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IN THE COURT OF THE VII ADDITIONAL DISTRICT JUDGE, GUDUR
SPSR NELLORE DISTRICT.
Present: Sri S.Ramanaiah,
VII Additional District Judge,
Gudur.
Dated, this the 06th day of April, 2022
Appeal Suit No.19/2016
Desireddy Raghava Reddy, Son of Hanumanth Reddy, Hindu, Aged about 65 years, business, Residing at Door No.1/452-1, Malavya Nagar, Gudur, SPSR Nellore District… Appellant
Vs.,
1. Pasupuleti Jayaprada (died),
2. P.V. Chalapathi Rao, Son of late Koteswara Rao, Hindu, Aged about 51 years, business, Residing at S.N.P. Agraharam, Bapatla, Guntur District;
3. Pasupuleti Phalguna Rao (died), Son of late Koteswara Rao;
4. Pasupuleti Siddartha, Son of late Subba Rao, Hindu, Aged about 30 years, residing at S.N.P. Nagar, Bapatla, Guntur District;
5. Akula Sudharani @ Pasupuleti Sudharani, Wife of late Palguna Rao, Hindu, Aged about 55 years;
6. Pasupuleti Ram Theja, Son of late Palguna Rao, Hindu, Aged about 23 years; and
7. Pasupuleti Chandana, Wife of Amarnadh, Hindu, Aged about 26 years;
Nos.5 to 7 are residing at Flat No.208, II Floor, Manohar Apartments, OU Road, Vidyanagar, Hyderabad – 500 044.
(Nos.5 to 7 are added as per orders In I.A. No.10/2022, dt.09.02.2022 L.Rs. of 3rd respondent Pasupuleti Phalguna Rao) … Respondents
THIS APPEAL IS PREFERRED AGAINST THE JUDGMENT AND DECREE
PASSED BY THE LEARNED PRINCIPAL JUNIOR CIVIL JUDGE, GUDUR
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ON 06.09.2010 IN
O.S.No.373/2002
1. Pasupuleti Jayaprada (died) L.Rs
2. Pasupuleti V. Chalapathi Rao,
3. Pasupuleti Phalguna Rao, and
4. Pasupuleti Siddartha … Plaintiffs
Vs.
Desireddy Raghava Reddy… Defendant
This appeal came up on 22.03.2022 for final hearing before me in the presence of Sri P.V. Sai Kumar Reddy, Advocate for the appellant and Sri P. Bhaskar Rao, Advocate for the respondents, after hearing the counsels of both parties and on perusing the material on record and the matter having stood over to this day for consideration, this court delivered the following:
J U D G M E N T
This is an appeal preferred against the judgment and decree passed by the learned Principal Junior Civil Judge, Gudur on 06.09.2010 in O.S.
No.373/2002 which was filed to pass a decree for ejectment of defendant and recovery of possession of the plaint schedule property from defendant by so directing him and through process of Court, if necessary, and for costs of the suit.
2.The brief averments of the plaint are as follows:
The plaintiffs are the owners of the plaint schedule property, which is part of ‘Dasari Siddaiah Naidu Shopping Complex’. It consists of sixteen shops, two godowns and one house. The said house is the plaint schedule property. Each of the said shops, godowns and plaint schedule property is given lease for two years periodically. The schedule property and 7 other shops in the said complex are leased out for 2 years each, whose period came to end by 31st May, 2002 while the lease period of two years for others comes to an end by 31st December, 2002.
The plaint schedule property was leased out to the defendant afresh for every two years, fixing rents afresh. An advance of Rs.7,000/- paid by 3 the defendant, which is to be returned to him without interest at the time of vacating the plaint schedule property, after making adjustment, if any. So, the rent. So, the rent was enhanced from time to time between the lease period and finally the lease was between 01.6.2000 and 31.5.2002 was
Rs.2,750/- and the defendant obtained vouchers whenever he paid rents in cash and mostly he sent rents by Demand Drafts. Fresh lease was not given to the defendant for the schedule property. Therefore, the lease period terminated by 31.5.2002. The defendant ought to have vacated the plaint schedule property without notice from the plaintiff by 01.06.2002 as per mutual agreement between them. A fresh lease is not given to the defendant. So, the possession of schedule property is unlawful and liable for damages for unlawful use and occupation of the premises.
Notice under Section 106 of Transfer of Property Act was issued to the defendant asking him to vacate the plaint schedule property. Instead of vacating the premises, he issued notice with false allegations.
The plaint schedule property is required for the personal requirement of the plaintiffs’ family members. The 1st plaintiff’s son by name P.V.
