THE HON'BLE JUSTICE Dr. V.R.K.KRUPA SAGAR
SECOND APPEAL No.452 of 2015
JUDGMENT:
This second appeal under Section 100 C.P.C. is filed by tenants as against landlords. The respondents herein are the landlords. These respondents as plaintiffs filed O.S.No.1303 of 2009 with the following prayer:
"a) For eviction of the defendants from the plaint schedule property and to deliver vacant possession of the plaint schedule property to the plaintiffs;
b) Directing the defendants to pay arrears of damages of Rs.90,000/- (Rupees ninety thousand only) with interest @ 24% p.a. for the month of October 2009;
c) Directing the defendant to pay future damages @ Rs.90,000/- (Rupees ninety thousand only) from the date of the suit to till he vacates the schedule property;
d) For costs of the suit; and
e) For such other relief or reliefs as the Honourable Court
deem fit and proper in the interest of justice and equity."
2. The appellants as defendants filed their written statement. Learned trial Court settled the following issues for trial:
"1. Whether the defendants had spent huge amount for construction of three rooms shed and four rooms in 2 Dr. VRKS, J S.A.No.452 of 2015 first floor on the existing ground floor on the assurance and understanding between 1st plaintiff and defendant for running the society institutions and that the plaintiffs have no right to ask the defendant to vacate from the plaint schedule property as pleaded at para 5 of written statement?
2. Whether the defendants have been paying rent regularly without any default as pleaded at para 9 of written statement is true?
3. Whether the quit notice issued U/Sec.106 of T.P. Act is legal and binding on defendant?
4. Whether the plaintiffs are entitled to the suit claim as prayed for?
5. To what relief?"
3. In proof of their respective contentions, plaintiff No.1 gave evidence as PW.1. Defendant No.2, who is Secretary and Correspondent to defendant No.1, gave evidence as DW.1 and the Institutions Administrative Officer testified as DW.2. Earlier to the institution of the suit, there was exchange of notices between parties and they were exhibited on behalf of the plaintiffs as Exs.A.1 and A.2. After due trial, the learned trial Court dismissed the suit with costs. Thereafter, the landlords/plaintiffs preferred first appeal in A.S.No.195 of 2013 3 Dr. VRKS, J S.A.No.452 of 2015 before learned XII Additional District Judge, Vijayawada. The defendants in the suit were the respondents there. Learned first appellate Court framed the following points:
"1. Whether the defendants spent huge amount to construct the additional structures in the schedule premises and to level the schedule land as pleaded? If so, whether defendants are entitled to continue in the schedule premises for ever on that ground?
2. Whether the quit notice issued by plaintiffs under Sec.106 of Transfer of Property Act is valid?
3. Whether the defendants are liable to evict from the schedule premises?
4. Whether plaintiffs are entitled for recovery of Rs.90,000/- as arrears of damage for the month of October 2009?
5. Whether plaintiffs are entitled for damages @ Rs.90,000/- per month from the defendants for the use of plaint schedule property unauthorisedly?
6. Whether there are grounds to interfere with the findings of trial court?
7. What is the result?"
4. After hearing arguments on both sides and after considering the entire record of the trial Court, the learned first 4 Dr. VRKS, J S.A.No.452 of 2015 appellate Court allowed the appeal and set aside the trial Court's judgment and as a consequence, decreed the suit in the following terms:
"Defendants are directed to vacate the suit schedule premises and handover the vacant possession of schedule property to plaintiffs on or before 27.08.2015. If the defendants are not vacated schedule premises and deliver to plaintiffs as directed, plaintiffs are at liberty to approach the court for the said relief by way of filing execution proceedings. Defendants are also directed to pay a sum of Rs.50,000/- as arrears of damages for the month of October 2009 to plaintiffs for use and occupation of suit schedule property unauthorisedly. Defendants are also directed to pay damages @ Rs.50,000/- p.m. to plaintiffs from November 2009 to till the handing over of the vacant possession of schedule property to plaintiffs as they are using the schedule property unauthorisedly. Defendants are directed to pay costs of this litigation through out to plaintiffs while bearing their own costs."
