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2016 DIGILAW 345 (AP)

Sayed Salimuddin v. Abdul Kareem

2016-06-27

M.SEETHARAMA MURTI

body2016
JUDGMENT : 1. This Civil Revision Petition under Article 227 of the Constitution of India by the unsuccessful defendants/respondents is directed against the order dated 22.07.2015 of the learned I Senior Civil Judge, City Civil Court, at Hyderabad, passed in I.A.no.61 of 2014 in O.S.no.1620 of 2013 filed by the plaintiff/respondent herein under Order XV-A(2) of the Code of Civil Procedure, 1908 requesting to direct the defendants to pay to the plaintiff the arrears of rent as admitted at Rs.33,385/- per month from March, 2013 till November, 2013 together with service tax. 2. I have heard the submissions of the learned senior counsel appearing for both the parties. I have perused the material record. 3. The case of the plaintiff in support of the request in the aforesaid application, in brief, is this: The petitioner/plaintiff (plaintiff, for brevity) is a lease holder of the premises bearing no.4-3-548/1, Boggulakunta of Hyderabad with powers to sub-lease the property. While so, the respondents/defendants (defendants, for brevity) had obtained shop no.15 on lease from the plaintiff vide lease deed dated 29.05.2002 for a term of three years, having paid Rs.6,00,000/- as deposit. The defendants had agreed to pay a monthly rent of Rs.4,500/- for running optical trade. However, the defendants changed the business to Car Accessories without the consent of the plaintiff. Presently, the defendants are running eatables business under the name and style Vegetable Nation. At the request of the defendants, the plaintiff had executed an annexure to the lease agreement. The defendants undertook to sell only bakery items, Tea, Coffee, Lebanese Sweet and confectionary, fruit cocktail, salad bar, sweet corn, pop corn, sugar candy, fruit juices, cool drinks and softy ice creams etcetera but not vegetable chat items and specially Chinese Food. But, the defendants are carrying on business contrary to the same and are violating the terms of the Annexure. While doing the business in the said shop no.15, the defendants had also obtained on lease mulgies bearing nos.15/A and 54 and agreed to pay monthly rents of Rs.1,500/- and Rs.15,000/- respectively. The defendants 1 and 2 had thereafter renewed the lease and are paying Rs.24,965/- towards rent in respect of shops nos.15, 15A and 54 and a sum of Rs.3,000/- per month towards use of the covered open space on the Western side of front shop no.15. Thus, the total monthly rent payable is Rs.27,965/-. The defendants 1 and 2 had thereafter renewed the lease and are paying Rs.24,965/- towards rent in respect of shops nos.15, 15A and 54 and a sum of Rs.3,000/- per month towards use of the covered open space on the Western side of front shop no.15. Thus, the total monthly rent payable is Rs.27,965/-. Thus, the plaintiff is the landlord and the defendants are the tenants. The monthly rent as enhanced from 01.09.2012 is Rs.33,385/-. The said rent is exclusive of electricity charges, water charges and service tax. The total deposit made by the defendants with the plaintiff is Rs.9,75,000/- and it is an interest free deposit refundable to them on their vacating the property. As per the agreed terms of lease, the defendants have to pay the rent due in advance, i.e., on or before the 5th day of the month. However, the defendants are not paying the rents in time. They had committed defaults in payment of monthly rents since March 2013. The arrear of rent for the said period works out to Rs.2,67,080/- and the same is payable together with service tax amounting to Rs.33,011/-. The defendants are due to pay the arrears of rent from March 2013 till November2013, which comes to Rs.3,00,465/- together with Service Tax @ 12.36% amounting to Rs.37,137/-. Thus, the total amount due and payable by the defendants to the plaintiff is Rs.3,37,602/-. In spite of receiving legal notice, they did not pay the said amount and had also failed to vacate the property. The defendants are liable to pay the monthly rents from March 2013 till November 2013 as stated above. Hence, it is necessary to direct them to deposit the said sum together with service tax which comes to Rs.3,37,602/- to the plaintiff/landlord. 4. Per contra, the case of the defendants, in brief, is this: The material allegations in the affidavit of the plaintiff are false. The defendants have not violated any terms of the annexure as alleged by the plaintiff. The monthly rent mentioned includes charges for amenities also. There is no dispute that the plaintiff is a lessee of the premises bearing no. 4-3-548/1 in Princess Durru Shehvar Complex (complex, for brevity), Boggulakunta X Road, Hyderabad with powers to sub-lease. The defendants have not violated any terms of the annexure as alleged by the plaintiff. The monthly rent mentioned includes charges for amenities also. There is no dispute that the plaintiff is a lessee of the premises bearing no. 4-3-548/1 in Princess Durru Shehvar Complex (complex, for brevity), Boggulakunta X Road, Hyderabad with powers to sub-lease. However, the plaintiff suppressed the fact that his lease had expired on 05.02.2012 and a legal notice dated 14.05.2012 was issued to him terminating his lease by his landlord Princess Durru Shevar Technical Education Wakf (original lessor, for brevity), who is the lessor of the plaintiff. These defendants are the sub-tenants of the plaintiff. These