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2011 DIGILAW 976 (AP)

Pankaj Salva v. V. Vijay Lakshmi

2011-11-10

L.NARASIMHA REDDY

body2011
Judgment : These three appeals are between the same parties. Hence, they are disposed of through a common judgment. For the sake of convenience, the parties are referred to as arrayed in SA No.1109 of 2011. 2. One Sri T. Shanker Singh, father of the 1st respondent, was the owner of premises bearing No.7-1-920 and 921 comprising of ground and first floors with built up area of about 1800 square feet at Secunderabad. The said premises were given on lease to the appellants in the year 1985. After the death of Shanker Singh, the property devolved upon his wife Sundari Bai and son, the 1st respondent herein. The 1st respondent and his mother executed a lease deed (Ex.A-1) on 05-01-1996 in favour of the appellant. The deed provided inter alia for the initial lease period of five years, renewable by another ten years with variable rents at the interval of five years. Sundari Bai is said to have died in June 2000 after executing a Will, dated 05-11-1999, bequeathing her share of property in favour of her daughter – in – law, the 2nd respondent herein. 3. The appellants addressed a letter to the respondents 1 and 2 stating that they are willing to extend the lease for a term of 10 years beyond 06-01-2001 and have send demand drafts representing the enhanced rents. It is stated that the respondents 1 and 2 have informed the appellants that the property was sold in favour of respondents 3 and 4 through registered sale deeds and that it is not possible to accede to the request of the appellants. The appellants made effort to pay rents to the respondents 3 and 4. However, they did not receive the rents nor was there any positive response for renewal of the lease. Hence, the appellants filed O.S. No.235 of 2001 in the Court of the First Junior Civil Judge, City Civil Court, Secunderabad, for the relief of specific performance of clause in the lease deed, for renewal of the lease by 10 years. 4. The respondents 1 and 2 on the one hand and the respondents 3 and 4 on the other have filed separate written statements. The former stated that they sold away the property duly attorning the tenancy in favour of the respondents 3 and 4 and that they have no subsisting right over the premises. 4. The respondents 1 and 2 on the one hand and the respondents 3 and 4 on the other have filed separate written statements. The former stated that they sold away the property duly attorning the tenancy in favour of the respondents 3 and 4 and that they have no subsisting right over the premises. The latter took the plea that there is no privity of contract between them and appellants, that they became owners of the property with effect from 17-05-2001 and that the appellants have no right to seek extension of lease, against them. 5. During the pendency of O.S. No.235 of 2001, the respondents 3 and 4 got issued a notice under Section 106 of the Transfer of Property Act (for short ‘the Act’) to the appellants. Thereafter, the 3rd respondent i.e. Suresh filed O.S.No.1396 of 2001 and his wife 4th respondent filed O.S. No.1397 of 2001 against the appellants in the same Court for eviction. The appellants opposed the said suit stating that the notice issued under Section 106 of the Act is untenable since it was issued during the subsistence of the lease. Other grounds were also raised. 6. The trial Court clubbed all the three suits. Through a common judgment, dated 17-12-2004, it decreed O.S.No.235 of 2001 and dismissed O.S.Nos.1396 and 1397 of 2001. All the respondents herein filed A.S. Nos.131 of 2005 in the Court of the I Additional Chief Judge, City Civil Court, Secunderabad, against the judgment in O.S. No.235 of 2001. The 3rd respondent filed A.S. No.132 of 2005 and the 4th respondent filed A.S.No.133 of 2005 against the decrees in O.S.Nos.1396 and 1397 of 2001 respectively. Through a common judgment, dated 29-06-2011, the lower appellate Court reversed the decree passed in O.S. No.235 of 2001 on the ground that the period of 10 years for which the appellants prayed for extension of the lease, has expired by January 2011, and that the cause of action ceased to exist. As a consequence, the lower appellate Court allowed A.S. Nos.132 & 133 of 2005 and decreed the other two suits. Hence, these three second appeals. 7. Heard Sri S. Balchand, learned counsel for the appellants and Sri B. Nalin Kumar, learned counsel for the respondents 3 and 4. None appears for the respondents 1 and 2. 8. As a consequence, the lower appellate Court allowed A.S. Nos.132 & 133 of 2005 and decreed the other two suits. Hence, these three second appeals. 