5. The tenants, who suffered a setback in the first appellate Court, felt aggrieved and preferred this second appeal.
6. A learned judge of this Court admitted this second appeal on 16.11.2015 on the following substantial questions of law: 5
Dr. VRKS, J S.A.No.452 of 2015 "1) Whether the lower appellate Court is right in not considering the plea of the defendants that the plaintiffs issued a quit notice under Section 106 of Transfer of Property Act earlier and had withdrawn the same. Therefore, a second quit notice issued by the plaintiffs is invalid?
2) Whether the lower appellate Court is right in recording a finding that second quit notice issued under Section 106 of Transfer of Property Act is valid though not contemplated a second quit notice under the Act?
3) Whether the lower appellate Court is right in assessing the quantum of damages without any basis and without any evidence adduced by the plaintiffs to that effect which is perverse finding?
4) Whether the lower appellate Court is right in not framing points for consideration as required under Order 41 Rule 31 of C.P.C.?
5) Whether the lower appellate Court is right in not recording a finding on the plea of the defendants that they have spent a substantial amount of Rs.10,00,000/- on the construction of class rooms for the students which is liable to be adjusted either under the monthly rent or the plaintiffs have to return the same to the defendants?"
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Dr. VRKS, J S.A.No.452 of 2015
7. Certain facts between parties have never been disputed before the Courts below as well as before this Court and they are noticed now.
8. Building bearing Door No.23-3-1 along with vacant space appurtenant to it in Narravari Street, Satyanarayanapuram, Vijayawada with specific boundaries on all four sides is the property that is owned by plaintiffs/respondents herein and the same was taken on lease by the defendants/appellants herein in the year 1994 on a monthly rent of Rs.3,000/- which came to be enhanced from time to time and by the time the suit was filed in the year 2009 the rent per month was Rs.24,000/-. Tenants have always been paying rent and there are no arrears by the time the suit was filed. The lease between parties is oral. The pleadings and evidence and the submissions made by both sides categorically show that from the time of lease in the year 1994 till the suit the period of lease has not been fixed between parties.
9. Earlier to the institution of the suit, the landlords issued a notice to the tenants and that was exhibited as Ex.A.1. 7
Dr. VRKS, J S.A.No.452 of 2015 Tenants received the notice and issued a reply notice and that was exhibited as Ex.A.2.
10. In Ex.A.1-notice landlords have stated that after lapse of 15 days from the date of receipt of this notice, the tenants shall vacate and surrender vacant possession of the property. It is stated that landlords are not inclined to continue the tenancy of the tenants in the schedule property and therefore, they by this notice terminated the tenancy. The reason for termination of tenancy, as mentioned in the notice, would show that plaintiff No.3/respondent No.3 is a medical graduate and he intended to commence his medical practice in this property. Earlier to this notice, the landlords have been requesting the tenants to vacate the property but the tenants were postponing it.
11. It is based on the above notice and as the tenants did not vacate the premises, the landlords laid the suit and made their averments in the plaint and sought for various reliefs, which are indicated in the earlier paragraphs of this judgment. Since in the written statement the defendants/tenants questioned the bona fides of the landlords in issuing Ex.A.1-notice and since 8 Dr. VRKS, J S.A.No.452 of 2015 they stated that the premises is not useful for medical practice to construct a hospital, they resisted the prayers made in the suit.
12. The pleadings and evidence adduced was considered by the trial Court and trial Court took the view that the landlords though stated about a bona fide requirement for personal use, they failed to adduce any evidence to prove that they bona fidely require it for personal use. It observed, the evidence of PW.1 where during the cross-examination PW.1/plaintiff No.1 stated that the quit notice was issued only because their demand to raise the rent from Rs.24,000/- to Rs.50,000/- was not accepted by the tenants. On that evidence, the learned trial Court stated that the landlords are greedy and they failed to prove bona fide personal requirements and therefore, they have no right to seek eviction of the tenants. Saying so, it dismissed the suit.