defendants lease had expired on 15.08.2012. The plaintiff did not renew the lease of these defendants after 15.08.2012. The original lessor of the plaintiff demanded the defendants to vacate the portions, i.e., the subject property bearing shop nos.15, 15A and 54 and the open space on the Western side of the properties. The defendants had requested the plaintiff to renew the lease. But, the plaintiff dragged on the matter. Finally, the plaintiff had stated that his lease had expired and asked the defendants to enter into a lease agreement with the original lessor, i.e., Princess Durru Shehvar Technical Education Waqf. The original lessor entered into fresh lease agreement with the defendants and had handed over possession of the suit schedule property to the defendants and the defendants are paying rents regularly from March 2013 to the original lessor. The said fact was informed to the plaintiff herein and he is aware of the facts. The schedule property was taken over by the original lessor in March 2013. The defendants paid the monthly rent up to the end of February 2013 to the plaintiff and had stopped paying rents thereafter as possession of the suit schedule property was taken over by the original lessor from March 2013 and as from then onwards, the rent was being collected by the original lessor. The defendants are not liable to pay rents anymore to the plaintiff herein. The defendants are not liable to pay rents anymore to the plaintiff herein. Suppressing the fact that the original lessor had terminated the lease of the plaintiff in February 2012 and the lease deed was cancelled through a legal notice and that the original lessor took possession of the suit schedule property in March 2013 and that the defendants were made to execute a registered lease agreement from that date in favour of the original lessor, the present suit was filed. The defendants are paying rents from March 2013 to the original lessor and as the defendants seized to be the lessees of the plaintiff, the plaintiff has no right to claim rents etcetera from the defendants from March 2013 onwards. No rent is due and payable. The plaintiff suppressed the receipt of reply notice dated 14.10.2013 got issued by the defendants. The petition is liable for dismissal. 5. At the time of enquiry before the trial Court, no oral and documentary evidence was adduced. On merits, and by the order impugned, the trial Court had allowed the petition of the landlord/plaintiff and directed the defendants/tenants to pay the admitted monthly rent of Rs.27,965/- from March 2013 till 31.07.2015, i.e., for 29 months in a total sum of Rs.8,10,985/- within two months from the date of the order. In the orders, it was further observed that if the said amount is not deposited within the time stipulated, the defence of the defendants will be struck off. In the said order it was also ordered that the defendants shall continue to pay the future rents at the said rate to the plaintiff on or before 5th of succeeding month till the disposal of the suit. Therefore, the aggrieved defendants are before this Court. 6. The learned senior counsel appearing for the defendants while reiterating the case of the defendants, which is extracted supra, would submit as follows: Since March 2013, there is no relationship of lessees and lessor between the defendants and the plaintiff. Hence, they are not liable to pay any rents to the plaintiff. The defendants have already entered into a lease deed with the original lessor/original owner of the premises and hence, they are regularly paying rents to the original lessor and hence, they cannot be directed to pay rents again i.e., a second time for the same period to the plaintiff in the suit. The defendants have already entered into a lease deed with the original lessor/original owner of the premises and hence, they are regularly paying rents to the original lessor and hence, they cannot be directed to pay rents again i.e., a second time for the same period to the plaintiff in the suit. The Court below ought to have seen that there is no valid lease deed in favour of the plaintiff since 2012 and that his continuation in the lease hold premises without a valid lease from the Mutawalli/original lessor is a void transaction under the provisions of the Wakf Act. The findings of the Court below that the plaintiff continues to be the landlord of the defendants until and unless the plaintiff is legally evicted by his lessor i.e., the original lessor are incorrect, in the facts and circumstances of the case. The order is unsustainable under facts and in law. 7. The learned counsel for the plaintiff while reiterating the case of the plaintiff, which is extracted supra, supported the orders of the Court below. 8. In view of the facts and the submissions, the points that arise for consideration are: 1. Whether the plaintiff established prima facie the landlord and tenant relationship between the plaintiff and the defendants herein and made out valid and sufficient grounds to direct the defendants to pay the monthly rents at the rate as admitted by them i.e., @ Rs.27,965/- per month from 01.03.2013 till 31.07.2015 and future rents? 