Allowed

Dr.Prashant K.Ravi v. Mohd. Naimatullah (died)

Telangana HC17 Aug 2012SA/803/2010

Case brief

AI extract

What is this about?

In a second appeal regarding eviction and recovery of possession, the High Court held that hoarding charges form part of the total rent. The Court set aside the first appellate decree which held the rent was only Rs.1,000, restoring the trial court's finding that the total rent was Rs.2,000, thereby establishing the Civil Court's jurisdiction.

What did the court decide?

The Second Appeal is allowed. The judgment of the First Appellate Court is set aside, and the judgment of the Trial Court is restored.

Dr.Prashant K.Ravi Vs Mohd. Naimatullah (died) — Landlord and Tenant | Telangana HC (2012)

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HON’BLE SRI JUSTICE N.R.L. NAGESWARA RAO

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S.A.No.803 of 2010

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J U D G M E N T:

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The Second Appeal is filed by the plaintiff in O.S.No.81 of 2000 on the file of the XIX Junior Civil Judge, City Civil Court, Hyderabad for recovery of possession from the defendant alleging that the defendant is a tenant of the schedule premises from 1960 with an initial rent of Rs.150/- per month and by the year 1999, it was increased to Rs.2,000/per month and the father of the plaintiff was the original owner of the property and after his demise, the plaintiff and other legal heirs have succeeded to the property. The defendant has paid the rent till the end of December, 1998 and as the premises is required for the personal occupation of the plaintiff, therefore, the suit was filed.

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2. After filing of the suit, the first defendant died and the defendants 2 to 4 came on record. The 4^th defendant filed written statement contending that the tenancy was with M/s.Optical Palace which is a registered partnership firm and the rent was only Rs.1,000/- and separately Rs.1,000/- was being paid as hoarding charges of the firm from April, 1998 and therefore, the Civil Court has no jurisdiction. He has also filed R.C.C.No.3 of 2000 was filed by the 4^th respondent and the amount was fixed at Rs.1,000/- as rent per month and consequently, the Civil Court has no jurisdiction to entertain the suit. It was also further plea that there is no default.

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3. After considering the evidence on record, the trial Court has decreed the suit and aggrieved by the said Judgment, A.S.No.29 of 2001 was preferred by D.4 and XIII Additional Chief Judge(FTC), City Civil Court, Hyderabad, allowed the appeal and aggrieved by the said judgment, the present second appeal is filed. The second appeal has been admitted on the following substantial questions of law.

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a) Whether the rent in respect of premises can be restricted to any particular amount or it is a compendious expression taking in its fold the amount paid by a tenant under

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different categories or heads; and

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b) whether the mere fact that a tenant filed an application under Section 8(5) of the A.P Buildings (lease, rent and eviction) Control Act by itself bring the premises under the purview of that Act?

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4. The learned counsel for the appellant contends that having held all of the issues in favour of the plaintiff, the Court below erred in holding that the rent was only Rs.1,000/- and that Rs.1,000/- separately paid as hoarding charges is not part of the rent and consequently, the first appellate court erred in dismissing the suit.

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5. On the other hand, the learned counsel for the respondent contends that though the tenancy has started in 1960 individually in the name of the first defendant and after a period of 15 years the tenancy has been created with the firm M/s.Optical Palace and the rents were being paid by the Optical palace and consequently, the institution of the suit individually against the first defendant is not proper.

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6. Both the Courts, on a question of fact, have found that the tenancy is with the individual. It is true that the rents are being paid by the Optical Palace. On reading of Ex.A.1-lease deed clearly goes to show that the premises was given on lease for the purpose of running the business by the first defendant and it may be any business which he may run and evidently when he is running such a business if the amount is paid from that business it does not mean that a contract for tenancy is created with the business firm which was being run by the first defendant. Furthermore, the 4^th defendant is only the legal representative of the first defendant who has come on record. In-fact, when a legal notice was given, the first defendant himself gave a reply under Ex.A.5 whereunder he claimed that the tenancy is individual and not a tenancy of the partnership firm. That being so, the 4^th defendant being the legal representative, cannot go beyond the pleading of the original tenancy and raise a different plea and consequently apart from the factual finding given by the lower Court, the legal bar also does not entitle him to raise such a plea.

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7. The question is whether the rent is Rs.1,000/- or Rs.2,000/-.

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8. It is not in dispute that originally the rent was for the premises and in the year 1998, the rent was enhanced according to the plaintiff to Rs.2,000/-. A sum of Rs.1,000/- is agreed to be paid for hoarding charges to the business of the firm on the third floor of the premises owned by the plaintiff family. The lower appellate court has differentiated this amount and found it is not part of the rent. In this connection, a decision reported in M/s Heerachand Porrnamchand v. M/s.Kanchan Cycle Trading Co^[1] was relied on by the counsel for the appellant in the first appellate Court, but the Court below was not inclined to apply the same to the facts of this case accepting with the principle. In the above

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decision it was held as follows:

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“5. On a close reading of Section 105 of the Transfer of Property Act, it is clear that the lease is a right to enjoy the property for consideration of the price of money or any service or any other thing of value to be rendered periodically and the consideration is called the rent. Therefore, from the definition of rent as contained in Section 105 of the Transfer of Property Act, it is clear that the rent is the consideration which a tenant has agreed to pay to the landlord for the beneficial use of the demised premises. It is the intention of the parties in regard to the payment of consideration that matters. In the instant case, the intention of the parties is that the tenant agreed to pay a rent of Rs.900/- and also a further sum of Rs.300/towards charges for amenities. The intention is that a total amount of Rs.1200/- is payable for the letting out the suit premises to the tenant. Both the sums form an integral part of the contract between the parties. If the tenant refused to pay at the inception of the lease, the charges for amenities, the landlord would not have agreed to let out the premises to the tenant. The rent that is agreed, as per the contention raised by the landlord himself inclusive of amenities is Rs.1200/-“

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9. Now, the question is whether the hoarding is a part of amenity for the enjoyment of the premises let out to the tenant. If it is a part of amenity provided to the tenant, any amount that has been paid to the landlord will form part of the rent as per the decision referred to above. Even if the hoarding is to be on the second floor of the building, still the said hoarding is for the beneficial enjoyment and business of the tenant and but for the business he has been running as a tenant of the premises, the hoarding would not have been necessitated. Therefore, the amenity, which has been provided by separate clause of rent, cannot be differentiated form the total rent and consequently the lower Court should not have ignored the above judgment. If it is not for the purpose of the beneficial business of the tenant, there is no reason to have a hoarding on the premises. Without business, a hoarding will be useless. Therefore, the hoarding is for the part of the business, which is being run by the tenant in the premises and whatever amount is paid by him can

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only be taken as for the enjoyment of the total premises that is taken on lease. Therefore, I hold that in view of the above decision, the total rent has to be taken as Rs.2,000/- per month and that being so, the jurisdiction of the civil Court is not barred and the judgment of the first appellate Court is erroneous and consequently, the judgment of the first appellate Court is set aside and the judgment of the trial Court is restored.

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10. Accordingly, the Second Appeal is allowed. No costs. Miscellaneous petitions, if any, pending in this Second Appeal shall stand closed.

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_________________________________ JUSTICE N.R.L. NAGESWARA RAO

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17.08.2012 vjl

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[1] 1990(1) A.L.T 315

Dr.Prashant K.Ravi v. Mohd. Naimatullah (died)

Case brief

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Dr.Prashant K.Ravi v. Mohd. Naimatullah (died)

Case brief

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