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2013 DIGILAW 690 (AP)

M. Akbar A Khan v. Syed Saleem Ahmed

2013-08-26

L.NARASIMHA REDDY, S.V.BHATT

body2013
JUDGMENT : L. Narasimha Reddy Both the appeals are between the same parties and are in relation to the same item of property, except that in C.C.C.A.No.176 of 2005, there is one more appellant. Hence, they are disposed of through a common judgment. For the sake of convenience, the parties herein are referred to as arrayed in C.C.C.A.No.176 of 2005. The respondent is the absolute owner of the premises, bearing No.8-1-21/4, situated at Suryanagar Colony, Toli Chowki, Hyderabad, with built up area of 367 square yards. Through an agreement of lease dated 01.12.1994, he leased the premises in favour of the 1st appellant at a monthly rent of Rs.6,000/-. The period of lease under the agreement was 11 months and it was being extended from time to time. With effect from 01.09.1997, the rent was at Rs.8,242/-. The respondent filed O.S.No.636 of 1998 in the Court of I Senior Civil Judge, City Civil Court, Hyderabad, for eviction of the appellants from the premises. It was also alleged that there are arrears of rent and prayed for the decree for recovery thereof. He pleaded that a notice, dated 30.05.1998 under Section 106 of the Transfer of Property Act (for short ‘the Act’) was issued terminating the tenancy and requiring the appellants to put him in vacant possession of the premises, but they did not accede to the request. The appellants filed written statement admitting the tenancy and the quantum of rent as pleaded in the plaint. They denied the allegation as to arrears of rent. It was alleged that the 2nd appellant has nothing to do with the lease and that the notice, dated 30.0.1998, was not received by the 1st appellant at all. An additional plea was raised to the effect that the respondent offered to sell the premises, in the month of April, 1998, for a sum of Rs.20 lakhs and that a sum of Rs.10 lakhs was paid as advance under receipt of the same date. They pleaded that from the date of agreement, his possession is that of prospective purchaser and not as a tenant or lessee. The written statement was got amended, by incorporating the plea to the effect that an amount of Rs.18,000/- was paid to the respondent towards rent on 22.08.1997 during the pendency of O.S.No.636 of 1998. They pleaded that from the date of agreement, his possession is that of prospective purchaser and not as a tenant or lessee. The written statement was got amended, by incorporating the plea to the effect that an amount of Rs.18,000/- was paid to the respondent towards rent on 22.08.1997 during the pendency of O.S.No.636 of 1998. The 1st appellant filed O.S.No.84 of 2003 in the Court of X Additional Chief Judge, City Civil Court, Hyderabad, against the respondent for the relief of specific performance of agreement of sale. After referring to the initial relationship as lessee and lessor, in respect of the premises, the 1st appellant stated that the respondent offered to sell the premises for a sum of Rs.20 lakhs and that an agreement of sale and receipt for advance of Rs.10 lakhs were executed on 03.04.1998. It is pleaded that in stead of executing a sale deed, in his favour, the respondent has filed O.S.No.636 of 1998 for eviction with a mala fide intention. It was pleaded that he was ready and willing to pay the balance of consideration and prayed for a decree for specific performance of an agreement of sale. In that suit, the respondent filed a written statement flatly denying the execution of agreement of sale or receipt of Rs.10 lakhs. He pleaded that the so-called agreement of sale and receipt are fabricated documents. He has also raised the plea of limitation. O.S.No.636 of 1998, which was pending in the Court of I Senior Civil Judge, City Civil Court, Hyderabad, was transferred to the Court of X Additional Chief Judge, City Civil Court, Hyderabad, where O.S.No.84 of 2003 was pending. It was renumbered as O.S.No.133 of 2003. Though the suits were pending in the same Court, as between the same parties, they were tried separately. Through separate judgments, dated 23.06.2005, the trial Court decreed O.S.No.133 of 2003 and dismissed O.S.No.84 of 2003. C.C.C.A.Nos.176 and 201 of 2005, respectively, are filed against the said judgments and decrees. Sri M.A.Mujeeb, learned counsel for the appellants, submits that the respondent has offered to sell the property for a sum of Rs.20 lakhs and has received the advance of Rs.10 lakhs, and thereby, the possession of the appellants over the premises, which was initially that of a tenant, has become the one, of an agreement holder. Sri M.A.Mujeeb, learned counsel for the appellants, submits that the respondent has offered to sell the property for a