing the father of PW1 and informed PW1. PW4 deposed on the same lines as PW3. During cross examination PW4 stated that all the three sons of Mohammed Hussain are residing in the house which is opposite to his house.
29.After closure of the evidence on the side of the plaintiffs, the defendant in OS.NO. 2036/2017 filed chief examination affidavit stating that, he along with his brother had obtained the suit schedule property on lease in the year 2007, initially on a monthly rent of
Rs.1,750/ and the same was enhanced to Rs.2,500/ per month. DW1 denied arrears of rent and further deposed that Mohammed Hussain used to collect rents without passing any receipt and that while collecting the rents for the month of February, 2017, Mohammed
Hussain demanded enhancement of rent from Rs.5,000/ to Rs.7,000/ per month, which was not agreed upon by the defendant, as such plaintiff No.1 asked the defendant to vacate the suit schedule premises.
DW1 further deposed that plaintiff No.1 attempted to evict them forcibly, as such he filed the suit for perpetual injunction against the plaintiff vide OS.No. 1540/2017 and the legal notice issued under
Page 18 Common Judgment in O.S.No.2036 of 2017 & O.S.No. 1540 of 2017
Section 106 of Transfer of Property Act was never served upon him and further alleged that the plaintiff has colluded with postal authorities and returned the notice as “unclaimed”. DW1 further deposed that he had been sending rents through money orders regularly to plaintiff under Ex.B2 and that he got issued legal notice to the plaintiff on 29102018 under Ex.B3, requesting to receive the rents or to provide bank account details.
30.During cross examination DW1 stated that OS.No.1540/2017 is filed by them since the landlord asked them to increase the rent and further admitted that there were criminal complaints filed by the landlord. DW1 further admitted his signature on Ex.A15 and further admitted that CC.No.240/2018 was registered against him and his brothers and that they have pleaded guilty to the offences mentioned in CC.NO. 240/2018, marked as Ex.A14. DW1 was confronted with the receipt of Fashion Electric Dry Cleaners of Kamala Residency marked as Ex.A16, for which he stated that a worker who works in his shop is running it and lateron stated that the workers father is running the shop.
31.Further DW1 was confronted with the photographs marked as
Ex.A17, Ex.A18 and Ex.A21, in which he identified himself and admitted his presence in the opening of show room of Fashion Dry
Cleaners, Kamala Residency. When confronted with the receipt of
Page 19 Common Judgment in O.S.No.2036 of 2017 & O.S.No. 1540 of 2017
Sl.No.7491, DW1 has admitted that it belongs to the shop and the same was marked as Ex.A19. DW1 admitted his cell phone number as 9908060368 and further admitted that the mobile number mentioned in receipt marked as Ex.A16 belongs to him, but denied the suggestion that he has applied separate mulgi and running the business under the name of Fashion Dry Cleaners, Kamala Residency. DW2 fatherinlaw of DW1 and DW3 friend of DW1 filed their chief examination affidavits and stated that they are also carrying the business of Electrical Dry
Cleaners with almost same name.
32.During cross examination DW2 stated that he is not aware of what are all the cases pending between plaintiff and defendant and that he does not know in which case he is deposing as DW2. During cross examination of DW3 stated that defendant is his friend and that he knows him for the last 10 to 15 years and he does not have idea about age of the defendant.
33.On perusal of the entire oral and documentary evidence on record, admittedly there is no dispute with regard to the jural relationship between the plaintiff and defendant. Further there is no dispute with regard to the possession of the defendant over the suit schedule property as a tenant. The dispute is with regard to the quantum of rent and arrears of rent. The plaintiffs contend that the monthly rent is Rs.7000/ per month and that the defendant had
Page 20 Common Judgment in O.S.No.2036 of 2017 & O.S.No. 1540 of 2017 defaulted in payment of rents from June, 2016 onwards. Whereas, the defendant asserts that the monthly rent is Rs.2500/ per month and that he had paid rent regularly till February, 2017. In a case of this nature, the onus is on the tenant to prove the payment of rent by producing sufficient documentary evidence. Though the defendant filed Ex.B2, money order acknowledgments, DW1 himself admitted that the postal money order remittance were done only after filing the suit for eviction. Hence Ex.B2 and Ex.B3, money order acknowledgments and legal notice issued to the plaintiffs appeared to be an afterthought, to procure evidence in the suit for perpetual injunction in OS.No. 1540/2017 to create defence.