13. In the first appeal filed by the landlords, the very same evidence was considered by the first appellate Court and it stated that the judgment of the trial Court was erroneous as it 9 Dr. VRKS, J S.A.No.452 of 2015 went on to consider the quit notice as if the tenancy is governed by the Andhra Pradesh Buildings (Lease, Rent and Eviction) Control Act, 1960 (for short, 'the Rent Control Act'). The first appellate Court stated that oral tenancy is there between parties and the rent is Rs.24,000/- per month, the case is governed by the concept of lease enshrined in the Transfer of Property Act, 1882 (for short, 'the Act'). It then observed that in a quit notice issued under Section 106 of the Act, if the landlords seek for termination of the tenancy that results in termination of the tenancy and there was no need for landlords to prove that they bona fidely required the premises. Saying so, it set aside the trial Court's judgment and granted the prayer for eviction and recovery of possession. The tenants are now in this second appeal and they raised certain contentions.
14. Sri K.G.Krishna Murthy, learned Senior Counsel representing Sri K.Ramamohan, learned counsel appearing for the appellants/tenants, submit that the judgment of the trial Court is supported by appropriate reasons available from the record and the first appellate Court erred in negativing them by 10 Dr. VRKS, J S.A.No.452 of 2015 holding that giving quit notice itself is sufficient to terminate tenancy. According to the learned counsel, unless the bona fide requirements, which are stated in the quit notice, are established by the landlords, tenancy could not be terminated. The other contention raised by the learned Senior Counsel for appellants is that the tenants in their reply notice under Ex.A.2 and also in their written statement and also through the evidence of DWs.1 and 2 contended that they spent lakhs of rupees money in making certain structures in the demised premises and at the beginning of the lease itself plaintiff No.1 agreed that he would not seek for their eviction and therefore, the quit notice issued cannot terminate the tenancy as long as the tenants wish to continue in the property. The further contention of the learned Senior Counsel for appellants is that Ex.A.1 quit notice is invalid. This submission is made in the context of the following facts:
15. Paragraph No.1 in Ex.A.1 is relevant in this regard and therefore, the same is extracted here:
11
Dr. VRKS, J S.A.No.452 of 2015 "My clients issued a notice to No.2 of you on 20.08.2009 terminating the tenancy of the notice schedule property. You got issued a reply dated 02.09.2009 contending that No.1 of you is the tenant and that No.2 of you is not the tenant in your personal capacity. As such my clients hereby canceling the previous notice and issuing the present notice terminating the tenancy."
16. It is on the above material, the learned counsel submits that Ex.A.1 is the second quit notice and is invalid in terms of Section 111(h) read with Section 113 of the Act.
17. As against the above submissions, the learned counsel for respondents submit that the complete erroneous approach adopted by the learned trial Court was set right in the appeal at the hands of the learned first appellate Court and that in a lease governed by the Transfer of Property Act where the lease period is not fixed, the landlords issuing Ex.A.1-notice under Section 106 of the Act validly terminates the tenancy and simply because tenants invested some money and raised certain structures would not make their tenancy a permanent one and would not divest the landlords from the legal remedy for termination of tenancy and eviction of the tenants and recovery 12 Dr. VRKS, J S.A.No.452 of 2015 of possession and learned first appellate Court appropriately dealt with the law and applied it to the established facts on record and reached to appropriate conclusions and therefore, there shall be no interference in this second appeal.
18. The substantial questions of law raised in Point Nos.1 and 2 are now to be dealt with in the light of the above rival submissions.