sum of Rs.20 lakhs and has received the advance of Rs.10 lakhs, and thereby, the possession of the appellants over the premises, which was initially that of a tenant, has become the one, of an agreement holder. He contends that the agreement of sale dated 03.04.1998 was filed into the Court and when the same was sent to the Registrar for impounding, a communication was received by the trial Court to the effect that the stamp paper on which it was written is not a genuine one and that the trial Court neither returned the document nor has taken the same on record. He submits that the agreement of sale and receipt were proved by examining the witnesses. On the question of limitation, learned counsel submits that the appellants came to know about the refusal on the part of the respondent to proceed with the agreement, only when he filed affidavit in lieu of chief examination in O.S.No.133 of 2003(old O.S.No.636 of 1998) and if reckoned from that date, the suit is filed within the limitation. Learned counsel has also argued that the suit for eviction filed by the respondent was not maintainable, since the notice under Section 106 of the Act was not received by the appellants at all. He submits that the trial Court did not take this important aspect into account and has mechanically decreed the suit for eviction and dismissed the suit for specific performance. Sri H.Venugopal, learned counsel for the respondent, on the other hand, submits that the appellants have not only committed default in payment of rents, but also have put the premises to gross misuse, as is evident from the correspondence, that ensued between the parties. He contends that the notice under Section 106 of the Act was sent to the address of the suit schedule premises and the deliberate refusal on the part of the appellants cannot be a ground to oppose the suit. Learned counsel further submits that the so-called agreement of sale and the receipt are fabricated documents and the report furnished by the Registrar, to whom it was forwarded for impounding it demonstrates that a fake stamp paper was used in preparing the document. Learned counsel further submits that the so-called agreement of sale and the receipt are fabricated documents and the report furnished by the Registrar, to whom it was forwarded for impounding it demonstrates that a fake stamp paper was used in preparing the document. He submits that the agreement was not made part of record and that ground itself is sufficient to dismiss the suit for specific performance. He further submits that in para 3 of the plaint in O.S.No.84 of 2003, it was clearly mentioned that the respondent has changed his mind, in the context of the alleged agreement and filed O.S.No.636 of 1998 for eviction and, once he understood the refusal on the part of the respondent, (assuming that there existed an agreement), the suit for specific performance filed in 2005 i.e. five years thereafter, is clearly barred by limitation. He submits that the trial Court has taken correct view of the matter in both the suits and the appeals do not merit consideration. On the basis of the pleadings before it, the trial Court framed the following issues for its consideration: In O.S.No.133 of 2003 “Whether the plaintiff is entitled for the relief of recovery of possession of the suit property. i) Whether the plaintiff is entitled for the relief of recovery of arrears. ii) Whether the plaintiff is entitled for the damages as prayed for. iii) Whether the plaintiff is the agreement holder to the suit property from April 1998 and not liable for payment of rents. iv) Whether the Court fee paid is sufficient. v) If so to what relief Additional Issue dated 13.06.2000 vi) Whether the lease deed dated 01.09.1997 is true, valid and binding on plaintiff.” The sole respondent deposed as PW.1 and he filed Exs.A.1 to A.20. On behalf of the appellants, DWs.1 to 3 were examined and Exs.B.1 to B.11 rental receipts and Ex.B.12 original receipt dated 03.04.1998 were filed. In O.S.No.84 of 2003 i) Whether the plaintiff is entitled for specific performance of contract. ii) If so to what relief. Additional Issue dated 08.02.2005 Whether the suit is barred by limitation” On behalf of the appellants, PWs.1 to 3 were examined and a certified copy of receipt was marked as Ex.A.1. On behalf of the respondent, DWs.1 and 2 were examined and Exs.B.1 to B.12 were filed. As observed earlier, O.S.No.133 of 2003 was decreed and O.S.No.84 of 2003 was dismissed. On behalf of the respondent, DWs.1 and 2 were examined and Exs.B.1 to B.12 were filed. As observed earlier, O.S.No.133 of 2003 was decreed and O.S.No.84 of 2003 was dismissed. After hearing the elaborate arguments advanced by the learned counsel for the parties, we find that the following points arise for consideration: