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2013 DIGILAW 249 (AP)

Satish Khanna v. Kanduru Anuradha Reddy

2013-04-02

K.G.SHANKAR, L.NARASIMHA REDDY

body2013
JUDGMENT LNR, J. Both the appeals are between the same parties and arise out of O.S.No.320 of 2007. Hence, they are disposed of through a common judgment. The respondent is the owner of premises bearing H.No.8-2-293-82/L/105-A, at M.L.As. Colony, Road No.12, Banjara Hills, Hyderabad. The appellant took the premises on lease. Two registered lease deeds were executed on 21.02.2004, one in respect of the premises and the other in respect of fixtures, furniture and amenities. The rent was agreed to be at Rs.16,000/- per month each for the premises, and amenities. Provision was also made for enhancement of rent at the rate of 10% per annum. The duration of the lease was stipulated as three years i.e., up to 31.01.2007. The respondent filed O.S.No.320 of 2007 in the Court of IV Senior Civil Judge, City Civil Court, Hyderabad, against the appellant, for recovery of possession of the premises and arrears of rent with future mesne profits and costs. It was pleaded that just on the eve of the expiry of the stipulated period of lease, a notice was served upon the appellant, requiring him to vacate the premises and despite the same, the possession was not handed over. Damages were claimed at the rate of Rs.1,00,000/- per month, for use and occupation. The appellant filed a written statement opposing the suit. The existence of lease, under the lease deeds was admitted. It was however pleaded that there is a provision for renewal of the lease and though a request was made in that behalf, the respondent did not come forward. It was also pleaded that the notice under Section 106 of the Transfer of Property Act, 1882 (for short ‘the Act’) was issued, even while the lease was in subsistence and that the same cannot give raise to any legal consequences. The appellant has also filed a counter claim for the relief in the form of a direction to the respondent to execute the lease deeds for the period commencing from 01.02.2007 to 31.01.2010, both as regards premises and fixtures, furniture and amenities. It was also prayed that in case, the respondent fails to execute the deeds for renewal of the lease, the Court may execute such documents. The respondent filed a written statement to the counter claim. It was also prayed that in case, the respondent fails to execute the deeds for renewal of the lease, the Court may execute such documents. The respondent filed a written statement to the counter claim. It was stated that the renewal of the lease is purely on the basis of the consent of both the parties and once she has expressed her intention not to renew the lease, by issuing the notice, the question of her being required to execute the deeds beyond 31.01.2007, does not arise. Through its judgment, dated 29.09.2009, the trial Court decreed the suit directing the appellant to deliver the vacant possession of the suit schedule property, together with fixtures and furniture and to pay the future damages at the rate of Rs.1,00,000/-per month towards use and occupation from 20.02.2007 till the date of delivery of possession. The counter claim was rejected in its entirely. C.C.C.A.No.18 of 2010 is filed by the appellant challenging the decree of eviction and mesne profits passed by the trial Court and Cross Objections are filed by the respondent not satisfied with the quantum of mesne profits. C.C.C.A.No.89 of 2010 is filed feeling aggrieved by the rejection of the counter claim. Sri R.A.Achuthanand, learned counsel for the appellant submits that the trial Court did not take into account the fact that the lease deeds Exs.A.1 and A.2 contain a clause for renewal and once the appellant has expressed his willingness, for renewal of the lease, the relief ought to have been granted. He further submits that the very fact that the lease provided for revision of rent every year, and the same was being adhered to, fortifies the right of the appellant to seek renewal of lease. He contends that the very institution of the suit was defective, inasmuch as it was filed on the basis of a notice of termination, issued during the subsistence of lease, and that it does not fit into Section 106 of the Act at all. Learned counsel further submits that though there was absolutely no evidence, as regards mesne profits, the trial Court granted the relief without any basis. He contends that damages or mesne profits could not have been granted for fixtures and amenities. Learned counsel further submits that though there was absolutely no evidence, as regards mesne profits, the trial Court granted the relief without any basis. He contends that damages or mesne profits could not have been granted for fixtures and amenities. Sri V.Ravinder Rao, learned counsel for the respondent, on the other hand, submits that the lease was specifically for a term of three years and the revision of rent was for every year. He contends that the facility of renewal of lease was purely dependant upon the mutual consent of both the parties and the respondent signified her intention not to extend the lease by serving notice upon the appellant, much before the expiry of lease. He contends that even if the notice is to be treated as not the one, which fits into Section 106 of the Act, it has served the purpose of expressing the intention of the respondent, of not extending the lease, and the appellant cannot claim the status of the tenant at sufferance. He contends that evidence was adduced in respect of damages for use and occupation. The suit was filed for recovery of vacant possession of the premises and arrears of rent. The relationship between the parties as lessee and lessor was not disputed. On the basis of the pleadings before it, the trial Court framed the following issues for its consideration: 1. Whether the plaintiff is entitled to the relief of eviction of the defendant as prayed for? Whether the plaintiff is entitled to the relief of mesne profits? 