Allowed

M. Jitendra v. Smt a. Rajashree K. Naidu

Telangana HC25 Aug 2011SA/545/2007

Case brief

AI extract

What is this about?

The Second Appeals allowed the landlord's challenge to the First Appellate Court's decree. The Court held that the lease agreement contained a specific termination clause for breach, rendering prior authorities on forfeiture inapplicable. The separate amenities agreement was upheld based on admissions. The tenant was directed to vacate.

What did the court decide?

The findings of the First Appellate Court are set aside; the Second Appeals succeed and are allowed; the tenant is directed to vacate the premises and hand over possession within two months.

M. Jitendra Vs Smt a. Rajashree K. Naidu — Telangana HC (2011) — LawSathi Research

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*HON’BLE SRI JUSTICE R.KANTHA RAO

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+ S.A.No. 544 of 2007

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+ S.A.No. 545 of 2007

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% Date: 25.08.2011

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Between:

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# Jitendera …Appellant And

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$ Smt.A.Rajashree K.Naidu

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…Respondent

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! Counsel for the appellant : Sri MVS Suresh Kumar

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^ Counsel for respondent : Sri D.Ramalinga Swamy

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< GIST:

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>HEAD NOTE:

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? Cases referred:

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[1] AIR 1969 Rajasthan 264(V.56 C 48) 2 AIR 1977 Patna 208 3 AIR 1989 SC 1510(1)

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THE HON’BLE MR JUSTICE R. KANTHA RAO

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S.A.No. 544 of 2007 AND S.A.No. 545 of 2007

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Date:25.08.2011

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Between: M.Jitendera …Appellant And Smt.A.Rajashree K.Naidu …Respondent

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THE HON’BLE MR JUSTICE R. KANTHA RAO

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S.A.No. 544 of 2007 AND S.A.No. 545 of 2007

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COMMON JUDGMENT:

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The plaintiff in O.S.No.1052 of 2003 filed both the second appeals. S.A.No.544 of 2007 is filed against the decree and judgment, dated 06.11.2006 by the III Additional Chief Judge, City Civil Court, Hyderabad in A.S.No. 248 of 2005. Whereas, S.A.No.545 of 2007 is filed against the decree and judgment, dated 06.11.2006 passed by the III Additional Chief Judge, City Civil Court, Hyderabad in A.S.No. 535 of 2005 (cross appeal).

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2. I have heard Sri M.V.S. Suresh Kumar, learned counsel appearing for the appellant and Sri D.Ramalinga Swamy, learned counsel appearing for the respondent.

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3. For the sake of convenience, the parties will be referred to as “the plaintiff and the defendant”.

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4. The brief facts necessary for considering the appeals may be stated as follows:

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The plaintiff instituted the suit for recovery of possession

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of the schedule mentioned premises, for arrears of rent, damages and maintenance charges. Admittedly, the plaintiff is the owner of the premises bearing No.16-11-19/18/1, known as ‘Appaji Complex’ with a built up area of 500 square feet below the staircase at Tejnivas Compound, Saleem Nagar Colony, Malakpet, Hyderabad. He leased out the said premises to the defendant on a monthly rent of Rs.2,000/- under a registered lease deed, dated 13.06.2001. The plaintiff also received an amount of Rs.1,00,000/on the date of lease deed as deposit. These facts are also not in dispute.

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5. However, according to the plaintiff, apart from the rent of Rs.2,000/-, the defendant agreed under a separate agreement executed on the same date to pay further sum of Rs.2,000/- for amenities provided. This fact is disputed by the defendant. According to her, she is only liable to pay an amount of Rs.2,000/and no further amount towards amenities. According to the plaintiff, the defendant committed default in payment of rent as well as amenities and therefore got issued a legal notice dated 02.03.2002 to the defendant terminating the tenancy with effect from 31.03.2002. The tenancy as per the lease deed is for a period of 10 years from 13.06.2001. As per Clause 13 of the lease deed the plaintiff can to terminate the tenancy during its currency whenever breach of terms and conditions of lease is committed by the defendant. The contention of the plaintiff is that since the defendant committed default in payment of rent as well as amount relating to amenities which was agreed under separate agreement, he can seek the eviction of the defendant.