Chalapathi Rao i.e., 2nd plaintiff requires schedule property for opening ‘Bakery’ in partnership with one Dhanapal, who is already in the said business. The plaintiffs also planned to remodel the schedule house by converting the front portion into shops and undertaking consequent alterations in the back portion of the schedule house. After such alterations and conversions the front portion can also be used as shop-cum-show room for ‘Bakery’, while the rest of the schedule house will be used for cooking and preparation of ‘Bakery’ goods and also for residential purpose.
The schedule property is an old house and is in dire necessary of extensive repairs. The acts of the defendant causing intentional damage to the schedule property. The plaintiffs required the possession of the schedule 4 property to save it from the present condition, caused by negligence, misuse and intentional damage by the defendant.
The defendant did not pay rent from December, 2001 and committed default. The defendant sent a Demand Draft form Rs.4,600/-, which is supposed to be the rent of two months. The defendant sent the amount with a deficit of Rs.900/- and did not pay it, in spite of several demands. So, he committed default in payment of rents and he is liable for eviction on this ground also. Therefore, the plaintiffs filed the suit for possession of the plaint schedule property from the defendant.
3.The defendant filed written statement admitting that the plaint schedule property belong to the plaintiffs. He denied the allegations of the plaint and submitted that the Power of Attorney Holder should have been filed in original along with application to permit him to prosecute the suit and further under Section 85 of the Indian Evidence Act, 1872, the General
Power of Attorney must be either registered under Article 42 of Schedule I-A of the Indian Stamp Act, 1899 or should have been authoricated by Notary public or by a ‘Judge’ within the meaning of Sec.19 of Indian Penal Code, 1860. So, mere filing of xerox copy does not empower the Power of Attorney holder to sign and verify the plaint.
He submitted that since 1986 the defendant has been running a lodging house with name and style ‘Vishnu Priya Lodge’ and the present rate of rent for the said lodge building is Rs.2,750/-. He admitted that he paid an advance amount of Rs.7,000/- and he also admitted he sent rents to plaintiff through Demand Drafts. He submitted that the lease expired by efflux of time on 31.8.2002. Automatically the defendant need not vacate the plaint schedule property without even quit notice by the plaintiff under Sec.116 of
Transfer of Property Act, the defendant was tenant holding over and it is 5 time subsequently a quit notice given and a reply notice sent.
The plaintiff’s son P.V. Chalapathi Rao is not a Partner in any Bakery business with one Dhanapal who is said to be already in business. The bonafide requirement pleaded by the plaintiff is not correct. The plaintiff’s family are permanent residents of Bapatla town, which is at a distance of about 125 miles from Gudur. On 01.6.2002 the defendant handed over vacant possession of one shop room to the plaintiff and the rent advance of
Rs.12,000/- was also returned. After taking delivery of possession from the defendant, the plaintiff inducted a new tenant into the said shop room who is running a cool drink and fruit juice shop. He also submitted that the contention of the plaintiff in the plaint that the suit schedule property is badly in need retensive repairs is false. As per approved plan over all repairs to the building were carried out in the year 1994. The plaintiff and her husband asked the defendant to construct 2 rooms one on each side to the verandah i.e., one towards East and another towards West and also asked the defendant to incur repair expenses and promised to continue the defendant as lessee from 01.06.2002 for a period of 5 years on the same old rent and that the investment of Rs.1,00,000/- will have it an consideration.
He denied that he committed default in payment of rents and after sending quit notice the plaintiff refused to receive the Demand Drafts and sent them back. He will deposit the refused rents into Court even now. The quit notice issued by the plaintiff being the foundation of the suit itself defective, the suit cannot stand. The quit notice is dated 29.6.2002 and the plaintiff asked the defendant within 30 days and that 30th day comes to be 29.7.2002. The monthly tenant is seen to be every English calendar month. Hence, the quit notice is not in conformity with the letter and spirit of Section 106 of Transfer of Property Act and the foundation held for the suit eviction being tottering, the suit itself cannot stand and liable to be dismissed.
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Subsequently, the defendant filed additional written statement, where he stated that there is no document for the lease and that the lease must be presumed to be oral. He admitted that an advance of Rs.7,000/- belong to him is with the plaintiff. He denied that the lease in favour of the defendant was closed and determined on 31.5.2002. His possession of the suit schedule portion of the building is not unlawful and he is not liable to pay damages, and he is disputing that the plaintiffs have bonafide personal requirement of the plaint schedule portion of the building. The 2nd plaintiff does not require the building for ‘Bakery’ business, which he has not started any where in India. Dhanapal who is well settled in that business at Bapatla has not executed any document in favour of 2nd plaintiff and this story that
Dhanapal will start ‘Bakery’ business in Partnership with 2nd plaintiff at Gudur leaving his said business at Bapatla is unbelievable. The plaint schedule property is in the ground floor of a terraced building having business rooms in the 1st floor also. The contention of the defendant is causing intentional damage to the interior portion of the building since middle of 2002 is false.