2. Whether the order impugned is unsustainable under facts and in law? 9. POINTS: 9.1 The plaintiff has originally taken the suit schedule premises also from the original lessor. Thus, the plaintiff is a leaseholder of the suit premises with the power to sub lease the same, which he holds as a leaseholder. The plaintiff had admittedly sublet the suit schedule property to the defendants. The rent payable is Rs.27,965/- as per the submissions of the defendants, though as per the submission of the plaintiff the monthly rent as enhanced from 01.09.2012 is Rs.33,385/-. The defendants admittedly stopped paying monthly rents to the plaintiff from 01.03.2015 onwards. The plaintiff had admittedly sublet the suit schedule property to the defendants. The rent payable is Rs.27,965/- as per the submissions of the defendants, though as per the submission of the plaintiff the monthly rent as enhanced from 01.09.2012 is Rs.33,385/-. The defendants admittedly stopped paying monthly rents to the plaintiff from 01.03.2015 onwards. 9.2 The plaintiff inter alia claims that since the plaintiff had sub leased the suit schedule property to the defendants, they are bound to pay the admitted rents to the plaintiff and that there exists landlord and tenant relationship between the plaintiff on one hand and the defendants on the other. Whereas, the defendants inter alia contend as follows: The plaintiffs lease with his lessor, i.e., the original lessor has come to an end. The plaintiffs lease was terminated by the original lessor. The said fact was suppressed by the plaintiff. Though, the defendants are the sub tenants having taken the schedule premises on lease from the plaintiff, their lease term has come to an end and the plaintiff had failed to renew the lease of the defendants who are the sub-tenants of the plaintiff. The original lessor demanded the defendants to vacate the property. In the said circumstances, the defendants had no option but to deliver the suit schedule property to the original lessor. The original lessor had again leased out the suit schedule property to the defendants under a fresh lease agreement entered into with the defendants and had handed over physical possession of the plaint schedule property to the defendants; and the defendants are regularly paying rents to the original lessor, i.e., Princess Durru Shevar Technical Education Wakf and the said fact is known to the plaintiff. The defendants had paid rents regularly up to February 2013 to the plaintiff; and, after March 2013, there is no relationship of landlord and tenants between the plaintiff and the defendants herein. The defendants at present are the tenants under the original lessor; but, not under the plaintiff. Therefore, the defendants are not liable to pay rents to the plaintiff. The order of the Court below is contrary to the facts. The defendants at present are the tenants under the original lessor; but, not under the plaintiff. Therefore, the defendants are not liable to pay rents to the plaintiff. The order of the Court below is contrary to the facts. 9.3 It is not in dispute that the original lessor, having claimed that the plaintiffs tenancy is terminated, had filed a suit in O.S.no.822 of 2012 on the file of the Court of the learned XXIV Additional Chief Judge against the plaintiff herein and that the said suit between the original lessor and the plaintiff herein is pending. The correctness or otherwise of the termination of tenancy of the plaintiff and the plaintiffs entitlement to continue as a lessee under the original lessor are subject matters of that other suit filed by the original lessor. Therefore, the plaintiff contends before this Court that till O.S.no.822 of 2012 is finally disposed of, the plaintiff continues to be a legal or statutory tenant of the original lessor and that therefore, the defendants herein cannot dispute his leasehold rights, which he had acquired under the lease with the original lessor. Therefore, the question, which incidentally falls for consideration is Whether the defendants, who are the sub-tenants inducted into the premises by the plaintiff/tenant, can, during continuance of the sub-tenancy attorn in favour of the original lessor/owner of the premises and thereby refuse to discharge their obligations towards the tenant/plaintiff who had admittedly inducted them in the premises? 10. Before proceeding further, it is apt to refer to Section 116 of the Indian Evidence Act, which reads as under: 116. Estoppel of tenant; and of licensee of person in possession. No tenant of immovable property, or person claiming through such tenant, shall, during the continuance of the tenancy, be permitted to deny that the landlord of such tenant had, at the beginning of the tenancy, a title to such immovable property; and no person who came upon any immovable property by the licence of the person in possession thereof, shall be permitted to deny that such person had a title to such possession at the time when such licence was given. 11. The above mentioned question is no longer res integra in view of the decision of the Supreme Court in Vashu Deo v. Bal Kishan . 