i) Whether the notice issued under Section 106 of the Act by the respondent marked as Ex.A.3 can be taken to have been served on the appellants and whether the appellants are liable to be evicted from the premises. ii) Whether there is any defect as to the representation of the respondent through his G.P.A. in the proceedings. iii) Whether the appellants proved the plea as to execution of agreement of sale in his favour. iv) Whether the suit filed by him for specific performance, is barred by limitation. Point No.1: This point has bearing upon the suit for eviction. The relationship between the parties is not disputed. The 1st appellant became the tenant of the sole respondent, on the basis of the lease agreement, dated 01-12-1994, marked as Ex.A-1, therein. Alleging that the appellants are the tenants of the premises and that they committed default in payment of rents, from 31-03-1997 onwards, and that a sum of Rs.1,13,428/-became due, the respondent got issued notice dated 30-05-1998, invoking Section 106 of the Act, and requiring the appellant to vacate the premises. The same is marked as Ex.A-3. Thereafter, the suit was filed for eviction. On behalf of the appellants, two grounds were raised: The first is regarding receipt of Ex.A-3, and the second is about the arrears. Later, the written-statement was amended to incorporate the plea that the 2nd respondent has nothing to do with the premises. In his deposition, the respondent stated that Ex.A-3 was issued to the appellants and the acknowledgement of receipt thereof was filed as Ex.A-4. The only suggestion made to him in the cross-examination was that Ex.A-3 was addressed to the 2nd appellant, represented by the 1st appellant. Another question put to him was whether the signature on Ex.A-4 was that of the 1st appellant or not. It was suggested in the cross-examination that the 2nd appellant has nothing to do with the premises. However, in the cross-examination of the 1st appellant, as DW-1, it was elicited that in Ex.A-1 he signed as the Chairman-cum-Managing Director of the 2nd appellant. It was suggested in the cross-examination that the 2nd appellant has nothing to do with the premises. However, in the cross-examination of the 1st appellant, as DW-1, it was elicited that in Ex.A-1 he signed as the Chairman-cum-Managing Director of the 2nd appellant. It has also been elicited that the address mentioned in Exs.A-3 and A-4 is correct, and that the suit summons sent to the same address were pasted on the wall of the premises, and thereafter the watchman of the premises hand over the same to the 1st appellant. Service of notice under Section 106 of the Act is an important step, that must precede the filing of a suit for eviction; by invoking that provision. In case the notice is addressed to a place, other than the one, from which the eviction is sought, the plea of the defendant, in such a suit, about non-receipt of notice, can certainly be appreciated. Where, however, the notice is sent to the very premises from which, the eviction is sought, the obligation of the plaintiff stands discharged, once the address is found to be correct, and someone at that place received it. The plea that though the notice is sent to the correct address, the defendant did not receive it; can not be accepted, if it is proved that someone at that address received it. The conduct of the 1st appellant, in this behalf, needs to be taken note of. It was elicited from him that even the summons in the suit, sent to the same address, were pasted on the wall, obviously when they were not received, and thereafter, he colleted them from the watchman. If that is the attitude of the 1st appellant, it is difficult to accept the contention that Ex.A-4 was not signed by any person, living or working in the suit schedule premises. The trial Court found that the notice was validly served. We are in agreement with the same. Coming to the second ground, though there is serious dispute about the arrears of rent, it is not necessary, either to plead or prove the same, as a condition precedent to seek eviction. Once the tenancy is found to be month to month, as is evident from Ex.A-1, and a notice under Section 106 of the Act is served, the appellants became liable to be evicted from the premises. The point No.1 is answered accordingly. Once the tenancy is found to be month to month, as is evident from Ex.A-1, and a notice under Section 106 of the Act is served, the appellants became liable to be evicted from the premises. The point No.1 is answered accordingly. Point Nos. 2 and 3: Points 2 and 3 are in relation to the suit filed by the 1st appellant for the relief of specific performance of the alleged agreement of sale. As a matter of fact, in his written-statement, filed in O.S.No.133 of 2003 (old No.636 