The contention that rent was not paid by the defendant to the plaint schedule building of December, 2001 is false.
4.Basing on the above pleadings, the trial court has framed the following issues:
1) Whether the Power of Attorney is legal and valid?
2) Whether the suit based on the power of attorney is proper and maintainable?
3) Whether the quit notice is legal and valid?
4) Whether the plaintiff is entitled ejecting the defendant and recovery of possession of the plaint schedule property from the defendant as prayed for?
5) To what relief?
6.During the course of trial, on behalf of the plaintiffs, P.Ws.1 to 3 7 examined and Exs.A.1 to A.9 marked. On behalf of defendant, DWs.1 and 2 examined and Exs.B.1 to B.4 marked.
7. Having heard and perused the record, the trial court decreed the suit.
8.Being aggrieved by the decree and judgment, the defendant preferred this appeal assailing the findings of the trial court on various grounds.
9.No witnesses were examined and no documents were marked by either side before this court.
10. Heard both sides.
11. Now the points for consideration are:
1) Whether there are any grounds to interfere with the finding of the trial court?
2) To what relief?
12. POINT No.1:
The parties are being described as arrayed before the trial court for the sake of convenience.
13. The grounds of appeal in brief are as follows:
This appeal is preferred assailing the findings of the trial Court on various grounds, which are as follows:
(i) The findings on issue No.4 rendered by the trial Court do not find any factual foundation and is full of intrinsic improbabilities and the trial
Court mainly based its judgment and decree under attack in this appeal suit on those findings on issue No.4;
(ii) When it is the case of the plaintiffs that one of them, namely
Pasupuleti Chalapati Rao requires the plaint schedule premises for his own 8 occupation i.e., namely to start his bakery business therein, the trial court should have spoke about his need as alleged at-least some undertaking from the plaintiff should have been taken from the trial Court to avoid abuse of of the process of law.
(iii) The trial Court did not read from the evidence and pleadings in the suit that it is pleaded that he has been doing bakery business in a building belonging to 4th plaintiff’s mother at Bapatla since some years and that 2nd plaintiff in partnership with Dhanapal intends to carry on bakery business at
Gudur in the suit premises, though since 2002 no such steps are taken spectacularly and yet the lower court decreed the suit.
(iv) When a ground of bonafide requirement is pleaded for the landlady/landlord, like any other fact that fact also has to be proved. In this case non-examination of 2nd plaintiff as a witness as well as Dhanapal that he agreed to leave off his flourishing business at Bapatla and to start the same Bakery business in Gudur as partner with the 2nd plaintiff should have been examined in this suit.
(v) The trial Court drew several inferences such as Dhanapal who is not at all examined as a witness never said ‘this thing and that thing’ and held as if additionally Dhanapal may open another bakery business in Gudur also. Even for this, Dhanapal’s evidence must be there and it is not for the lower court to conjecture things do hors the evidence adduced and produced by the parties.
(vi) What prevented the plaintiffs to examine one of them, namely, 2nd plaintiff to probablise the contention that he intends to start his bakery business in the plaint schedule premises along with Dhanapal, is not appreciated by the trial Court for eviction of the defendant in support of their family members bonafide commercial need of the plaint schedule premises is concerned.
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(vii) The trial Court at length discussed the evidence of DW.1 and
PW.1 and held that the appellant paid rent deducting Rs.660/- is one month and branded him as willful defaulter, though, unlike in Rent Law Legislations, default or willful default in payment of monthly rents is not a ground for eviction in eviction suit under Transfer of Property Act.
(viii) In spite of non-framing of specific issue on grounds for eviction, the lower court rendered findings on such grounds.
Therefore, the appellant prays the Court to set aside the decree of eviction from the plaint schedule property reversing various findings of fact in the questioned judgment and decree and grant costs of the appeal.
14. Heard the learned counsel for the appellant. The learned counsel for the respondents submitted written arguments.
The learned counsel for the appellant submitted that the lease is for two years and at the time of the lease, the defendant paid an amount of
Rs.7,000/- as an advance and that advance amount was not returned and without returning that amount, how the plaintiffs can ask for eviction. No such effort made by the plaintiffs for return of Rs.7,000/-. As long as the money of the defendant is with the respondents, we cannot say that the appellant committed default in payment of rent. As per the contention of the respondents, the appellant did not pay rent for the month of December, 2001 and committed default. The defendant has spent Rs.250/-for fixing of meter box Rs.660/- as ACD charges as shown in Exs.B.3 and B.2 and therefore, he paid the remaining amount of Rs.4,600/-. So, it cannot be said that the appellant committed default in payment of rent. The trial Court in its judgment stated that no permission was obtained from the landlord to spend the amount towards meter and additional cash deposit and in fact, no such permission is required in view of Section 108 of Transfer of Property 10
Act. He referred Sec.108(f) of Transfer of Property Act, 1882. So, no written permission is required from the respondents/plaintiffs for effecting repairs and if no repairs were effected by the appellant, or himself, he cannot run the business. Therefore, the finding of the trial Court that the defendant committed default in payment of rent of Rs.900/-, is not tenable.