19. The undisputed evidence available on record where findings on fact were recorded by the trial Court and approved by the first appellate Court do indicate that the tenants when they obtained the lease hold premises commenced High School and subsequently they started a course of Physiotherapy and now a Physiotherapy College is there along with a hospital in the suit schedule property. It is undisputed that when the tenants entered into this premises in the year 1994, there were structures and there was vacant space. At a later point of time, after commencement of tenancy, the tenants, to suit the needs of them for running a college and a hostel, raised certain 13 Dr. VRKS, J S.A.No.452 of 2015 structures by investing their own money. The above facts are not in dispute.
20. Though the tenant is an educational society and though it is running a college and hostel, it has not chosen to obtain any written lease deed from the landlords. Be that as it may. The fact is, the tenancy is oral. It is also undisputed that by the agreed terms on the date of lease, the tenure of the lease was not agreed upon between parties and it was left open. In the context of these facts, it is relevant to notice the legislative mandate in Section 106 of the Act. The said provision is extracted here:
"106. Duration of certain leases in absence of written contract or local usage:- (1) In the absence of a contract or local law or usage to the contrary, a lease of immovable property for agricultural or manufacturing purposes shall be deemed to be a lease from year to year, terminable, on the part of either lessor or lessee, by six months' notice; and a lease of immovable property for any other purpose shall be deemed to be a lease from month to month, terminable, on the part of either lessor or lessee, by fifteen days' notice.14
Dr. VRKS, J S.A.No.452 of 2015 (2) Notwithstanding anything contained in any other law for the time being in force, the period mentioned in sub- section (1) shall commence from the date of receipt of notice.
(3) A notice under sub-section (1) shall not be deemed to be invalid merely because the period mentioned therein falls short of the period specified under that sub-section, where a suit or proceeding is filed after the expiry of the period mentioned in that sub-section.
(4) Every notice under sub-section (1) must be in writing, signed by or on behalf of the person giving it, and either be sent by post to the party who is intended to be bound by it or be tendered or delivered personally to such party, or to one of his family or servants at his residence, or (if such tender or delivery is not practicable) affixed to a conspicuous part of the property.
21. From the above provision, it could be seen that in the absence of written contract or local law or usage the duration of lease is governed by this provision. As per this provision for non-residential premises, the lease is deemed to be month to month terminable by fifteen days' notice. Anything contrary to it is possible if it is provided by a local law or if it is provided by contract between parties or if it is available as per the local usage. It is for the tenants to show that their tenancy is 15 Dr. VRKS, J S.A.No.452 of 2015 governed by a contrary contract or a contrary local law or contrary usage as envisaged by Section 106 of the Act. Throughout this litigation and before this Court the tenants have not chosen to establish their case by bringing it to the notice of any of the Courts about a contrary written contract or contrary local law or a contrary usage. Therefore, the facts at hand are governed by what is provided in Section 106 of the Act. As could be seen from the grounds of appeal, the tenants do admit that Ex.A.1-notice is one that is governed by Section 106 of the Act. Ex.A.1-notice was issued on 07.09.2009 and it was received by tenants on 14.09.2009 which is seen from the opening paragraph of Ex.A.2-reply notice given by the tenants. Thus, according to the landlords, this tenancy stood terminated and the tenants should vacate the premises on or after 29.09.2009. In Shantilal Jain v. Smt. Rekha1, on consideration of Section 106 of the Act, this Court had stated that in cases governed by the Transfer of Property Act concerning leases, the non-existence of any necessity of the 1 2012 (2) ALT 4602012 (2) ALT 460 16 Dr. VRKS, J S.A.No.452 of 2015 premises for the landlords is irrelevant and what is required is valid issuance of quit notice. In that case also the tenants contended about Rs.8,00,000/- pertaining to it lying in deposit with the landlord. In that context, this Court had stated that such an issue stands outside the scope of a suit that was filed on the strength of a quit notice issued under Section 106 of the Act. Nothing contrary is brought to the notice of this Court by the appellants. The learned first appellate Court followed the above ruling and in the light of the said law, it found fault with the observations of the trial Court and it rightly set aside the trial Court's judgment. The contention of the appellants about the invalidity of Ex.A.1-notice is hinged on Section 111(h) and 113 of the Act. They are extracted here:
"111. Determination of lease:- A lease of immoveable property determines-
(a) to (g) .............