34. During cross examination, PW1 stated that he has not filed document to show that the initial rent is Rs.3500/ per month but voluntarily added that in the legal notice under Ex.A1, the initial rent was mentioned as Rs.3500/ per month. When the defendant has taken a specific plea that the rent is Rs.2500/ per month but not
Rs.7000/ per month and that he had paid rents till February, 2017, it is the burden on the defendant to prove the said contention. Plaintiff
No.1 has issued Ex.A1 stating that the present rent is Rs.7000/ per month and that the defendant is due from June, 2016, but the same is not denied by the defendant through a reply notice. Furthermore, the defendants claim of monthly rent of Rs.2,500/ per month for the suit
Page 21 Common Judgment in O.S.No.2036 of 2017 & O.S.No. 1540 of 2017 mulgi admeasuring 10 X 12 sft, situated at Vengal Rao Nagar, taken on lease for commercial purpose is unbelievable. Though the defendant claimed that he had paid rent regularly up to February, 2017, he failed to produce any evidence to prove his contention.
35.Though DW2 and DW3 were examined on behalf of defendant, during cross examination , DW2 stated that he does not know in which case he is deposing as DW2 and further DW3 does not know the age of the defendant, as such it appears that there knowledge is very limited, hence this court opines that their evidence is not credible. Hence the defendant has failed to discharge the burden of proving that rent was
Rs.2500/ per month and that it was paid regularly up to February, 2017. In the absence of rebuttal to the legal notice and in the light of the admission of DW1, it is to be concluded that the prevailing rent is
Rs.7000/ per month and that the defendant has committed default from June, 2016 onwards. In view of the same, it can be held that this court has jurisdiction to entertain the suit.
36.Further, the defendant has taken another plea that the quit notice dated 11012017 under Ex.A1 issued by the plaintiff No.1, terminating the tenancy, calling upon the defendant to vacate the premises by 01032017, by paying arrears of rent was never served to the defendant.Ex.A13 goes to show that the postal cover was sent to the defendant on the same address as shown in the cause title of plaint
Page 22 Common Judgment in O.S.No.2036 of 2017 & O.S.No. 1540 of 2017 and returned as unclaimed. The suit summons was served to the same address and the defendant appeared and filed vakalat and written statement. In such circumstances under the provisions of Section 27 of the General Clauses Act, and Section 114 of the Indian Evidence Act, it is to be assumed that the said legal notice under Ex.A1 was validly served upon the defendant. Though the learned counsel for defendant, during cross examination of PW1 tried to elicit that their shop is always open and the legal notice was never served upon him and that the plaintiffs in collusion with the postal authorities have returned the
Ex.A1 as unclaimed. It is for the defendant, to establish that the postal authority at the instance of plaintiffs got Ex.A1 returned as unclaimed.
Further, the defendant did not choose to examine the postal authorities to prove this contention, hence it can be said that the defendant, having knowledge of contents of Ex.A1, has deliberately avoided the service of legal notice. Further, defendant contended that the plaintiffs have not filed original postal cover, as such Ex.A13, copy of postal cover cannot be considered, in this regard, it is pertinent to mention that the plaintiff has filed the petition to receive the copy of postal cover as secondary evidence as the original was misplaced and the said petition was allowed by this court, hence, Ex.A13 is admissible in evidence.