of 1998), the 1st appellant pleaded that the respondent executed an agreement of sale in his favour. In O.S.No.84 of 2003, the 1st appellant stated that an agreement of sale was entered into on 03-04-1998, where under the respondent agreed to sell the property for Rs.20 lakhs, and that on the same day, Rs.10 lakhs was paid towards earnest money. The1st appellant has also pleaded that the respondent changed his mind, and instead of executing the sale deed, he filed O.S.No.636 of 1998, and in that view of the matter, he filed the suit for specific performance. The respondent filed a written-statement and specifically denied the execution of the agreement of sale or issuance of receipt. It has already been mentioned that both the suits were tried separately; though they were pending, before the same Court. On behalf of the 1st appellant, PWs 1 to 3 were examined and the receipt, marked as Ex.A-1, was filed. On behalf of the respondent, DWs 1 and 2 were examined and Exs.B-1 to B-12 were filed. These documents comprised mostly, of the pleadings in O.S.No.636 of 1998 and the applications filed therein. One of the contentions raised in the appeal in relation to the decree passed in that suit was that, the G.P.A. executed by the respondent is not in accordance with law. It is pertinent to mention here that the respondent himself deposed as DW-1 and he stated that on account of his stay in Libya, as a Faculty of Pharmacy in Al-Fatch University, he permitted his GPA to instruct their counsel to file the written-statement. An attempt was made to show that he was not in Libya, when necessary instructions were given for filing of written-statement. All this pales into insignificance, once the sole respondent herein deposed as a witness, and filed the written statement in the suit. An attempt was made to show that he was not in Libya, when necessary instructions were given for filing of written-statement. All this pales into insignificance, once the sole respondent herein deposed as a witness, and filed the written statement in the suit. The burden to prove the execution of the agreement of sale and the issuance of receipt squarely rested upon the respondent, once the 1st appellant has denied the same. This is a typical case, in which, the basic document i.e. the agreement did not become part of record. The reasons are some-what peculiar. Along with the suit, the alleged agreement of sale was filed by the 1st appellant. On the ground that it was not properly stamped, the document was sent to the Registrar for impounding. However, a communication was received by the Court to the effect that the non-judicial stamp, on which the document was written, is a fake one, and the question of collecting deficit stamp duty on such document, does not arise. Though a plea was raised in O.S.No.636 of 1998, in the written statement filed by the appellants, that an agreement of sale was executed by the respondent, no date thereof was mentioned. The 1st appellant did not take steps in this behalf. The result is that the so-called agreement of sale was not made part of the recordat all. That ground itself was sufficient to dismiss the suit. Assuming that there existed a valid agreement of sale and it was proved to the satisfaction of the Court, it needs to be seen as to whether O.S.No.84 of 2003 was filed within limitation. The respondent has taken a specific plea that the suit is barred by limitation. The answer given to this objection, in the course of the arguments is that denial or refusal on the part of the respondent emerged only in the course of his evidence in O.S.No.636 of 1998 and within three years from that date, the suit for specific performance was filed. PW-2 is said to be a witness to Ex.A-1, the alleged receipt. To a question as to whether he identifies the signature of the respondent, he answered in the negative. He stated that he does not know whether the respondent was in Tripoli, on 03-04-1998. Those two answers are sufficient to hold that Ex.A-1 is not proved. PW-2 is said to be a witness to Ex.A-1, the alleged receipt. To a question as to whether he identifies the signature of the respondent, he answered in the negative. He stated that he does not know whether the respondent was in Tripoli, on 03-04-1998. Those two answers are sufficient to hold that Ex.A-1 is not proved. The record discloses that though PW-3, stating to be another witness to Ex.A-1, was examined. His cross-examination is not available. When the agreement itself is not filed into the Court, the 1st appellant cannot expect any relief in relation thereto. The failure on his part to make the alleged agreement of sale as part of record, leads to an inference, that he did not take further steps, fearing that he may not be able to prove the execution of the agreement. Hence