It is the contention of the appellant that the plaintiff wanted to run
Bakery shop in the plaint schedule property. Already, she has 6 shops and two godowns. Plaintiffs wanted the plaint schedule property for running
Bakery shop in the plaint schedule property along with one Dhanapal, who is already in the said business. The said T.V. Chalapathi Rao, who is the son of plaintiff, or Dhanapal are not examined to show that the plaint schedule building is required for the personal use of plaintiff’s son. So, there is no bonafide requirement of personal use and occupation of the plaint schedule property.
When coming to the damages of the building, he submitted that DW.2 gave evidence that no damages are caused to the building. In the said circumstances, she is not entitled for eviction of the defendant. He further submitted that the registration of the lease for one year required registration under Section 107 of Transfer of Property Act. So, there is no written lease and lease is for more than one year and it require registration under Sec.17 of Registration Act and further submitted that PW.1 received 25 months rent and subsequently she refused to receive the rents. So, the question of non- payment of arrears of rent does not arise as the plaintiff herself refused.
Under Section 108(g) of Transfer of Property Act, lessee got right to effect repairs, otherwise he cannot run business and no written permission is required and he never committed default. As per Section 114(g) of Transfer of Property Act, there is no breach of agreement as no agreement between the landlord and tenant and that no express breach of agreement.
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The learned counsel for the appellant submitted his written arguments that the land lady and the original plaintiff Smt. P. Jayaprada is examined as
PW.1 through advocate-commissioner and died subsequently on 02.05.2009.
Consequently, her legal heirs are brought on record as plaintiffs 2 and 3 who are her sons and one grandson P. Siddardha as plaintiff No.4. During appeal, the 3rd respondent Phalguna Rao died and his legal representatives are brought on record as respondents 5 to 7.
Originally the suit was filed before the Principal Junior Civil Judge,
Gudur by GPA holder on behalf of the plaintiff seeking for decree of ejectment of the defendant and for recovery of possession over the plaint schedule property i.e., a building in Door No.19/1 under Assessment
No.5302 i.e., house and site in which the appellant/defendant is running a lodge. In the schedule property along with other property, shops are owned by the plaintiff due to hereditary i.e., sole daughter of late Sri Dasari
Siddaiah Naidu, the original owner of the building and vacant site. The GPA
Holder died, ultimately the plaintiff herself continued the suit proceedings without any further G.P.A.
The suit for ejectment mainly on the ground that subsequent to 31.5.2002 fresh lease agreement was not given to the defendant and the lease of defendant got terminated by 31.5.2002 by efflux of time and therefore, the defendant ought to have vacated the plaint schedule property without any notice by 01.06.2002, unless a fresh lease is given. No fresh lease is given to the defendant and the defendant has not vacated the plaint schedule property and that his possession becomes unlawful and he is liable for payment of damages.
The trial Court decided the issues 1 and 2 in favour of the plaintiff and against the defendant as there is no irregularity in filing the suit by GPA 12 holder.
With regard to issue No.3, whether the quit notice is legal and valid?,
The lease for two years between the period 01.6.2000 to 31.5.2002 and as per the version of PW.1, the lease was got determined on 31.5.2002 by efflux of time and therefore the defendant ought to have vacated the plaint schedule property by 01.06.2002 without any quit notice. The quit notice is marked as Ex.A.1 issued under Section 106 of Transfer of Property Act. The trial Court decided issue No.3 in favour of the plaintiff. The defendant, except raising some bald grounds in the appeal in this regard failed to say anything about how the trial Court erred in allowing issue No.3. He submitted that with regarding to issue No.4, the plaintiffs are entitled for ejecting the defendant and recovery of possession of plaint schedule property from the defendant as prayed for and also with regard to issue No.5 i.e., what relief is concerned, the trial court gone through the evidence of the plaintiffs and the defendant thoroughly and carefully and ultimately found that the defendant has committed willful default in paying the rents and further PW.1 categorically stated the nature of the business with which his son wants to do in the plaint schedule house and the defendant did not pay rent for the December, 2001 and committed default. The defendant sent demand draft for Rs.4,600/.- for two months lease with a deficit of Rs.900/-.