7. Heard Sri S. Balchand, learned counsel for the appellants and Sri B. Nalin Kumar, learned counsel for the respondents 3 and 4. None appears for the respondents 1 and 2. 8. The trial Court framed only one issue in O.S. No.235 of 2001, viz., whether the plaintiffs are entitled for the relief of specific performance against the defendants 1 to 4 as prayed for. In other two suits, the following issues were framed: “O.S.No.1396 of 2011: 1. Whether there is any lease deed executed by the vendors of plaintiff in favour of the defendants? 2. Whether the plaintiff is entitled for vacant possession of suit schedule premises? 3. Whether the plaintiff is entitled for the future damages, if so, at what relief? O.S.No.1397 of 2011: 1. Whether there is any lease deed executed by the vendors of plaintiff in favour of the defendants? 2. Whether the plaintiff is entitled for vacant possession of suit schedule premises? 3. Whether the plaintiff is entitled for the future damages issue at what rate?” 9. The trial Court clubbed all the three suits and evidence was recorded in O.S No.235 of 2001. The 1st appellant was the only witness, who deposed on their behalf. He filed Exs.A-1 to A-16. The respondents 1 and 3 deposed as DWs.1 and 2, respectively, on their behalf and Exs.B-1 to B-19 were filed. 10. There was no dispute as to the existence of relationship of landlord and tenant between the appellants and respondents 1 and 2. Execution of leased deed Ex.A-1 also was not denied. During the pendency of the suit O.S. No.235 of 2001, the respondents 1 and 2 executed sale deeds, dated 14-05-2001, marked as Exs.B-1 and B-2, in favour of the respondents 3 and 4, respectively. Rest of the documentary evidence is almost in the form of exchange of letters or notices. 11. There did exist a clause in Ex.A-1 providing for renewal of lease by 10 years. The trial Court found that there was no justification on the part of the respondents in not acceding to the request of the appellants for renewal of the lease. 11. There did exist a clause in Ex.A-1 providing for renewal of lease by 10 years. The trial Court found that there was no justification on the part of the respondents in not acceding to the request of the appellants for renewal of the lease. The necessity for the lower Appellate Court to deal with the finding recorded by the trial Court on merits, was obviated on account of the fact that 10 years period had expired in January 2011, during the pendency of the appeals and that the appellants continued to be lessees for that period. For all practical purposes, the appellants got the relief of extension of the lease. 12. Learned counsel for the appellants submits that though his clients enjoyed the benefit of lease for a period of 10 years, the expiry of that time would not by itself make them liable to be evicted. He contends that O.S.Nos.1396 ad 1397 of 2001 were filed on the basis of quit notice, dated 30-05-2001, and if it is assumed that the lease stood extended by 10 years in accordance with the relevant clause, the quit notices were untenable since they were issued during the subsistence of the lease. 13. This contention would certainly merit consideration. In case, the lease in favour of the appellants is deemed to have extended till January 2011, that assumption would, at the most, render O.S.No.235 of 2011 as nugatory, but would not enable the Court to decree the suits for eviction. The reason is that the quit notices were issued about 10 years ago. In other words, the respondents 3 and 4 shall have to begin the process once again, subsequent to January 2011. However, this legal fiction or assumption is rendered impermissible by the Supreme Court through its judgment in Shanti Devi v. Amal Kumar Banerjee 1981 (2) SCC 199 . It was held that there is no necessity to issue notice under Section 106 of the Act in case the lease was for a definite period, and if the said period expired by efflux of time. In the instant case, the lease is deemed to have expired on 05-01-2011, and there is no necessity to issue any fresh notice. 14. Hence, all the three Second Appeals are dismissed. There shall be no order as to costs. 15. In the instant case, the lease is deemed to have expired on 05-01-2011, and there is no necessity to issue any fresh notice. 14. Hence, all the three Second Appeals are dismissed. There shall be no order as to costs. 15. Learned counsel for the appellants submits that the appellants may be granted reasonable time to vacate the premises. Though the request is opposed by the learned counsel for the respondents, time is granted till the end of June, 2012 to the appellants to vacate the premises, subject to payment of rent on regular basis.