(h) on the expiration of a notice to determine the lease, or to quit, or of intention to quit, the property leased, duly given by one party to the other."
113. Waiver of notice to quit:-
A notice given under section 111, clause (h), is waived, with the express or implied consent of the person to whom it is 17 Dr. VRKS, J S.A.No.452 of 2015 given, by any act on the part of the person giving it showing an intention to treat the lease as subsisting.
Illustrations
(a) A, the lessor, gives B, the lessee, notice to quit the property leased. The notice expires. B tenders and A accepts, rent which has become due in respect of the property since the expiration of the notice. The notice is waived.
(b) A, the lessor, gives B, the lessee; notice to quit the property leased. The notice expires, and B remains in possession. A gives to B as lessee a second notice to quit. The first notice is waived."
Illustration (b) to Section 113 of the Act would show that after issuance of first quit notice if the tenant still remains in possession and if the landlord gives a second quit notice the first notice is waived.
22. In the case at hand, earlier to Ex.A.1 first notice to quit was given. It was addressed to defendant No.2, who is representing defendant No.1. The reply from defendant No.2 was that he was not the tenant in his personal capacity, but it was defendant No.1, who is tenant. It was in those circumstances, the landlords have chosen to issue second quit notice, which is Ex.A.1. In Ex.A.1 they have specifically 18 Dr. VRKS, J S.A.No.452 of 2015 mentioned that earlier quit notice is cancelled because of the objection taken by defendant No.2 and they are giving this fresh quit notice. Thus, what the landlords have done is as is available in the above referred illustration. Be it noted, the landlords have not produced the earlier quit notice and have not taken any support from the averments made in the earlier quit notice. Be it also noted, the tenants have not filed the earlier quit notice received by them or the reply given by defendant No.2 to the landlords. They have not stated any particular averment contained in the earlier notice, but not contained in the present Ex.A.1 quit notice, which is sought to be taken advantage by landlords. Thus, in fact both parties have not produced the earlier quit notice and the landlords have not raised any pleas based on the earlier quit notice. In that view of the matter, there is absolutely no merit in the contention of the appellants that a second quit notice is always invalid because no second quit notice is contemplated under law. Learned counsel for appellants in support of the contentions raised by 19 Dr. VRKS, J S.A.No.452 of 2015 the appellants cited Tayabali Jaffarbhai Tankiwala v. Asha & Co.2. The facts before their Lordships of Hon'ble Supreme Court of India were between landlord and tenant who are governed by the Rent Control Act. That was a case where in the first quit notice the allegations leveled was that the tenant was in arrears of rent. Tenant did not vacate the premises despite such notice. Then the second quit notice was given where the allegation made was that the landlord required the premises for personal use and occupation. The important fact to be noticed is that before dispatch of the second quit notice, the tenant tendered the arrears and the landlord received the arrear amounts, which were due till the issuance of first notice. However, subsequently there were some more arrears. In the litigation that was placed before the Courts, the landlord intended to pursue the grounds of arrear rent as well as bona fide requirements. It was in those facts and circumstances, their Lordships have stated the purport of Section 111(h) and Section 113 of the Act and held that by issuing second notice 2 (1970) 1 SCC 46/MANU/SC/0461/1969 20 Dr. VRKS, J S.A.No.452 of 2015 the landlords waived the first notice and therefore, they could not take up such contentions, which were available in the earlier notice. It is in such fact situation the questions of waiver do come. In the case at hand, no such fact situation is available and there is nothing to say one has waived anything that was there. It is not the case that the landlords while giving Ex.A.1 quit notice had sought termination of the tenancy and eviction of the tenants within 15 days calculated from the date of receipt of earlier notice. It is crystal clear and is undisputed that Ex.A.1 quit notice prescribes a fresh period informing the tenants that after lapse of 15 days from the date of receipt of that Ex.A.1 notice they must vacate the premises. In fact the earlier quit notice was not a notice to tenant/defendant No.1 as stated by defendant No.2. If that be the case, Ex.A.1 is the only one notice that was issued to and received by the tenant. When there is only one notice, the whole argument that there are two notices is totally misconceived. Therefore, Ex.A.1 quit notice is completely valid. The contentions raised for appellants as against it are incorrect. The observations of the first appellate Court concerning the validity of Ex.A.1 are correct. 21