37.Further, the plaintiffs contend that the suit schedule premises
Page 23 Common Judgment in O.S.No.2036 of 2017 & O.S.No. 1540 of 2017 was required for their boanfide personal use. Though not strictly required to prove under Section 106 of the Transfer of Property Act, the plaintiff still established that the sons of Mohammad Hussain are residing in the same premises and further filed medical record of plaintiff No.1 and his wife under Ex.A10 and Ex.A12. Moreover, the photograph under E.xA17, Ex.A18 and Ex.A21 and the receipts under
Ex.A16 and Ex.A19 clearly goes to show that the defendant is running business at Kamala Residency. Furthermore, the mobile numbers and photographs were admitted by DW1 during cross examination. This supports the plaintiffs case that the defendant has acquired alternate premises and deliberately not vacating the suit premises despite bonafied requirement of the said premises to the landlord.
38.Further, the plaintiffs produced Ex.A15, wherein the defendant had given an undertaking that he would vacate the premises by 3006 2017 and pay arrears of rents amounting to Rs.29,500/ in installments. Though the defendant initially denied the undertaking stating that Ex.A15 is fabricated document, no steps have been taken by the defendant to prove the said contention. Further during cross examination, DW1 has admitted that the signature on Ex.A1 appears to be his signature, hence it is deemed that he has admitted the undertaking given under Ex.A15. It is settled law that the plaintiff in a suit which has been instituted on the basis of a notice issued under
Page 24 Common Judgment in O.S.No.2036 of 2017 & O.S.No. 1540 of 2017
Section 106 of the Transfer of Property Act, is not required to putforth any specific ground for seeking the relief of eviction, since the said provision does not stipulate any such provision, inspite of this, the plaintiff established the bonafide requirement of the suit schedule premises and default of payment of rent by the defendant.
39.Further, in a suit of eviction, if the jural relationship is admitted the defendant upon receipt of the notice under Section 106 of the
Transfer of Property Act is bound to vacate the premises. In the instant case, as already stated, the jural relationship was never denied by the defendant and the plaintiffs have duly given the notice of termination under Ex.A1 by invoking Section 106 of Transfer of Property Act, demanding the defendant to vacate the premises. When once the landlord have terminated the lease, the tenant has no other option except to vacate the premises. In this circumstances the plaintiffs are entitled to seek the relief of eviction against the defendant. Hence
Issue No.1 and 3 are answered in favour of plaintiff in
OS.No.2036/2017.
ISSUE NO.2 in OS.No. 2036/2017.
40.The defendant has raised a plea that the suit is bad for non joinder of necessary party. The defendant contended that his brother
Shaik Jaweed is also a tenant in the suit schedule premises, as such he is a necessary party to the suit. On perusal of the documentary
Page 25 Common Judgment in O.S.No.2036 of 2017 & O.S.No. 1540 of 2017 evidence produced by the defendant, Ex.B4 and Ex.B6, trade license renewal and trade license notice, sufficiently establish that the trade license was issued in the name of Shaik Saleem, as such the defendant’s own documents prove that Shaik Saleem is running the business in the suit schedule premises and that he is the tenant of the suit schedule premises. In view of the above, it is to be concluded that
Shaik Jaweed is not a necessary party to the suit. Hence Issue No.2 in
OS.No. 2036/2017 is answered in favour of the plaintiffs.
Findings on Issue no.1 in OS.NO. 1540/2017
41.As already stated, there is no dispute with regard to possession of the suit schedule premises as on the date of filing of the suit in the capacity of tenant. Infact, even as on today also, the defendant is in possession and the plaintiffs being the landlords of the suit property have taken steps for eviction of the defendant by filling the suit in
OS.No.2036/2017. However, in an attempt to prove his possession,
the defendant produced oral and documentary evidence. As already stated, the defendant got himself examined as DW1, wherein he categorically spoke about his possession over the suit schedule mulgi and also about the sudden enhancement of rent and also the alleged interference of the plaintiff No.1. The defendant also produced Ex.B1 and Ex.B7, electricity bills, Ex.B5, photographs which prove the possession of the defendant over the suit schedule premises. Further
Page 26 Common Judgment in O.S.No.2036 of 2017 & O.S.No. 1540 of 2017
Ex.B4 and Ex.B6, trade license renewal and notice goes to show that the defendant is doing business at the suit schedule premises.
