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2011 DIGILAW 243 (MAD)

S. Begum v. R. Praveen Kumar

2011-01-19

G.RAJASURIA

body2011
JUDGMENT :- 1. This second appeal is focussed animadverting upon the judgement and decree dated 02.06.2010 passed in A.S.No.204 of 2009 by the learned V Addl. Judge, City Civil Court, Chennai, in reversing the judgment and decree of the learned VIII Asst. Judge, City Civil Court, Chennai. in O.S.No.4005 of 2007. The parties are referred to hereunder according to their litigative status and ranking before the trial Court. 2. The epitome and the long and short of the relevant facts absolutely necessary and germane for the disposal of this Second Appeal would run thus: (a) The plaintiffs filed the suit seeking the following prayer: “To direct the defendant to quit and deliver vacant possession of the schedule property to the plaintiffs; To direct the defendant to pay a sum of Rs.20,000/- (Rupees twenty thousand only) as future damages per month, from the date of plaint till the date of handing over vacant possession of the schedule property to the plaintiff; For permanent injunction restraining the defendant (or) her men from in any way of altering, alienating, encumbering (or) dealing with the schedule property." (extracted as such)” (b) The defendant filed the written statement resisting the suit. (c) Whereupon issues were framed. On the side of the plaintiffs one Mr.M.Ramamoorthy was examined as P.W.1 and Exs.A1 to A10 were marked. The defendant examined herself as D.W.1 and Exs.B1 and B2 were marked. (d) Ultimately the trial Court dismissed the suit. Being aggrieved by and dissatisfied with the same, appeal was filed. Whereupon, the appellate Court reversed the finding of the trial Court and decreed the suit as prayed for. 3. Challenging and impugning the judgment of the first appellate Court, the tenant/defendant filed the Second Appeal on various grounds inter alia to the effect that the first appellate Court failed to take into consideration the factum of rent having been paid even after the alleged termination of tenancy by the landlord. In the earlier suit for injunction filed by the tenant as against the plaintiffs, judgment was passed in favour of the tenant and that would operate as res judicata as against the landlord to file a suit for eviction. 4. The following proposed substantial questions of law are found suggested in the memorandum of Second Appeal: "(1) Whether the notice of termination is held to be valid once the respondents/landlord accepted the rents and thereafter without any reservation? 4. The following proposed substantial questions of law are found suggested in the memorandum of Second Appeal: "(1) Whether the notice of termination is held to be valid once the respondents/landlord accepted the rents and thereafter without any reservation? (2) Whether the injunction decree can operate as res judicata to the present appeal?" 5. Heard both sides. 6. On hearing both sides and on perusal of the typed set of papers I am of the considered view that the following substantial questions of law should be framed: "(1) Whether there is any evidence to prove and establish that after the termination of lease by issuing termination notice by the landlord, the tenant paid rent in stricto sensu, which was allegedly received by the landlord and if so, whether the first appellate Court failed to take note of the same? (2) Whether the first appellate Court was right in quantifying the damages for use and occupation in a sum of Rs.20,000/- per month when the actual agreed rent itself was Rs.8,000/- per month?" Point No.1: 7. The learned counsel for the appellant/defendant/tenant would advance his arguments which could tersely and briefly be set out thus: (a) The tenant was continuously and interminably paying the rent by issuing cheques and this relevant fact was not taken note of by the first appellate Court. (b) It is a trite proposition of law that receipt of rent by the landlord after the alleged termination of tenancy would constitute fresh tenancy itself between the landlord and the tenant, and in such a case the question of filing a suit for eviction would not arise. (c) The first appellate Court holus bolus at its own whims and fancies simply fixed the damages for use and occupation per month in a sum of Rs.20,000/-, when in fact the agreed rent during the year 2005 was only Rs.8,000/-. Within a period of three years there could not have been 2-1/2 times increase in the rental value of the building. Accordingly, the learned counsel for the appellant prays for setting aside the judgment of the first appellate court and for restoring the judgment of the trial Court in dismissing the suit. 8. Within a period of three years there could not have been 2-1/2 times increase in the rental value of the building. Accordingly, the learned counsel for the appellant prays for setting aside the judgment of the first appellate court and for restoring the judgment of the trial Court in dismissing the suit. 8. By way of torpedoing and pulverising the arguments as put forth and set forth on the side of the appellant/defendant, the learned counsel for the respondents/plaintiffs would expatiate and develop his argument, which could tersely and briefly be set out thus: (a) Absolutely there is no iota or shred, shard or molecular extent of evidence to display and demonstrate that even after the termination of tenancy by the plaintiffs, the defendant paid rent and that it was received by the plaintiff. In the absence of such evidence, the appellant for the first time cannot try to press into service the plea that he continued to pay rent and that it was allegedly received by the landlord. (b) The first appellate Court placing reliance on the evidence of P.W.1/the landlord appropriately and appositely, correctly and convincingly quantified the damages for use and occupation per month in a sum of Rs.20,000/- warranting no interference in the Second Appeal. Accordingly, the learned counsel for the respondents prays for the dismissal of the Second Appeal. 