Further, it is the admission of the defendant that the water tax and electricity consumption charges are agreed to be paid by the defendant and in view of the said admission, how the defendant could deduct Rs.600/- from out of rental amount towards payment of additional consumption charges was not explained by the defendant. There is no proof to show that for what purpose the defendant spent the remaining balance amount out of Rs.900/-, for which no permission is obtained. DW.1 categorically admitted that he sent Demand draft for Rs.4,600/- for two months lease with deficit of 13
Rs.900/-. The trial Court did not commit any error as pointed out by the appellant.
The 2nd plaintiff P.V. Chalapathi Rao required the plaint schedule property for his own occupation to start his bakery business and nothing has elicited during cross-examination of PW.2 though the defendant had an opportunity of raising about such pleading of the plaintiffs that the shop is required for personal occupation and the PW.2 stood strongly in the entire cross-examination conducted by the counsel for the defendant and nothing is elicited in favour of the defendant/appellant. Therefore, the appellant is estopped from raising such aspect as one of the grounds. So, examination of PW.2 in this regard as contended by the appellant in his appeal grounds first time is estopped from raising such aspect. Further, there is no necessity to examine one Dhanapal as a witness, who is running Bakery business at Bapatla. PW.1 categorically deposed that her son intended to do
Bakery business, who run Bakery business in the name of Bangalore Iyangar
Bakery, for which, the defendant has not given any suggestion that there was no intention to said Chalapathi Rao to run the bakery business with the said Dhanapal and that in order to evict the defendant only she took such plea etc. In the absence of such categorical suggestion on part of the counsel for the defendant to PW.1 and also to PW.2, no credence shall be given to that aspect, which is being raised as main ground No.4 in the appeal.
As per settled proposition of law even there is no necessity of pleading that the shop is required for personal occupation and for which purpose the tenant has to be evicted, the only requirement is whether the rental period is over or not and whether any quit notice is issued demanding the defendant to vacate the premises. It is submitted that the two requirements were fulfilled by the plaintiff in the suit and it is not the case of the 14 defendant at any point of time that his lease period has been extended from 01.6.2002 onwards, therefore the possession of the suit schedule property by the defendant become unlawful.
With regarding to ground No (h) of the Memorandum of appeal grounds, the respondent/plaintiff submitted that the suit has been filed for causing ejectment of the appellant and for recovery of possession of plaint schedule property and it is not mere eviction of the defendant as defined under the Rent Control Act. The admitted fact is that the period of lease for two years have been already over by 31.5.2002 by efflux of time, which is the main criteria in deciding the fate of the suit filed by the plaintiff seeking ejectment of the defendant after completion of the said lease period. It does not mean that the respondents conceded their plea that it is a case of willful default on part of the defendant in making payment of the rent for a particular period. DW.1 utterly failed to maintain and prove his contention with regard to his default of payment of rent and that with the prior permission of the husband of the landlady, he has caused some repairs etc., and except his oral evidence, no authentic corroborative evidence was produced. So, the trial Court did not commit any error of law in giving finding that the defendant is willful defaulter.
With regard to ground No.1 of the appeal i.e., in spite of non-framing specific issues on the ground for eviction, the lower Court rendered findings on such ground is concerned, it is submitted that the appellant/defendant fundamentally should know that the suit is not filed under Rent Control Act and it is a case of original suit filed under Section 26 of CPC after fulfilling the formality provided under Section 106 of Transfer of Property Act i.e., quit notice that too after completion of the lease period and ultimately the trial
Court has framed the issues Nos.1 to 5 in a juristic and proper manner particularly the issue No.4 is sufficient to cause ejectment of the defendant 15 from the suit schedule property.
The trial Court after gone through the record both oral and documentary evidence, gave categorical findings. Therefore, the interference of the appellate Court does not warranted and hence prayed the Court to dismiss A.S. No.19/2016 with exemplary costs.
15.In view of the contentions of the learned counsel for the appellant and the respondents, I would like to go through the appeal grounds and evidence on record. In the grounds of appeal, mainly it is argued on issue No.4. The main contention of the learned counsel for the appellant is that as per evidence of PW.1, who is Smt. Pasupuleti Jayaprada, at Para No.7 pleaded that the plaint schedule property is required for personal requirement of her family members, her son P.V. Chalapathi Rao requires schedule property for opening ‘Bakery’ in Partnership with one Dhanapal, who is already in the said business. The learned counsel for the appellant submitted that the said
P.V. Chalapathi Rao who wanted the plaint schedule property to run Bakery, is not examined and Dhanapal, who is already in Bakery business is also not examined.
Whereas, it is the contention of the learned counsel for the respondents that it is not required to examine the son of PW.1 and one
Dhanapal to establish that the schedule property is for bonafide requirement for personal use. Further, he submitted that during cross-examination of
PW.1, no suggestion put to PW.1 that there was no intention to said
Chalapathi Rao to run bakery business with the said Dhanapal and that in order to evict the defendant only she took such plea and in the absence of such categorical suggestion to PW.1, and also to PW.2, no such credence shall be given that aspect which is being raised as main ground in the appeal.