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6. The learned trial Court held that as no action was taken

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by the plaintiff till the date of issuance of legal notice from 03.03.2002 even though according to the plaintiff there was default on the part of the defendant even from the inception of the date of lease agreement, the plaintiff is not entitled to terminate the tenancy. The learned trial Court, therefore was of the view that it is not possible to believe that the plaintiff waited for a period of 8 months without taking any action despite the default committed by the defendant. The learned first appellate Court concurred with the finding of the learned trial Court on this aspect.

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7. The other question arose for consideration before the learned trial Court was whether the defendant is liable to pay Rs.2,000/- towards rent as well as further sum of Rs.2,000/towards amenities as per the lease agreement. On this issue, the learned trial Court took into consideration the plea taken by the defendant in her written statement which is to the effect that on the plaintiff’s failure to provide amenities as mentioned in separate agreement dated 13.06.2001, she is entitled to dismantle the fixtures and take them away at the time when the premises is vacated. The learned trial Court took into consideration that the same fact was also mentioned in the affidavit filed in the course of chief-examination of the defendant. The defendant pleaded that there was no separate agreement and Ex.A-2 which was filed by the plaintiff is manipulated by him. The learned trial Court further took into consideration the fact namely that the defendant sent rent for the months of February and March under Exs.B-8 and B-9 money order receipts and Exs.B-16 and B-17 the acknowledgements. Under the aforesaid two money order receipts, the defendant sent rent of Rs.3810/- each time

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mentioning therein that the amount was sent after deducting the money order charges. Basing on the said evidence and also taking into account the admissions made by the defendant in her written statement as well as in her chief-examination affidavit, the learned trial Court concluded that the defendant is liable to pay an amount of Rs.2,000/- towards rent and also a further sum of Rs.2,000/- towards amenities and maintenance charges. The learned first appellate Court however reversed the finding on the ground that when Ex.A-1 lease deed is registered, Ex.A-2 the separate agreement also ought to have been a registered document and the document is not valid for want of registration. The learned first appellate Court also further held that there is no independent evidence adduced by the plaintiff in proof that he provided fixtures and fittings to the premises and therefore the trial Court ought not to have acted upon Ex.A-2. The learned first appellate Court further took the view that there was no signature of the defendant on the third page of the agreement and therefore the transaction cannot said to be completed.

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8. The second appeals are admitted by this Court on the following substantial questions of law which were formulated as under:

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i) Whether the first appellate Court recorded its findings contrary to the evidence on record and also contrary to the terms and conditions mentioned in Exs.A-1 and A-2 and thereby its findings are perverse and this Court can interfere with the said findings and set aside them in this second appeal?

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ii) Whether it requires to be noticed that Ex.A-2

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agreement was also executed on the same day when Ex.A-1 registered lease agreement was executed i.e. on 13.06.2011?

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iii) Whether the contents of Ex.A-2 show that apart from Ex.A-1 the parties have mutually agreed upon certain other terms and conditions in respect of furnitures, fittings and for the said purpose Ex.A-2 a separate agreement was executed.

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9. It is clearly mentioned in Clause 1 of Ex.A-2 that the defendant besides the usual monthly rent of Rs.2,000/- agreed to pay Rs.2,000/- towards hire and user charges of furniture, fixtures and fittings provided in the premises. Clause 2 shows that the defendant on the same day deposited a sum of Rs.1,00,000/- with the plaintiff and it is for the purpose of ensuring the compliance of certain terms and conditions of lease and that the amount shall not carry any interest and it is liable to be refunded immediately at the time the second party vacates the demised premises after adjusting the outstanding amount. Clause 13 of Ex.A-1 lease deed reads as under:

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“If the rent or charges hereby reserved shall be in arrears and unpaid for more than three months after becoming payable for violation or non-performance of any of the covenants herein contained, it shall be lawful for the lessor to determine the lease without reference to statutory notice as required in law and take possession of the demised premises without prejudice to the right of action of the lessor in respect of any branches on the part of the lessee with regard to the covenants and conditions herein contained.”

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Since Ex.A-2 is a separate agreement regarding the charges to be paid by the defendant towards user of furniture and fittings, it can be said to be integral part of the main agreement Ex.A-1 and it need not be registered. Even otherwise, when the defendant specifically admitted in her written statement and chiefexamination affidavit about the execution of Ex.A-2 agreement, she cannot at a subsequent stage be permitted to contend that this is a fabricated document brought into existence by the plaintiff. Further in view of the admissions made by the defendant and the evidence relating to payment of rent for the months of February and March, even in the absence of Ex.A-2, it can be said that the plaintiff could be able to establish that there is a separate agreement regarding the furniture and fittings and as rightly contended by the learned counsel appearing for the plaintiff, the finding recorded by the trial Court is contrary to the pleadings and evidence on record and therefore, it can certainly be said to be perverse which is liable to be set aside in this second appeal.