11. The above mentioned question is no longer res integra in view of the decision of the Supreme Court in Vashu Deo v. Bal Kishan . In the aforesaid decision, the Supreme Court held that the rule enacted in the above provision of law mutatis mutandis governs the inter se relationship between the tenant and his sub-tenant. Therefore, Section 116 governs the relationship between the plaintiff/tenant and the defendants/the plaintiffs sub-tenants. The facts of the cited case are as under: The subject property therein, which is a shop, is a part of a building owned by a Trust. The shop was taken on rent by the plaintiff on a monthly rent. He had sub let the shop to the defendant at a higher monthly rent. The defendant fell in arrears. The plaintiff served a notice and filed a suit for recovery of rents and eviction as per the law applicable to the tenancy and the leasehold premises (demised premises). The defendant/tenant disputed the rent and has also taken a defence that the Trust, which is the original owner and the original lessor instituted a suit against the plaintiff/tenant and that the defendant/sub-tenant had directly attorned in favour of the Trust and entered into direct tenancy agreement and therefore, from the date of the said direct tenancy agreement, the right of the plaintiff to recover rent and secure eviction had come to an end. Therefore, the issue that fell for consideration before the Supreme Court is Whether a sub-tenant inducted by a tenant in the premises governed by the provisions of the rent control law can, during continuance of sub-tenancy and without vacating the premises, attorn in favour of the owner of the premises and thereby refuse to discharge his obligations towards the tenant who admittedly inducted him in the premises? While answering the above said question, the Supreme Court had referred to the legal position and the ratios in the precedents and had eventually held as follows: Reference to a few relevant provisions of Rajasthan Premises (Control of Rent and Eviction) Act, 1950, would be appropriate. While answering the above said question, the Supreme Court had referred to the legal position and the ratios in the precedents and had eventually held as follows: Reference to a few relevant provisions of Rajasthan Premises (Control of Rent and Eviction) Act, 1950, would be appropriate. 'Landlord' is defined by clause (iii) of Section 3 to mean 'any person who for the time being is receiving or is entitled to receive the rent of any premises as an agent, trustee, guardian or receiver for any other person or who would so receive or be entitled to receive the rent, if the premises were let to a tenant. The definition specifically provides that 'Landlord' includes a tenant in relation to a sub-tenant. Clause (iv) defines 'lease' as including a sub-lease. 'Tenant', according to clause (vii), means inter alia the person by whom or on whose account or behalf rent is, or, but for a contract express or implied would be, payable for any premises to his landlord including the person who is continuing in possession of the premises after the termination of his tenancy otherwise than by a decree for eviction passed under the provisions of this Act. Section 13 which opens with a non-obstante clause, giving it an overriding effect over any other law or contract, enjoins a court not to pass any decree or make any order in favour of the landlord evicting the tenant unless a case for eviction was made out within the four corners of Section 13. The effect of a combined reading of these several provisions is to spell out two very relevant and significant implications. Firstly, a tenant in relation to a sub- tenant is a landlord and the sub-tenant is a tenant in relation to the tenant who has inducted him on the premises. Secondly, inspite of the tenancy having come to an end under the provisions of the Transfer of Property Act, or by the terms of contract, the tenant does not cease to be a tenant and continues to hold that status unless and until a decree for eviction under the provisions of this Act has been passed against him. Where the tenancy premises are governed by rent control law, merely on termination of tenancy the tenant cannot be evicted; the tenant is entitled to continue in possession enjoying status almost on par with a person whose contractual tenancy still subsists. Where the tenancy premises are governed by rent control law, merely on termination of tenancy the tenant cannot be evicted; the tenant is entitled to continue in possession enjoying status almost on par with a person whose contractual tenancy still subsists. He cannot be evicted unless a ground for eviction under the relevant provision of rent control law is made out. He is not a tenant holding over because his tenancy is not continuing by volition or by act of the parties. Such continuance is attributable to the protection conferred by statute and therefore, he is called a statutory tenant and his tenancy a statutory tenancy (See Smt.Gian Devi Anand v. Jeevan Kumar & Ors.: AIR 1985 SC 796 and Damadilal & Ors. v. Parashram & Ors.: AIR 1976 SC 2229 ). The tenancy would determine only on a decree for eviction being passed against him. In Smt. Chander Kali Bai & Ors. v. Jagdish Singh Thakur and another : AIR 1977 SC 2262 , this Court has held that a person continuing in possession of the accommodation after the termination of his contractual tenancy is yet a tenant within the meaning of the relevant rent control legislation and on such termination, his possession does not become wrongful until and unless a decree for eviction is made against him. If he continues to be in possession after the passing of the decree then he is in wrongful occupation of the premises. In spite of the termination of tenancy by contract or under the general law (other than rent control law), the tenant continues to be a tenant liable to pay rent and is not liable to pay any damages as his occupation is not unauthorized or wrongful until the passing of decree for eviction. 