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16.Plaintiff filed this suit and she deposed categorically that her son requires the plaint schedule property for opening Bakery shop in Partnership with one Dhanapal, who is already in Bakery business and doing business at
Bapatla. So, they planned to remove the schedule mentioned house by converting the front portion into shops and undertaking consequent alterations in the back portion of the schedule house and after such alterations and conversions the front portion can be used as shop-cum- showroom for ‘Bakery’, while the rest of the schedule house will be used for cooking and preparation of the bakery items. In the cross-examination she stated that in Bapatla, one Dhanapal is running Bangalore Iyangar Bakery, and her second son Chalapathi Rao wanted to do business with the said
Dhanapal.
The plaintiff pleaded and proved by her evidence that the schedule premises is required for personal occupation of her son to run business and nothing has elicited from the cross-examination of PWs.1 and 2 that the plaintiff’s son has no intention to run bakery shop and her evidence is not
honest and tainted with only oblique motive and it is mere desire and wish.
Therefore it can be said that there is no force in the contention of the learned counsel for the respondent that the son of PW.1 i.e., Chalapathi Rao and one Dhanapal should be examined as witnesses to prove that the plaint schedule property is required for his personal use for running bakery.
17.It is pleaded in the memorandum of appeal grounds that the lower court discussed at length the evidence of DW.1 and PW.1 and held that the appellant paid rent deducting Rs.660/- is one month and branded him as willful defaulter.
18.The learned counsel for the appellant submitted that as per Ex.B.3, the 17 defendant paid Rs.250/- towards meter box and Rs.660/- towards ACD charges, the amount of Rs.900/- deducted from the rent. He further submitted that no written notice is necessary, in view of Section 108(g) of
Transfer of Property. Without fixing meter box and pay additional consumption charges the defendant cannot run business.
19.In Ex.A.3, notice, dt.10.7.2002, it is mentioned at Para 8 that he sent demand draft for Rs.4,600/- instead of Rs.5,500/- being two months rent and spent a sum of Rs.250/- towards fixing of new meter box and Rs.660/- towards current deposit.
Section 108(f) reads as follows:
“If the lessor neglects to make, within a reasonable time after
notice, any repairs which he is bound to make to the property, the
lessee may make the same himself, and deduct the expense of such
repairs with interest from the rent, or otherwise recover it from the
lessor.”
20.So, here, there is no evidence by DW.1 that he informed to the landlord for fixing of meter box and payment of amount towards ACD charges deposit and the landlord neglected to make any payment, which he is bound to pay. The learned counsel for the appellant submitted that the defendant orally asked the plaintiff. No notice is given to the landlord and no permission obtained from her. In the said circumstances, the trial Court rightly held that the defendant committed willful default in payment of rent.
21.The learned counsel for the appellant submitted that the defendant paid advance amount of Rs.7,000/- and it was not returned. Therefore, the question of default doesn’t arise. The learned counsel for the respondents submitted that this Rs.7,000/- paid as advance at the time of lease shall be returned at the time of vacating the premises and that it cannot be said that the appellant did not commit default in payment of rent. In support of his 18 contention, he submitted a decision in V. Hariharan Vs. Dr. P.G. Gopinath of the Hon’ble Madras High Court, dt.12.6.2015, where it is held:
“12. It is held in 2005(5) CTC 473 R. Murugan V. M.O.M. Abubucker
that mere fact that the landlord had with him an advance amount
does not mean that the tenant has not committed willful default.
The learned single judge of our High Court as she then was in para
16 of the order referred to another Supreme Court judgment
reported in 2002 (4) SCC 675 Raminder Singh Sethi V. D.
Vijayarangam, wherein the Supreme Court is of the view:
Every tenant is obliged to pay or tender rent to the landlord
within 15 days of the month to which the rent relates. The purpose
of advance rent is to protect the landlord from the unscrupulous
tenant who may run into arrears and vacate the premises and
comfortably walk away with the arrears. The advance rent is
available for adjustment or is liable to be refunded at the time of
vacating of the premises except where the law or the contract
between the parties provides to the contrary. We have already
noticed that the provisions of the Act do not apply to the premises
and, therefore, the landlord was not prevented by law from securing
advance payment of rent by consent of the parties. It is not the
case of the tenant that the contract between the parties provides
for adjustment of rent no sooner it fell into arrears from out of the
amount of advance rent. In short, the appellant tenant was not
absolved of his obligation to pay the rent due month by month in
spite of an amount of advance rent being available with the
landlord. Applying the same view, the learned single judge has
negatived the stand taken by the tenant that in view of the excess
amount with the landlord, there is no willful default.”