However, there is no dispute with regard to possession of the defendant over the suit schedule premises. Though the defendant contended that the plaintiff No.1 on 28062017 tried to dispossess the defendant from the suit schedule property, Ex.A3 to Ex.A7 and Ex.A9 goes to show that the defendant and his brother had assaulted plaintiff
No.1, for which complaints were given by plaintiff No.1, leading to criminal proceeding, wherein defendant and his brothers were convicted for the said offence, as evident under Ex.A14.
42.Since the plaintiffs have already resorted to due process of law for evicting the defendant from the suit premises by filing a suit for eviction vide OS.No. 2036/2017, which is being disposed off today, the further continuation of the suit filed by the defendant seeking the relief of perpetual injunction against the landlord is not necessary. Hence the present suit for perpetual injunction is liable to be dismissed.
Accordingly, issue No.1 is answered against the defendant i.e., plaintiff in OS.No.1540/2017.
Findings on Issue No.4 in OS.No. 2036/2017.
43.The plaintiffs claimed arrears of rent of Rs.84,000/ and further during the pendency of the suit, the learned counsel for the plaintiff filed a petition under order 15A of CPC to direct the defendant to
Page 27 Common Judgment in O.S.No.2036 of 2017 & O.S.No. 1540 of 2017 deposit arrears of rent from June, 2016 till date @ Rs.7000/ per month amounting to Rs.5,60,000/. As already discussed, the defendant failed to establish that he had paid rents till February, 2017, in view of the same the plaintiffs are entitled for arrears of rent from
June, 2016 till the date of disposal of the suit @Rs.7,000/ per month amounting to Rs.7,42,000/ (Rs. 7000/ X 106 months), subject to payment of court fee. Therefore, issue No.4 is answered in favour of the plaintiffs.
Issue No.5 in OS.NO. 2036/2017
44.Though the plaintiffs pleaded for mesne profits, the same cannot be decided in the present suit, a separate petition is required to be filed by the plaintiffs under Orders 20 Rule 12 of CPC to ascertain mesne profits.
Issue NO.6 in O.S.NO. 2036/2017
45.In view of the forgoing discussion in Issue Nos.1 to 5, this court comes to a conclusion that the suit filed by the plaintiffs is partly decreed with costs.
In the result, OS.No.2036/2017 is partly decreed with cost as prayed for and the defendant is directed to vacate and hand over the vacant possession of the suit mulgi to the plaintiffs within two months from the date of this judgment.
The defendant is directed to pay arrears of rent from June, 2016
Page 28 Common Judgment in O.S.No.2036 of 2017 & O.S.No. 1540 of 2017 till the date of disposal of the suit @Rs.7,000/ per month amounting to Rs.7,42,000/ (Rs. 7000/ X 106 months) to the plaintiff within two months from the date of this judgment, subject to payment of court fee. The claim of the plaintiffs for mense profit is hereby rejected. The plaintiff is at liberty to file separate petition under Order XX Rule 11 of
CPC for ascertainment of the mesne profits.
Issue No. 2 in OS.NO. 1540/2017.
46. In view of the forgoing discussion in Issue No.1, this court comes to a conclusion that the suit filed by the plaintiffs in OS.No.
1540/2017 is dismissed without costs.
In the result the suit is dismissed. No cost.
Dictated to the Stenographer, Corrected and Pronounced by me in the
open Court on this 25 th Day of April, 2025.