12. The ratio in the decision squarely applies to the facts of the case. Having regard to the facts and the legal position obtaining, it must be held as follows: Firstly, the plaintiff/tenant in relation to the defendants/ sub-tenants is a landlord and the defendants/sub-tenants are his tenants. Secondly, inspite of the tenancy having come to an end under the provisions of the Transfer of Property Act, the plaintiff/tenant does not cease to be a tenant and continues to hold that status unless and until a decree for eviction has been passed against him in accordance with law. Secondly, inspite of the tenancy having come to an end under the provisions of the Transfer of Property Act, the plaintiff/tenant does not cease to be a tenant and continues to hold that status unless and until a decree for eviction has been passed against him in accordance with law. In spite of the termination of tenancy by contract or under the general law (other than rent control law), the tenant continues to be a tenant liable to pay rent. Therefore, it can safely be concluded that the plaintiff/tenant is in relation to the defendant/sub-tenant is a landlord, and the sub-tenants/defendants are tenants in relation to the tenant/plaintiff, who has inducted them in the suit schedule property. In spite of plaintiffs tenancy coming to an end, either under the provisions of the Transfer of Property Act or by the terms of the Contract, he does not cease to be a tenant and continues to hold the status until and unless a decree for eviction is passed against him by a competent civil Court or a Forum. The plaintiff/tenant cannot be evicted unless a ground for eviction under the relevant provisions of law is made out. The questions as to whether the Plaintiffs/tenants tenancy is validly terminated and whether he is liable for eviction in the suit filed by the original lessor have to be determined in the suit between the said parties. In short, so far as the defendants/sub-tenants are concerned the title of the plaintiff/tenant will not come to an end till the passing of such decree for eviction against him in the suit filed against him by the original lessor. Even though the original lessor has instituted the suit for eviction, the tenant/plaintiff heein has a right to contest. The suit may or may not be decreed. Therefore, the defendants/sub-tenants who are the tenants of the plaintiff herein must discharge their statutory obligation to put their landlord, i.e., the plaintiff in possession of the premises in view of his entitlement to hold the tenancy until his own right comes to an end by a decree in a suit for eviction filed against him by the original lessor. Therefore, the defendants/sub-tenants who are the tenants of the plaintiff herein must discharge their statutory obligation to put their landlord, i.e., the plaintiff in possession of the premises in view of his entitlement to hold the tenancy until his own right comes to an end by a decree in a suit for eviction filed against him by the original lessor. Further, the plaintiff/tenant has his own statutory obligations to put his landlord/original lessor, i.e., Princess Durru Shevar Technical Education Wakf in possession of the tenanted premises on his entitlement to hold the tenancy premises coming to an end, pursuant to eviction decree in the eviction suit becoming final. Unless the sub-tenants, namely, the defendants, who are his tenants, pay rents to him, he will not be in a position to pay the rent payable by him to his landlord/original lessor. It is impermissible for the defendants, who are tenants of the plaintiff to contend that without any legal compulsion, they had handed over possession to the original landlord and had entered into a fresh tenancy agreement with the original landlord/original lessor. In the case on hand the eviction suit by the original lessor against the plaintiff herein is not yet decreed and the said suit is pending. The present case is not a case where the original owner/original lessor is armed with the legal process for eviction, which cannot be resisted by the defendants/subtenants who are the tenants of the plaintiff herein. Therefore, the attornment pleaded by the defendants/sub-tenants is not under compulsion. Therefore, neither the plea of mere voluntary attornment urged by the defendants/sub-tenants nor the plea of mere institution of suit for eviction against the plaintiff by the original owner/original lessor is of any avail to the defendants herein. Without discharging their statutory obligations towards their landlord/plaintiff herein, on the mere plea of voluntary attornment to the original Lessor and on the mere fact that a suit for eviction was filed by the original lessor against the plaintiff/landlord, the defendants, who are the tenants of the plaintiff, cannot justify their theory that the landlord and tenant relationship between the plaintiff and the defendants has come to an end on the voluntary attornment to the original owner/original lessor. 13. 13. For the reasons aforementioned this Court holds that the plaintiff had established prima facie the landlord and tenant relationship between the plaintiff and the defendants herein and made out valid and sufficient grounds to direct the defendants to pay the monthly rents at the rate as admitted by them i.e., @ Rs.27,965/- per month from 01.03.2013 till 31.07.2015 and future rent. Viewed thus, this Court finds that the order of the Court below is justified and it does not brook interference. 14. In the result, the Civil Revision Petition is dismissed. There shall be no order as to costs. Miscellaneous petitions, if any, pending in this revision shall stand closed.