Partly allowed

Papalal v. R.Sandya

Telangana HC27 Jul 2012SA/532/2012

Case brief

AI extract

What is this about?

Second appeal against eviction decree and mesne profits awarded by a lower civil court. Court partially allows appeal, confirms eviction order but reduces mesne profits and directs tenant to pay increased rent of Rs.1,050/- per month till 01.03.2005 and Rs.3,000/- from 01.03.2005 with interest.

What did the court decide?

tenant directed to pay Rs.1,050/- per month till 01.03.2005 and Rs.3,000/- from 01.03.2005 with 6% interest; six months to deliver property; eviction confirmed

Papalal Vs R.Sandya — Property and Title | Telangana HC (2012)

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THE HON’BLE SRI JUSTICE N.R.L.NAGESWARA RAO SECOND APPEAL No.532 OF 2012

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JUDGMENT:-

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The unsuccessful defendant in O.S.No.2703 of 2003 on the file of the Court of III Junior Civil Judge, City Civil Court, Hyderabad, is the appellant herein.

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2. The suit was one filed for eviction of the appellant-defendant.

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3. According to the case of the plaintiff, the defendant was a tenant in the schedule premises originally on a monthly rent of Rs.500/- per month and thereafter R.C.No.141 of 1999 on the file of the III Additional Rent Control Court, Hyderabad, was instituted for eviction of the tenant on the ground of bona fide requirement and also on the ground of arrears of rent. It was also further pleaded that while the said RC was pending, an agreement has been entered into between the parties on 25.02.2002 under Ex.A.2 to the effect that the rent shall be enhanced from Rs.500/- to Rs.1,050/- per month and the deposit also should be enhanced and there shall be a periodical increase of 10% of rent for every three years and the period of tenancy is for three years and both parties also further agreed to have regular rental deed on 01.03.2002 and report to the Rent Controller. The Rent Control application has been dismissed for want for proof of bona fide requirement and as against that, RA No.419 of 2002 was filed by the plaintiff and that was withdrawn on 17.09.2004 as the present suit has been filed for eviction of the appellant.

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4. The appellant did not seriously dispute about the jural relation of landlord and tenant and also the original rent of Rs.500/- per month. The effort of the appellant is that the civil Court has no jurisdiction since it was found by the Rent Control Court (RCC) that Ex.A.2 agreement was not acted upon the parties and consequently the rent is

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only Rs.500/- per month and the jurisdiction of the civil Court is ousted.

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5. The trial Court after considering the rival contentions ordered eviction and also granted decree for arrears of rent and also future mesne profits at the rate of Rs.6,000/- per month from the date of institution of the suit till the date of delivery. As against the said judgment, an appeal was preferred in A.S.No.175 of 2006 on the file of the Motor Vehicle Accident Claims Tribunal-cum-XIV Additional Chief Judge (Fast Track Court), Hyderabad, and the same was dismissed. Aggrieved by the same, the present Second Appeal is filed.

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6. After hearing parties, the following substantial questions of law are framed:

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1) Whether the Civil Court has no jurisdiction for the reason that Ex.A.2 agreement has not being acted upon?

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2) Whether the grant of the mesne profits by the lower court is based on proper appreciation of the evidence and ignoring the terms in Ex.A.2 and the conduct of the parties?

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7. POINTS:

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The learned counsel for the appellant has claimed that the substantial question of law involved in this case is since a finding has been recorded in RC No.141 of 1999 to the effect that Ex.A.2 agreement, which was marked as Ex.R.13 in the above RC was not acted upon, the plaintiff is bound by the said finding or observation and consequently cannot fall back on Ex.A.2 and the civil Court cannot get jurisdiction.

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8. It is to be noted if the contention of the appellant is to be accepted, then undoubtedly the rent being only Rs.500/- per month by the date of filing the suit, the civil Court does not get jurisdiction. If it is above Rs.1,000/- the jurisdiction of the civil court cannot be excluded.

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The decision on the contention of the appellant is mostly dependent on the enforceability of Ex.A.2 agreement, which is admitted by both the parties. In fact, the term in Ex.A.2 with regard to the enhancement of the rent from Rs.500/- to Rs.1,050/- was not disputed. The appellant was depositing the rent in the Rent Control Court at the rate for Rs.Rs.500/- per month and the Rent Controller has permitted to deposit at the same rate without prejudice to the contention of the land lord.

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9. The question is whether a tenancy is created under Ex.A.2 and merely because the registered document is not executed with regard to the period of lease of three years, the parties can be allowed to ignore the same and can be restored to the original position of the agreement. It is to be noted the law does not require every tenancy to be in writing, it can be oral also. The period of tenancy is also determined under section 106 of the Transfer of Property Act (for short, ‘the Act’) subject to the contract to the contrary between the parties. It is to be noted that when a compromise memo was filed before the Court when the RC No.141 of 1999 is pending, it can only be taken as an information to the court about the agreement between the parties and the rigor of non-registration of a fresh agreement for a period three years does not arise. However, it is also to be noted that Ex.A.2 by itself is not a fresh lease deed, which has come into existence between the parties. When parties to the litigation have entered into an understanding and filed a document before the court, which was taken on file and the truthfulness of the contents therein are not disputed, the plea of estoppel applies against both parties to the proceedings and they cannot avoid the same. The observation of the Rent Controller that Ex.R-13 which is Ex.A-2, was not acted upon cannot be taken as a finding of fact in the Rent Control proceedings with regard to the enhancement of the rent. It is a cryptic observation without giving any reasons as to how the Court considered the agreement was not acted

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upon.

