SA/889/2001 of MOTA HANUMAIAH Vs SAYANNA AND ANOTHER on 6 November 2001

Judgment:

The unsuccessful defendant in the trial Court as well as thelower appellate Court has filed this Second Appeal against thejudgment and decree dated 7-7-2011 passed in AS No.223/2007 onthe file of II Additional District Judge, Vijayawada, whereunder learnedJudge dismissed the appeal confirming the judgment and decree dt.28-9-2007 passed in OS No.2094/2004 on the file of Principal JuniorCivil Judge, Vijayawada, decreeing the suit filed by the respondentNo.1/plaintiff seeking a direction to the defendant to vacate and deliver the plaint schedule premises and to pay damages atRs.12,000/- per month to be paid by the defendant to the plaintiff fromthe date of suit till the eviction of the defendant form the plaint schedulepremises.

During the pendency of the appeal before the lower appellatecourt, the first plaintiff who filed the suit died and his legalrepresentatives were brought on record as respondents 2 and 3.

For the sake of convenience, the parties herein willhereinafter referred to as arrayed in the trial court.

The first plaintiff instituted the above suit for eviction and fordamages at Rs.12,000/- per month, stating that he is the owner of thebuilding bearing D.No.27-21-6 situated in Ayyadevara Kaleswara Rao Road, Vijayawada; he let out a portion to the defendant and now themonthly is Rs.3795/-; the defendant without the consent of theplaintiff made some alterations in the building; as the plaintiff wanted tooccupy the said building for his personal occupation, he issued a quitnotice dt. 3-7-2003; the plaintiff issued another notice dt. 9-12-2003terminating the tenancy by 31-12-2003; the defendant sent a reply dt.26-12-2003 requesting time for vacating the premises but failed to vacate the premises; the plaintiff got issued another quit notice dt. 31-5-2004 demanding the defendant to deliver vacant possession by 1-6-2004; the defendant having received the notice gave reply on 12-5-2004 refusing to vacate the plaint schedule premises; the presentmonthly rent of the premises is more than Rs.12000/- and theneighbour of the defendant is paying more than Rs.12000/- to him,which is relatively small premises.

The appellant/defendant filed a written statement stating thatthe plaintiff accepted lease for 33 years; on accepting the lease by theplaintiff, the defendant spent huge amount and repaired the oldbuilding in the year 1980; the lease deeds were executed betweenthe plaintiff and the defendant from time to time and the last one wason 7-7-1995; that as per the understanding between the plaintiff andthe defendant, the lease should be extended for a further period of 9years from 1-6-2004 to 10-5-2013 by enhancing the rent at 20% forevery three years; the plaintiff has no manner of right to terminate thetenancy before 31-5-2013; that even after giving reply notice dt. 26-12-2003 by the defendant, the plaintiff requested the defendant toenhance the rent at the rate of 30% for every 3 years from 1-6-2004 to31-5-2013 instead of 20% as agreed earlier; though it is excessive thedefendant accepted the plaintiff’s proposal with a view to avoidlitigation; the plaintiff having accepted the same again got issued another legal notice with all false and baseless contentions; theplaintiff is not entitled to evict the defendant prior to 31-5-2013; the quitnotice issued by the plaintiff is not in accordance with the provisions ofTransfer of Property Act; the suit is bad for mis-joinder and non-joinder of proper parties as the suit is not filed properly against properperson; the court fee by the plaintiff is not correct and the plaintiff hasnot properly valued his claim.

On the above pleadings, the trial court framed the followingissues for trial:

1. Whether the quit notice is valid?

2. Whether there is any understanding for continuation of tenancytill 31-5-2013 as claimed by the defendant?till 31-5-2013 as claimed by the defendant?

3. Whether the suit is bad for mis-joinder or non-joinder of properparties?parties?

4. Whether the plaintiff is entitled for eviction of the defendant andrecovery of vacant possession as prayed?recovery of vacant possession as prayed?

5. Whether the plaintiff is entitled to damages @ Rs.12,000/- permonth as prayed?month as prayed?

6. To what relief?

Before the trial court, on behalf of the plaintiffs, P.Ws.1 and 2were examined and Exs.A-1 to A-11 were marked. On behalf of thedefendant, D.Ws.1 to 4 were examined and Exs.B-1 to B-3 weremarked. Ex.D-1 was marked through D.W.4.

The trial court, on appreciation of the oral and documentaryevidence, on issue Nos.1,2 and 4 held that the quit notice is valid,which is terminable by 15 days notice; mere acceptance of rent didnot by itself constitute an of waiver unless there is an intention to treat the lease as subsisting and in view of the law declared by theSupreme Court in SARUP SINGH GUPTA V. S. JAGDISH SINGH[[1]]the plaintiff validly terminated the lease and he is entitled for eviction ofthe defendant from the suit schedule premises and for vacant possession. On issue No.5, the trial court held that the 30% enhancement of lease amount for every three years would bereasonable and the plaintiff is entitled to the said amount as damagesfrom 1-6-2004 and answered the issue No.5 in favour of the plaintiff. Issue No.3 was answered in favour of the plaintiff holding that the suitis not bad for non-impleadment of P.Venkata Ratnam, a partner of thedefendant and holding so decreed the suit. On appeal being filed bythe defendant, the lower appellate court dismissed the appealconfirming the judgment and decree of the trial court.

Sri D. Prakash Reddy, learned Senior Counsel appearing forthe appellant/defendant contends that even after termination of thelease under Ex.A-8, once the plaintiff accepted rents and continuouslyreceiving rents, he has waived the quit notice, and the tenancy isrenewed from time to time notice issued under Section 106 of theTransfer of Property Act is not a valid notice terminating the tenancy ofthe defendant.

Both the contentions were considered by the trial court aswell as the lower appellate court and rejected the same.

It is now fairly well settled that mere acceptance of rent didnot by itself constitute an act of the nature envisaged by Section 113 ofthe Transfer of Property Act, and even after accepting the rent, if thelandlord has unreasonably has not taken any steps to get the tenantevicted for quite a long time, it amounts to waiver.

Admittedly, in the present case, the suit was instituted on 22-6-2004 ie., after expiry of the notice period with effect from 31-5-2004demanding the tenant to vacate the premises by 1-6-2004. Therefore,receiving of rents is in consequential and will not amount toexpress waiver of termination of tenancy.

The concurrent findings recorded by both the courts are based on appreciation of evidence, and cogent reasons wereassigned for coming to such conclusion, which do not suffer from anymanifest illegality. Therefore, I do not find any question of law, muchless substantial question of law arises for consideration in the secondappeal.

The second appeal is accordingly dismissed at theadmission stage.

Issues

Since the appellant/defendant/tenant is in possession ofthe suit schedule property for last 30 years and is carrying onbusiness in the said premises, time is granted till 31[st] March, 2012 foreviction of the appellant/defendant/tenant subject to condition of hispaying to the respondent/plaintiff/landlord arrears of rent as awardedby the trial court ie., at Rs.3795/- with 30% increase for every threeyears within three (3) months from today; by giving undertaking that hewould vacate and deliver the vacant possession of the suit schedulepremises to the respondent/plaintiff/landlord by 1-4-2012; andalso paying monthly rent at the enhanced rate till 31-3-2012 on orbefore 10[th] of every succeeding month.

_________________ A.GOPAL

REDDY, J.

[1](2006) 4 SCC 205