Dr. VRKS, J S.A.No.452 of 2015
23. The contention of the appellants is that to suit the enjoyment of the tenants to run a college and hostel, they invested a lot of money in raising certain structures and painting it periodically and therefore, they shall never be evicted until they choose to vacate the premises. They stated that landlords agreed at the time of constructions that they would not demand for eviction. It is on these reasons, they resist the orders of eviction. None of these reasons would invalidate Ex.A.1 quit notice. The case is not argued on the premise that it is a permanent tenancy. The case is an oral tenancy without any specific period of tenancy. The theory propounded by the tenants was confronted to PW.1 and he denied it as false. No legal basis is shown that a tenant when invested some money for his own better enjoyment of the property he could retain the property as long as he wished. Principles of Estoppel are not argued here. There is absolutely no reason to see that any of these contentions could ever disentitle a landlord from issuing a quit notice in a case of the present nature. Even if the lessees contention is accepted that they are entitled to occupy the demised premises as long as they wish, this does not help 22 Dr. VRKS, J S.A.No.452 of 2015 tenants in this case since the law is that this oral lease being one from month to month, a tenancy which is expressed to be at the will of one of the parties should by implication be treated as terminable at the will of either of the parties vide Ram Niwas v. Nihal Singh3 and Ram Lal v. Bibi Zohra4 and Manicka v. Chinnappa5. Therefore, these contentions of appellants are without any merit. Therefore, point Nos.1 and 2 are answered against the appellants.
24. Point No.4:
Learned counsel for appellants submit that Order XLI Rule 31 C.P.C. mandates the first appellate Court to clearly record the points for consideration that were to be adjudicated in the first appeal and in this case the first appellate Court failed in that regard. Learned Senior Counsel cited Karamalakunta Kadiramma v. Karamalakunta Dasappa6 in 3 1960 SCC Online Raj 47 4 AIR 1941, Patna 228 5 I.L.R. 36 Mad, 557 6 1999 (2) ALT 256 23 Dr. VRKS, J S.A.No.452 of 2015 support of his contention. That was a suit for permanent injunction and the trial Court dismissed it. When the first appeal came, the only point that was framed for consideration was "Whether the judgment and decree of the trial Court is liable to be set aside?" Learned first appellate Court dismissed the appeal. In the second appeal before this Court plaintiffs sought Order XLI Rule 31 C.P.C. and questioned the approach of the first appellate Court. Agreeing with the submission, this Court had stated that such type of framing the point for consideration is absolutely of no use in deciding the real dispute between the parties. Stating so, it set aside the judgment of the first appellate Court and remanded the appeal to be disposed of afresh in accordance with law. Thus, this Court had ruled that the real dispute between the parties should form part of point for consideration in case where first appeal was heard by the Courts. In all fairness, learned counsel for appellants also cited Ali Mohamood v. Special Court under A.P. Land Grabbing (Prohibition) Act, Hyderabad7. There also Order XLI Rule 31 7 2000 (4) ALT 673 (D.B.) (AP) 24 Dr. VRKS, J S.A.No.452 of 2015 C.P.C. fell for consideration. On analysis of the facts available on record, learned Division Bench of this Court held that under Order XLI Rule 31 C.P.C. law contemplates that both parties should have an understanding as to what are the points that fall for consideration before the appellate Court and that the judgment of the appellate Court should indicate that it applied its mind to the evidence available on record and stated that simply because there is failure to frame the points for consideration by the first appellate Court itself cannot make the judgment invalid as long as the judgment of the appellate Court indicates full consideration of facts and law on its part. Thus, this Court ruled that it is not mere technical compliance of Order XLI Rule 31 C.P.C. that is required but the Courts are to comply with its spirit. As against the above submissions, learned counsel for respondents submits that the judgment of the first appellate Court indicates full compliance with Order XLI Rule 31 C.P.C.