2. Whether the defendant is entitled to a direction to the plaintiff to execute registered lease deed in terms of agreement dt. 21.02.2004 for the period 1.2.2007 to 31.1.2010 as prayed for? On behalf of the respondent, P.Ws.1 and 2 were examined and Exs.A.1 to A.6 were filed. On behalf of the appellant, D.Ws.1 and 2 were examined and no documentary evidence was adduced. The suit was decreed, directing delivery of possession of the suit schedule premises. The damages at the rate of Rs.1,00,000/- per month from 20.02.2007 till the date of recovery of possession were awarded. In view of the grounds raised in the appeal and the arguments advanced by the learned counsel for the parties, the following points arise for consideration: 1. Whether the suit filed by the respondent herein was not maintainable in law? 1. In view of the grounds raised in the appeal and the arguments advanced by the learned counsel for the parties, the following points arise for consideration: 1. Whether the suit filed by the respondent herein was not maintainable in law? 1. Whether the legal notice, dated 04.01.2007 marked as Ex.A.4 can be treated as valid under Section 106 of the Act? And 2. Whether the respondent was entitled for the relief of mesne profits/damages and if so, at what rate? Point Nos.1 & 2: The lease was covered by two documents executed on 21.02.2004, marked as Exs.A.1 and A.2; one for the premises and the other for fixtures, furniture and amenities. The period of lease mentioned therein is three years. The lease expired by 20.02.2007. At a time when the period of lease mentioned in Exs.A.1 and A.2 was about to expire, the respondent got issued a notice marked as Ex.A.4 requiring the appellant to vacate premises. Obviously, he intended that notice to be as the one under Section 106 of the Act. The contention advanced by the appellant is that the issuance of notice during the subsistence of lease cannot be countenanced and that the suit filed on the strength of such notice is not tenable in law. The first part of the contention deserves to be accepted. The very opening portion of Section 106 of the Act makes it clear that a notice under it can be issued, if only the lease is not governed by any other arrangement between the parties. Once there is a registered lease deed between the parties, it is axiomatic that their relation shall be governed by the condition stipulated therein. At the most, the quit notice in such cases can be after the period stipulated in the lease deed expired. Ex.A.4 was issued much before the expiry of the period covered by Exs.A.1 and A.2. Therefore, Ex.A.4 cannot be treated as the one, which accords to Section 106 of the Act. It is however difficult to accept the contention of the appellant that the suit could not have been filed, once the notice is found to be defective. It is not his case that the suit was filed before the expiry of the period mentioned in Exs.A.1 and A.2. It was only after the expiry of the period mentioned therein, that the suit was filed. It is not his case that the suit was filed before the expiry of the period mentioned in Exs.A.1 and A.2. It was only after the expiry of the period mentioned therein, that the suit was filed. The occasion to treat the appellant as a ‘tenant holding over’ under Section 116 of the Act would have arisen, if the respondent received rents after expiry of the period and did not express his intention to terminate the relationship. The provision makes it clear that a lessee can be treated as holding over, if only the lessor receives the rent or otherwise gives his consent for the lessee to continue in possession. Though Ex.A.4 may not have accorded with Section 106 of the Act, it did serve the purpose of communicating the intention of the respondent to the appellant that the lease would not be continued beyond the stipulated period. That in turn has prevented Section 116 of the Act from coming into play as between the parties. Another contention of the appellant is that there existed a clause for renewal of the lease beyond three years and though request was made in that behalf, it was not acceded to. It is also urged that the very fact that the lease is to be revised year after year with enhancement by 10% and the fact that the respondent received enhanced rent discloses that there is clear intention for renewal of the lease. Even if what is pleaded by the appellant is true, it does not lead to renewal of the lease. Receipt of rent, in terms of the lease deed, cannot be construed as expression of consent for renewal. These two are separate and distinct aspects. It is only when there is mutual agreement between the parties in this behalf that a renewal can come into existence. Neither any written request was made by the appellant nor did the respondent give his consent. Though a counter claim was filed in the suit for a decree directing the respondents execute the lease deeds for the period beyond 01.02.2007, the appellant failed to indicate or prove the basis for his right. The mere existence of a clause providing for renewal does not clothe the appellant with the right to seek renewal. No promise was held out by the respondent in this regard. Therefore, point Nos. 1 and 2 are answered against the appellant. The mere existence of a clause providing for renewal does not clothe the appellant with the right to seek renewal. No promise was held out by the respondent in this regard. Therefore, point Nos. 1 and 2 are answered against the appellant. Point No.3: The respondent claimed damages for the use of premises beyond the expiry of period of lease. The trial Court awarded a sum of Rs.1,00,000/- per month. There are some aspects, which need to be taken into account, in this regard. The first is that the damages for use and occupation, for the most of part of it, are in relation to the items of immovable property meaning thereby, the premises. In this case, the rent is split between the use of premises, on the one hand and use of fixtures, furniture and amenities, on the other hand. The award of damages for the use of fixtures, furniture and amenities is something uncommon. The record discloses that the appellant is paying damages at the rate of Rs.1,00,000/-per month from March 2010 onwards on the basis of the orders passed by this Court. We are of the view that the payment so made can be treated as holding good for the entire period for which the damages are claimed. Hence, C.C.C.A.No.18 of 2010 is partly allowed confirming the decree for eviction and modifying the one for payment of damages, by restricting the amount, which is already paid in different forms, such as rent, in accordance with the lease deed or as per the orders of this Court. In view of the modification of the decree, as to the damages, Cross Objections No.4925 of 2010 in C.C.C.A.No.18 of 2010 are dismissed. C.C.C.A.No.89 of 2010 is also dismissed. The miscellaneous petitions filed in these appeals shall also stand disposed of. There shall be no order as to costs.