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10. In order to apply the principle of res judicta, it is sought to be canvassed by the learned counsel for the appellant that it is for the Court to give a finding on the evidence available as to how the agreement has become unenforceable and as to for what reason it becomes invalid and as to who has committed breach of enforcement of the clauses. Merely because the appellant has not paid the rent as agreed under Ex.A.2, it cannot be stated as an agreement which was not acted upon. It is an obligation undertaken by him and consequently it cannot be said that it was not acted upon. So also the non registration of a regular lease deed does not make the Ex.A.2 unenforceable. Consequently, it cannot be said that the rent was only Rs.500/- per month and Ex.A.2 has to be ignored as contended by the learned counsel for the appellant. When parties give a specific undertaking and enters into a specific understanding with regard to the quantum of the lease and also the period of the lease, there are mutual obligations and the land lord and tenant have to oblige and enforce them. Therefore, in view of the above circumstances, neither the principle of res judica nor the non enforceability of Ex.A.2 not being acted upon does not arise. A reading of Ex.A.2, if taken into consideration, it gives a right to the land lord to claim rent at the Rs.1,050/-per month and a right to the tenant to continue in the premises for a period of three years. Both these clauses have to be enforced mutually and none of them can ignore the binding nature of the same.

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11. The learned counsel for the appellant has argued that if the period of lease is to be taken as three years while accepting Ex.A-2, the suit is premature and it cannot be entertained.

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12. The law is now well settled merely because a suit is filed premature, it need not meet with the fate of dismissal and the court has

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to grant the remedy to the parties as per the obligations between them. Therefore, in this case, when the rent is Rs.1,050/- per month and when a jurisdiction of the civil court is not excluded, then the only question is whether a valid notice of termination of tenancy has been given. It is not in doubt that merely because a shorter period of time for termination was given in the notice under Section 106 of the Act, the suit was defeated and the amended provisions of 106 of the Act clearly envisages the same. If at all the appellant is entitled to the benefit under the Ex.A.2, the period of lease shall be continued for a period of three years w.e.f. 01.03.2002 on the basis of payment of rent of Rs.1,050/- per month. In this case, the suit was instituted on 28.04.2003. By that date the occupation of the appellant cannot be treated as unlawful and only after 01.03.2005 the occupation of the appellant becomes unlawful and the termination of the tenancy can be taken to be effective only after 01.03.2005 taking into the promises and the representations made under Ex.A.2. Consequently, the order of the Court below in granting mesne profits at the rate of Rs.6,000/- from April, 2004 cannot be sustained and the plaintiff will be entitled only to the rent of Rs.1,050/- per month till the end of 01.03.2005.

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13. The learned counsel for the appellant also contended that fixing of the mesne profits at Rs.6,000/- basing on the document which were marked as ExsA.1 to A.23 is based on no evidence and when the rent was only Rs.1,050/- per month a sudden increase of such a higher rate is penal for the tenant who has been in possession for a long time.

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14. It is true that the documents were sought to be filed before the appellate court as additional evidence and the Court has received the same as additional evidence in order to support the finding with regard to the mesne profits. Evidently, no evidence was taken by the appellate court with reference to those documents. No oral evidence was taken by the appellate Court except marking the documents.

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Even if the documents are ignored, the court can take judicial notice of the fact of increase of the rent from time to time and also the location of the premises. In fact, when under Ex.A.2 what was agreed by the plaintiff is only 10% of the increase of the rent. Even for yearly it cannot be taken as a sum of Rs.6,000/- as mense profits to be arrived at by the courts below. Therefore, I find that the ends of justice would meet if the mesne profits granted by the Court below is restricted to Rs.3,000/- w.e.f. 01.03.2005.

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15. Therefore, in view of the above circumstances, the Second Appeal is partly allowed and the order of eviction is confirmed, but, however, the appellant is directed to pay a rent of Rs.1,050/- per month till 01.03.2005 from the date of suit and at the rate of Rs.3,000/- from 01.03.2005 with interest at 6% till the date of delivery of property. The appellant is granted six months time to deliver the property. No costs. Miscellaneous Petitions, if any, pending in this appeal shall stand closed.

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_______________________________ JUSTICE N.R.L. NAGESWARA RAO

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Date:27.07.2012 INL

Papalal v. R.Sandya

Case brief

What is this about?

What did the court decide?

Papalal v. R.Sandya

Case brief

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