both the points are answered against the appellants. Point No.4: It is always incumbent upon a plaintiff, in a suit, to explain as to how the suit is filed within limitation. This is essential because in the absence of such a plea, the Court itself can reject the plaint, even at the threshold. Section 3 of the Limitation Act places an obligation upon the Court, to satisfy itself, that the plaint presented before it is within the limitation. At more places than one, the 1st appellant stated in the plaint, in O.S.No.84 of 2003, the basis or immediate provocation for him to file the suit. In paragraph-1 of the plaint he stated that the respondent is the owner of the property, and in paragraph-2, the particulars of the lease and the factum of filing of O.S.No.636 of 1998, by the respondent, were stated. In paragraph-3, it was mentioned that the respondent executed the agreement of sale on 03-04-1998 and that on the same day, he received a sum of Rs.10 lakhs and issued receipt. Reference was also made to clause 6 of the alleged agreement of sale. In paragraph-3, it was mentioned that the respondent executed the agreement of sale on 03-04-1998 and that on the same day, he received a sum of Rs.10 lakhs and issued receipt. Reference was also made to clause 6 of the alleged agreement of sale. At the end of the paragraph 3, it is stated: “And in spite of the above said Agreement and particular clause No.6, on the instigation of his (Defendant), ;his wife and one Syed Taher Hussain, the Defendant changed his mind and filed a false ejectment suit in O.S.No.636/1998 on the file of Ist Sr.Civil Judge alleging that the Plaintiff is a Lessee and that he sent termination notice (which was not at all served on the plaintiff or any of his staff) by suppressing the agreement of sale and to defeat the claim of the Plaintiff under the Agreement of Sale, and now the said suit is pending disposal, and the original Agreement of Sale dt.3-4-1998 is being filed in the said suit along with receipt dt. 3-4-1998, Rent receipts, lease deeds etc.” In paragraph 5 of the plaint, the following statement was made: “3-4-1998 the date of Agreement of Sale and receipt for Rs.10,00,000/-, and denial by the Defendant dt.19-0-2000 constitute the cause of action for filing this suit.” Paragraph 8 pertains to the cause of action and paragraph 9 is about limitation. They read, “8. The Cause of action for the plaintiff for filing the suit on 3-4-1998 when the Sale consideration in part was paid to the Defendant and the Defendant passed receipt of Rs.10.00 lakhs by executing Agreement of Sale, 19-9-2000 when the Defendant denied while deposing in O.S.No.636/1998 about the execution of the Agreement of Sale and the very transaction of Agreement of Sale, and the same is continuing one. 9. The suit is within limitation as the defendant refused and denied the very Agreement of Sale and transaction of Agreement of Sale dt.3-4-1998 while deposing in O.S.No.636/98 dt.19-9-2000.” From a perusal of the extracted portion, it is evident that even according to the 1st appellant, the change of mind on the part of the respondent and his refusal to honour the commitment under the alleged agreement became manifest with the filing of O.S.No.636 of 1998. The suit for specific performance was filed five years thereafter. The suit for specific performance was filed five years thereafter. In his attempt to shift the starting point of limitation to a later date, the respondent made an endeavour to suggest that the limitation commenced on the date on which, the respondent herein was cross-examined in O.S.No.636 of 1998. The relevant portion in paragraph 4 reads: “…Instead of coming forward for registering the Sale Deed by receiving the balance sale consideration, the Defendant filed the above said ejectment suit and denied the very execution of Agreement of Sale and Receipt dt.3-4-1998 and in his cross examination in that suit, he also denied to execute and register the Sale Deed in favour of the Plaintiff.” There cannot be any better instance of a self-contradiction and a vain attempt to portray a hopelessly time barred claim, as being within limitation than this. Once the understanding of the appellant himself was that the filing of O.S.No.636 of 1998 was an act of denial on the part of the respondent to honour the so-called agreement of sale, the limitation has to be reckoned from the date of presentation of that suit, or at the most, the date on which, the summons were received by the appellants. Either way, O.S.No.84 of 2003 is barred by limitation. We accordingly answer the point against the appellants. Both the appeals fail on facts, as well as in law; and we accordingly dismiss the same with costs. The miscellaneous petitions filed in these appeals shall also stand disposed of.