9. The first appellate Court took into account the fact that the tenancy was validly terminated by virtue of Ex.A9/Termination Notice ending with the tenancy month of April 2007, wherefore it is pellucidly and palpably clear that 15 days notice was given. Over and above that the suit itself was filed on 24.06.2007 for eviction long after 15 days from the date of termination of tenancy and in such a case, the question of finding fault with the termination notice would not arise. 10. The pertinent point to be considered is as to whether after 30.04.2007 the tenant paid rent as claimed by him to the landlord and whether the landlord received without any demur any amount as rent. The animus is the most important factor. 10. The pertinent point to be considered is as to whether after 30.04.2007 the tenant paid rent as claimed by him to the landlord and whether the landlord received without any demur any amount as rent. The animus is the most important factor. The learned counsel for the plaintiff would correctly point out that unless and until there is clear and clinching evidence to demonstrate and exemplify that the landlord received rent even after terminating the tenancy, the question of fastening the plaintiff with any liability to accept the alleged fresh tenancy would not arise. He would also hasten to add that the cheques issued by the defendant were received by the plaintiffs, not towards rent, but in commensurate and in concinnity and in parimateria with the claim made by him for damages for use and occupation. 11. I could see considerable force in his submission. Absolutely there is no pint or jot of evidence on the side of the defendant to highlight and spotlight the fact that those cheques issued by the tenant even after termination notice, were received by the plaintiff only towards rent. In such a case, automatically no presumption would arise that those cheques issued by the defendant after termination notice, were received by the plaintiff only towards rent. In such a case, I am of the considered view that the first substantial question of law should be decided as against the appellant/defendant and in favour of the plaintiffs. POINT NO.2: 12. A mere poring over and perusal of the judgment of the first appellate Court would speak volumes to the effect that the first appellate Court was not at all justified in indulging in surmises and conjectures and that too based on the scanty and patchy evidence of P.W.1, who is an interested witness. Indubitably and indisputably, the building is a new one. However, the tenancy itself commenced during the year 2005. The suit was filed in the year 2007 almost two years thereafter and in such a case there could be no justification on the part of the landlord to claim damages for use and occupation in a sum of Rs.20,000/- per month, so to say 2-1/2 times more than the rental value of the building. The suit was filed in the year 2007 almost two years thereafter and in such a case there could be no justification on the part of the landlord to claim damages for use and occupation in a sum of Rs.20,000/- per month, so to say 2-1/2 times more than the rental value of the building. When with wide open eyes, the rent was agreed as Rs.8,000/- in the year 2005, I am at a loss to understand as to how during the year 2007 the rental value would have got increased by 2-1/2 times. This basic common sense principle was not taken into account by the appellate Court warranting interference in the Second Appeal. 13. The learned counsel for the plaintiffs would in all fairness submit that perhaps the fixation of damages for use and occupation by the first appellate Court might be on the higher side, however taking into account the prevailing high rate of rent in that area, viz., Saligramam, the quantification can be allowed to remain as such. 14. Whereas, the learned counsel for the defendant would submit that unless there is evidence to establish and demonstrate that Rs.20,000/- per month would be the rental value for the building, it cannot be fixed in a sum of Rs.20,000/- towards damages for use and occupation. 15. I would like to point out incidentally that mutatis mutandis the provisions relating to fixation of rent under the Tamil Nadu Buildings (Lease and Rent Control) Act should have been resorted to for the purpose of quantifying the rental value of the building and consequently for assessing the damages for use and occupation, but that exercise was not undertaken by the first appellate Court. If the matter is now remanded to the first appellate Court, it will cause more damage to either parties and the remedy would worse than the disease. As such, by applying the rough and ready method, I am of the view that the earlier rental value of Rs.8,000/- could be increased by half its extent and this Court could ultimately quantify it in a sum of Rs.12,000/- per month. I am fully aware of the fact that even rough and ready method should not be resorted to by the trial Court and the first appellate Court. I am fully aware of the fact that even rough and ready method should not be resorted to by the trial Court and the first appellate Court. However, since the matter is at the stage of Second Appeal and the matter has to be disposed of, for enabling the parties to have finality in the litigative process, I have resorted to this rough and ready method in quantifying the damages for use and occupation with regard to the building concerned. Accordingly, the second substantial question of law is decided to the effect that the damages for use and occupation per month should be reduced to Rs.12,000/- per month from the date of suit till the date of payment. 16. The learned counsel for the appellant would also submit that already certain amounts have been paid by way of cheques and if so necessarily, the plaintiff should give due deduction to it and it is all a matter of calculation. Accordingly this Second Appeal is disposed of. No costs. Consequently, connected miscellaneous petition is closed. 17. I am of the view that six months' time from today could be granted for the appellant/defendant/tenant to hand over the possession to the respondents/plaintiffs, subject to payment of future damages for use and occupation every month at the aforesaid rate without committing default during that period of six months from today and an affidavit to that effect shall be filed within a period of fifteen days from the date of receipt of a copy of this order.