XXI JUNIOR CIVIL JUDGE,
FAC: V JUNIOR CIVIL JUDGE,
CITY CIVIL COURT, HYDERABAD
APPENDIX OF EVIDENCE
WITNESSES EXAMINED
FOR PLAINTIFFS: FOR DEFENDANTS:
PW1 : Mohd.Abdul Rasheed. DW1 : Shaik Saleem. PW2 : Mohd.Moulana. DW2 : Mohammed Rafiq PW3 : G.Narasimulu. DW3 : Mohammed Azizul Rahman. PW4 : Challa Santosh Reddy.
Page 29 Common Judgment in O.S.No.2036 of 2017 & O.S.No. 1540 of 2017
EXHIBITS MARKED
FOR PLAINTIFF:
Ex.A1 Office Copy of Legal Notice dated 11012017 got issued by the plaintiff to the defendant.
Ex.A2 Copy of plaint in O.S.No.1540/2017.
Ex.A3 Copy of complaint dated 02032017 submitted by plaintiff to the inspector of Police S.R.Nagar.
Ex.A4 Office copy of complaint dated 01072017 submitted by plaintiff to the Inspector of Police S.R.Nagar.
Ex.A5 Acknowledgment given by police.
Ex.A6 CC of charge sheet in Crime No.514/2017 of P.S.SR.Nagar.
Ex.A7 CC of FIR in crime No. 517/2017 of P.S. SR.Nagar.
Ex.A8 Office copy of letter dated 09072017 given by plaintiff to Vengal Rao Nagar Welfare Association.
Ex.A9 Acknowledgment dated 18032018 given by police.
Ex.A10 Bunch of medical record pertaining to Smt. Malan Farzana (Wife of Plaintiff)
Ex.A11 Electricity bills (Nos.2).
Ex.A12 Bunch of Medical Record pertaining to Sri. Mohammed Hussain (Father of plaintiff).
Ex.A13 Xerox copy of returned postal cover with endorsement“Unclaimed” together with xerox copy of postal receipt on the reverse side of Ex.A13 (marked as secondary evidence) vide order dated 30062023 in I.A.No. 581/2023.
Ex.A14 CC of docket dated 10022023 in CC.No.240/2018 on the file of
Hon’ble III ACMM, Hyderabad.
Ex.A15 Undertaking dated 02032017 signed by Shaik Saleem (Defendant).
Page 30 Common Judgment in O.S.No.2036 of 2017 & O.S.No. 1540 of 2017
Ex.A16 Receipt with mobile number.(Marked through confrontation)
Ex.A17 Photograph (Marked through confrontation)
Ex.A18 Photograph (Marked through confrontation)
Ex.A19 Receipt with Sl.No.7491 belongs to shop (Marked through confrontation)
Ex.A20 Shaik Kareem’s mobile number and his banking name with UPI ID. (Marked through confrontation)
Ex.A21 Photograph along with pen drive (Marked through confrontation)
FOR DEFENDANTS:
Ex.B1 Electricity Bills payment receipts (Nos.3).
Ex.B2 eMO acknowledgments (Nos.27) (marked subject to objection on the ground that they are fabricated documents).
Ex.B3 Office copy of the legal notice dated 29102018 got issued by defendant/tenant to the plaintiff/landlord.
Ex.B4 Trade License renewal dated 11012024 along with computer print out of paytm receipt( Nos.2) (computer generated printout) marked subject to objection on the ground that it is not accompanied by 65B certificate.
Ex.B5 Photos (Nos.4) along with CD.
Ex.B6 Trade License bearing No.TL/109691 (computer generated printout) (Marked subject to objection on the ground that it is fabricated documents and it is not accompanied by 65 B certificate)
Ex.B7 Electricity bills and receipts.
Page 31 Common Judgment in O.S.No.2036 of 2017 & O.S.No. 1540 of 2017
XXI JUNIOR CIVIL JUDGE,
FAC: V JUNIOR CIVIL JUDGE,
CITY CIVIL COURT, HYDERABAD