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2017 DIGILAW 1209 (MP)

Senior Divisional Manager v. Laxman Rao Phalke

2017-11-26

VIVEK AGARWAL

body2017
ORDER 1. This first appeal has been filed by the defendants/tenants/appellants under the provisions of section 96 of the Code of Civil Procedure being aggrieved by the judgment and decree dated 28.9.2006 passed by the Court of IXth Additional District Judge (Fast Track Court), Gwalior in Civil Suit No.46-A/2006, which was instituted on 20.9.2005 for the purpose of seeking eviction of the tenant from the leased premises and also for recovery of arrears of rent. 2. It is contention of the appellants that prior to filing of the aforesaid suit, suit premises was already vacated on 30.11.2004, as has been admitted by the plaintiff's witness Shri Vijay Singh Rao Falke (PW1) in paras 17 and 18 of his cross-examination. He has admitted that on 30.11.2004 the suit property was vacated by the Life Insurance Corporation but he did not accept the keys of the vacated premises as there was some waste material in the premises and premises vacated was not in the same condition in which it was obtained by the lessee. It has also come on record in the form of admission in para 18 of the cross examination of the plaintiff witness Shri Vijay Singh Rao Falke (PW1) that on 1.12.2004, Life Insurance Corporation of India had given notice to obtain possession but he had given reply to said notice. It has also come in the cross-examination that after vacation of the leased premises, no expert report was obtained as to the extent of the damages. 3. It is also an admitted position as is apparent from the perusal of the suit that the suit was filed after ten months of the vacation of the leased premises but no relief was claimed by the plaintiff in the form of damages in the said suit and only relief which was claimed was for vacation of the leased premises and payment of arrears of rent for the intervening period. It has also come on record that plaintiff had earlier filed another suit seeking decree against the present appellants that they be stopped from vacating the suit premises and that suit was dismissed. 4. It has also come on record that plaintiff had earlier filed another suit seeking decree against the present appellants that they be stopped from vacating the suit premises and that suit was dismissed. 4. In view of such facts on record, learned counsel for the appellants submits that the judgment and decree passed by the trial Court to the extent of allowing the suit and directing the appellants to pay rent w.e.f. 1.12.2004 to 31.8.2005 along with notice expenses of Rs.500/-, thus totalling to Rs.26,996/- has not been decided properly, inasmuch as no damages could have been awarded in the form of rent after vacation of the leased premises specially when it has come on record that the landlord had refused to accept vacant possession of the leased premises on its vacation on 30.11.2004 or 1.12.2004. 5. Learned counsel for the respondent-landlord on the other hand submits that since it is an admitted position that there were damages and micro room was not restored to its original shape and there were certain damages in the property, as has been revealed by the Commissioner in his report, therefore, the trial Court has rightly awarded the rent from 1.12.2004 to 31.8.2005. 6. In fact, trial Court had framed six issues in the case, namely; as per the provisions of lease deed whether defendants were required to restore leased premises in favour of the plaintiff-landlord in the same condition in which it was leased out and this issue has been decided in affirmative. Second issue was whether defendants had not handed over the possession of the suit premises to the landlord in time, this issue has been decided in negative but it has been mentioned that repairs were not carried out. Third issue was as to whether the plaintiff is entitled to receive arrears of rent from the defendants and this issue has been decided in affirmative and it has been held that tenant is liable to be pay rent w.e.f. 1.12.2004 to 31.8.2005. Fourth issue in fact is clubbed with third issue and fifth issue was whether the defendants had handed over possession of the suit premises to the plaintiff on 30.11.2004 and this issue has been decided in negative. 7. For the purpose of the present appeal, issues No.2, 3 and 5 are of substance and they are to be dealt with, inasmuch as there is no dispute regarding other issues. 7. For the purpose of the present appeal, issues No.2, 3 and 5 are of substance and they are to be dealt with, inasmuch as there is no dispute regarding other issues. 8. As far as issue No.2 is concerned, there was no prayer for claiming any compensation for the damages to the leased property and since no issue was framed nor any evidence was led as to the extent of damages and the cost to be incurred on landlord in rectification of the said damages, this issue has been wrongly decided by the trial Court holding that repairs were not carried out. Since there was no element of repairs involved in the issue No.2, that issue could not have been decided by adding that repairs were not carried out. 9. Similarly when there is specific admission of the landlord that they had not taken possession of the vacant suit premises on 30.11.2004 and after receiving the notice on 1.12.2004, issue No.5 that vacant possession of the suit premises was not handed over to the landlord has been wrongly decided by the trial Court. In face, once this admission has come on record, then it will be deemed that possession was handed over but it was not accepted by the landlord and for that no infirmity can be attributed to the defendants (Appellants). Therefore, in the opinion of this Court, trial Court has failed to rightly appreciate the evidence while deciding the issue No.5. 10. Issue No.4 flows from the issue No.5. Since issue No.5 has been incorrectly decided inasmuch as there is admission in the hands of PW1 in para 17 of his cross-examination that he had not accepted the possession of the vacant premises, issues No.3 and 4 as a consequence have wrongly been decided, inasmuch as once the premises was vacated and possession was offered to be handed over to the landlord and the landlord has refused to accept the possession, then it was not open to the landlord to claim the rent after the date when he has refused to accept the possession of the vacant leased premises. 11. In view of the aforesaid discussion and the overwhelming evidence on record, this Court is of the opinion that the suit has been wrongly decreed to cause unlawful gain in favour of the landlord. 11. In view of the aforesaid discussion and the overwhelming evidence on record, this Court is of the opinion that the suit has been wrongly decreed to cause unlawful gain in favour of the landlord. In fact if the landlord has any grievance in regard to violation of the condition No.7 of the lease deed, then it was incumbent upon the landlord to have accepted the possession of the vacated suit property on 30.11.2004 or 1.12.2004 and should have prepared Panchnama in regard to the damage caused to the property and thereafter, should have made pleadings in regard to its claim for such damage, which landlord would have been required to incur in restoration of the leased property to its earlier position. There is no evidence in this regard nor any pleadings have been made in the suit, therefore, after the date of vacation and refusal of the plaintiff to accept the possession, no rent could have been awarded against the defendant. Thus, the impugned judgment and decree passed by the trial Court is set aside and the appeal is allowed. Parties to bear their own costs.