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10. Insofar as the issue of eviction is concerned, the contention of the learned counsel appearing for the defendant is that since an amount of Rs.1,00,000/- is with the plaintiff as deposit which is made by the defendant, in the absence of any condition in the lease deed enabling the plaintiff to re-enter the premises i.e. in the absence of any forfeiture clause, for mere nonpayment of rent when the tenancy is for a period of 10 years, the plaintiff is not entitled to seek recovery of possession of the premises from the defendant on the mere ground that she committed willful default in payment of rent, he relied upon decisions in

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MST. KOTI BAI AND OHTERS v. MST.KASTOORI BAI^[1] and HARI PRASAD TAMOLI v. SMT.INDIRA DEVI^[2] . In the decisions relied on by the learned counsel appearing for the defendant it is held that while ‘forfeiture’ is one of the prescribed modes for the determination of a tenancy, two things are necessary to constitute forfeiture as required under sub-section (g) of Section 111 of Transfer of Property Act. There should be a breach of express condition in the lease which provides for the lessor’s re-entry and the lessor should give a notice in writing to the lessee of his intention to determine the lease. There can thus be no forfeiture within the meaning of Clause (g) of Section 111 of Transfer of Property Act unless both these requirements are fulfilled. The learned counsel appearing for the defendant also relied upon a decision in MODERN HOTEL, GUDUR, REPRESENTED BY M.N. NARAYANAN v. K. RADHAKRISHNAIAH AND OTHER S^[3] wherein it is held that in the absence of forfeiture clause and when the landlord holding big amount on tenant’s account for years against clear statutory bar, the tenant could not be said to be a defaulter and is not liable to be evicted.

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11. In the instant case, the plaintiff did not seek eviction of the defendant basing on the forfeiture clause as provided under Section 111 of the Transfer of Property Act. He sought eviction of the tenant and recovery of possession of the premises on the ground of breach of terms and conditions of lease agreement which provides for termination of lease on occurrence of breach. The decision 3^rd cited rendered by the Apex Court is with reference to the A.P. Buildings (Lease, Rent and Eviction) Control

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Act where there is a specific provision which lays down that the landlord is not entitled to seek eviction of the tenant when the landlord is holding the amount of tenant as deposit.

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12. In the instant case, Ex.A-1 lease agreement provides for eviction of the defendant-tenant when there is breach of terms and conditions of Ex.A-1 lease deed or Ex.A-2 agreement. Clause 13 of the Ex.A-1 in specific terms enables the landlord to terminate the tenancy if the rent or charges remained unpaid for more than three months. Therefore, the decisions relied upon by the learned counsel appearing for the defendant are not applicable to the facts of the present case. Clause 13 of Ex.A-1 lease deed specifically enables the lessor (plaintiff) to determine the lease without reference to statutory notice as required in law and take possession of the demised premises on committing breach of terms of the lease deed by the defendant tenant. Therefore, the finding of the first appellate Court is contrary to the terms and conditions of Exs.A-1and A-2 and also contrary to the evidence on record and is perverse even on the issue of recovery of possession of the premises. The finding therefore can be interfered with in these second appeals and is liable to be set aside.

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13. For what all stated hereinabove, the findings recorded by the first appellate Court i.e. III Additional Chief Judge, City Civil Court, Hyderabad by his common judgment dated 06.11.2006 in A.S.Nos.248 of 2005 and 535 of 2005 are hereby set aside and consequently, both S.A.Nos.544 of 2007 and 545 of 2007 succeed and they are allowed. The defendant-tenant is directed to vacate the premises within two months from the date of this judgment and

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hand over the vacant possession to the plaintiff-landlord. There shall be no order as to costs.

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__________________ Date:25.08.2011 R. KANTHA RAO, J

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Note: L.R. copy to be marked. B/O CCM

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HON’BLE MR JUSTICE R. KANTHA RAO

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S.A.No, 544 of 2007 AND

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S.A.No, 545 of 2007