“14. In the present case, the tenant was at no point of time ready
to vacate the premises and he intending to do so had not
approached the landlord either orally or in writing to adjust the
advance amount in the hands of the landlord and the plea of
adjustment is raised for the first time only before the learned Rent
Controller and it is only an after thought to escape the legal
consequences of default.”
Therefore, the contention of the counsel for the appellant cannot be sustainable.
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22.The learned counsel for the respondents submitted that the quit notice issued under Section 106 of Transfer of Property Act to the defendant under
Ex.A.1 stating that the defendant should vacate the schedule building premises within 30 days from the notice, though 15 days is contemplated.
The defendant got issued reply notice denying all the contents in Ex.A.1 stating that he is not liable to vacate the premises and this itself is sufficient to say the clear intention of the owner to terminate the existing tenancy at certain time is specifically and clearly conveyed to the tenant. Further giving 30 days time, which is more than the statutory period, do not make quit notice invalid. The trial Court has decided the issue No.3 in favour of the plaintiffs.
23.The learned counsel for appellant further submitted that suit is not filed under Rent Control Act and it is a case of original suit filed under
Section 26 of C.P.C after fulfilling the formality provided under Section 106 of
Transfer of Property Act i.e., quit notice that too after completion of lease period i.e., 31.5.2002.
24.The relationship between the parties as landlord and tenant is not in dispute. As per respondents, the lease is extended from time to time for every two years and finally, it was extended from 01.6.2000 to 31.5.2002 and defendant paid rent Rs.2,750/- per month. Appellant/defendant also admitted that he received Ex.A.1-notice from the plaintiffs. It is the contention of the appellant/defendant that after 01.6.2002 he had sent 3 demand drafts, but they are not being accepted as lease in his favour is not extended. Ex.A.1 is quit notice, dated 29.6.2002 calling upon the defendant to vacate the premises within one month i.e., 30 days of the notice. So, the learned counsel for the respondents submitted that by efflux of time, the 20 lease got terminated by 31.5.2002 and therefore the appellant/defendant ought to have vacated the plaint schedule property without any quit notice.
The learned counsel for the appellant submitted that the appellant paid rent even after the lease period, but the respondents refused to receive the same.
At this stage, the learned counsel for the respondents cited a decision reported in 1996 (3) ALT 32 (SC) between M. Vijayalaxmi, Vs. G.
Goverdhan Reddy, where, Their Lordships held at Para No.4:
“The learned counsel for the respondent has urged that the suit
filed by the appellant was based on the alleged termination of the
tenancy by notice dated January, 28, 1985 and since the said notice
was invalid the suit must fail. We are unable to agree. The suit was
for recovery of possession of the premises after terminating the
tenancy by notice dated January 28, 1985 would not mean that the
appellant was not entitled to seek the possession of the property
after tenancy had come to an end by efflux of time under Section
111(a) of the Transfer of Property Act. Therefore, even if it is held
that the notice dated January 28, 1985 was not a valid notice under
Section 106 of the Transfer of Property Act, it could be regarded as
a notice indicating that the tenancy would not be continued after
the term of the tenancy comes to an end. In these circumstances, it
cannot be said that the suit filed by the appellant was not
maintainable and decree for eviction could not be passed in favour
of the appellant.”
25.The counsel for the respondents submitted that the lease period between the landlord and tenant come to end by 01.06.2002, whereas it is the contention of the learned counsel for the appellant that in view of
Sec.111 (g) of Transfer of Property Act if tenant brakes an express condition which provides that on breach thereof, the lessor may re-enter. There is no written agreement, so question of breach of condition does not arise. He further submitted that the defendant is tenant holding over under Sec.116 of the Transfer of Property Act.
21
He submitted decision reported in (1984) 1 Supreme Court cases 369 in the case of Satish Chand Makhan and Others, vs Govardhan
Das Byas and Others, Their Lordships held at Para 7:
“We have no doubt in our mind that the defendants were
tenants holding over under Section 116 of the Transfer of Property
Act and therefore it was necessary for the plaintiffs to serve a
notice under Section 106 of the Act. Where a person holds over
under an unregistered lease and continues in possession by paying
the monthly rent, the holding over must be held as a tenancy from
month to month: Mulla’s Transfer of Property Act, 5 th Edn., p. 762. It
was definitely wrong on the part of the High Court to have
proceeded on the assumption that the lease was for a specific term
of nine years and therefore the lease stood determined by efflux of
time under Section 111(a) of the Transfer of Property Act, and that
the defendants were tenants at sufferance and no quit notice was
required. It is no doubt true that where the lease is for a definite
term, it stands determined by efflux of time under Section 111(a) of
the Transfer of Property Act, and the erstwhile tenant becomes a
tenant at sufferance, but that is not the case here. The legal
position is not contested and it was fairly conceded that the
defendants were holding over under Section 116 of the Transfer of
Property Act as tenants from month to month, and further that no
notice as required by Section 106 was served on them.”
26.Here, in the case on hand there is no written lease or unregistered lease. The lease of schedule premises shall be deemed to be from month to month and that the tenancy is expired by 31.5.2002 by efflux of time and notice also served under Section 106 of Transfer of Property Act and notice under Sec.106 of Transfer of Property Act is not challenged by the appellant in the appeal grounds.
The learned counsel for the respondents submitted a decision reported in 2001(2) ALT 388 (D.B.) in the case of Bank of India rep. by its Zonal
Manager, Hyderabad, vs. V. Swaroop Reddy, wherein His Lordship held at
Paras 25, 28, 29, 30:
“25. We will now examine in detail the conduct of the parties as 22
could be seen in the documents extracted above with reference to
the statutory provisions incorporated in the Transfer of Property
Act, 1882 as also Indian Contract Act, 1872. Section 106 of the
Transfer of Property Act, 1882 reads: ‘106. Duration of certain leases in absence of written contract or local usage: - In the absence of a contract or local law or usage to the contrary a lease of immovable property for agricultural or manufacturing purposes shall be deemed to be a lease from year to year terminable, on the part of either lessor or lessee, by six months’ notice expiring with the end of a year of the tenancy and a lease of immovable property for any other purpose shall be deemed to be a lease from month to month, terminable, on the part of either lessor or lessee, by fifteen days’ notice expiring with the end of a month of the tenancy. Every notice under this Section must be in writing signed by or on behalf of the person giving it, and either be sent by post to the party who is intended to be bound by it or be tendered or delivered personally to such party, or to one of his family or servants, at his residence, or (if such tender or delivery is not
practicable) affixed to a conspicuous part of the property.
Section 70 of the Indian Contract Act, 1872 reads: “70. Obligation of person enjoying benefit of non-gratuitous act – Where a person lawfully does anything for another person, or delivers anything to him, not intending to do so gratuitously, and such other person enjoys the benefit thereof, the latter is bound to make compensation to the former in
respect of, or to restore, the thing so done or delivered.”
“28. The aspect of tenant holding over was also subject matter of
another decision before the Patna High Court in a decision reported
in Ramsunder vs. Bataso Kuer wherein it is explained thus:
‘.....It is argued that if the provisions of Section 116, T.P. Act,
are to be held to apply to the occupation of this land by the
defendant, it must be proved that the defendant holding over, in
this fashion, has agreed to pay the rent which he paid, and that the
landlord has expressly consented to this holding over. If a tenant
holds over after the expiry of his lease he ordinarily becomes a
trespasser, unless the landlord in some manner signifies his
intention of recognizing the continuance of the tenancy, which in
the present instance is sufficiently indicated by the fact that the
23
suit for rent has been instituted. If the plaintiff had sued the
defendant for damages on account of his wrong occupation of his
land, it would have been necessary, if the defendant wished to deny
that he was a trespasser, that he should indicate that the landlord
had in some way or other signified his intention of the continuance
of the tenancy, but that question does not arise when by the very
form of his plaint that landlord recognizes the tenancy;.
29. Similar view was taken by the Apex Court in M. Vijayalakshmi vs.
G. Goverdhan Reddy, holding that once the tenancy for the fixed
period expired which came to an end by efflux of time, no notice for
terminating the tenancy under Section; 106 of the TP Act was
required for the purpose of filing the suit after expiry of the lease.
Even if the notice was not a valid notice, it could be regarded as a
notice indicating that the tenancy would not be continued after the
term of the tenancy comes to an end.
30. Thus we may, on the strength of the authoritative
pronouncements discussed above, say that the status of the
defendant-Bank subsequent to the period of lease is that of a
trespasser who can further be described as a ‘tenant holding over’.
27.Here in the case on hand, no evidence that the defendant paid rents subsequently every month. Further the plaintiff refused to receive the rent sent by the defendant. Therefore, the intention of the plaintiff shows that she would not recognize the continuance of the tenancy.
In the said circumstances, it can be held that the Decree and Judgment passed by the trial Court does not require any interference by this Court and the same is deserved to be confirmed. The point is answered accordingly.
28.POINT No.2:
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In the result, the appeal is dismissed confirming the judgment and decree, dated 06.09.2010 in O.S. No.373/2002. In the circumstances of the case, there is no order as to costs.
Dictated to the Stenographer, transcribed by him, corrected and pronounced
by me in the Open Court, this the 06 th day of April, 2022.
Sd/ S. Ramanaiah VII Addl. District Judge, Gudur.
Appendix of Evidence
-NIL-
Sd/ S. Ramanaiah VII Addl. District Judge, Gudur.
Copy to the Principal Junior Civil Judge, Gudur.
// True Copy //