25. This Court has gone through the entire judgment of the learned first appellate Court. In the earlier parts of this 25 Dr. VRKS, J S.A.No.452 of 2015 judgment, the seven points that were framed for consideration by the first appellate Court are also recorded. The learned first appellate Court considered the evidence on record, considered the finding of the trial Court and considered the rival submissions and rendered its specific decision on each point that fell for consideration. Therefore, the criticism against the first appellate Court that it failed to comply with Order XLI Rule 31 C.P.C. is misplaced. Therefore, this contention of the appellants is negatived. The point is answered against the appellants.
26. Point No.5:
The contention raised by the learned Senior Counsel for appellants is that a substantial amount of Rs.10,00,000/- was spent by the tenants for construction of class rooms for the students and it is liable to be adjusted either in the rents or the money has to be returned to them by the landlords. The further contention raised is that on this aspect of the matter the first appellate Court failed to record a finding. 26
Dr. VRKS, J S.A.No.452 of 2015
27. Since the question raised is that the first appellate Court did not consider and record a finding, it is apt to extract the relevant part of the judgment of the first appellate Court contained at page No.6. The same is extracted here:
"ii).....Contention of defendants is that for construction of rooms in the first floor and to raise sheds and also to raise level of ground, they spent lakhs of rupees. DWs.1 and 2 deposed that accounts are available and they mentioned all those amounts in the income tax returns. Defendants not produced the records. Further defendants not produced the records to show the amount spent by them to get the schedule premises repaired and also for painting. Defendants entered into plaint schedule premises in the year 1994. 15 years after the entering of the defendants in the schedule premises, plaintiffs filed the present suit. It may be true, defendants spent some amount for the further constructions and leveling of ground etc. That was long back. What is the exact amount the defendants spent, there is no evidence except the contentions of defendants that lakhs of rupees spent. Defendants are having accounts and not produced. The spending of amount is for their better enjoyment and enjoyed the developments for a considerable length of time."
Thus, it is a fact that first appellate Court noticed the contentions of the tenants and recorded a factual finding that 27 Dr. VRKS, J S.A.No.452 of 2015 there was no clear evidence to prove as to how much the tenants spent and it further held that whatever that was spent was spent by the tenants only for their own better enjoyment of the property that they willingly obtained lease and that the tenancy having been commenced long back in the year 1994, the tenants have enjoyed the benefits of what they spent. It is in that context one has to understand that the first appellate Court considered the plea and negatived the plea.
28. Be it noted that the entire written statement does not spell out a definite figure of Rs.10,00,000/- though in this second appeal Rs.10,00,000/- came to be mentioned. Despite having all the necessary evidence, defendants did not choose to prove the money that they spent. Be it noted that there is no counter claim and there is no such of pleading in the written statement. Now in this second appeal a plea of adjustment is mentioned. A plea of adjustment can be pressed into service only the same was raised before the institution of the suit and not afterwards. If one could institute a separate suit for realization of the amount due to him, it is a case of set off. If 28 Dr. VRKS, J S.A.No.452 of 2015 the adjustment was made prior to the filing of the suit by the plaintiff and a plea is taken to that effect, it would be a plea of adjustment by payment vide Southern Dredging Co. (P) Ltd. v. K.Muhammed Haji8. In that view of the law, the contention raised in this second appeal by the tenants about an amount that is never proved is a case where a plea of adjustment could not be raised that too in this second appeal. Hence, this point is answered against the appellants.
29. Point No.3:
In the plaint, while the rent is described as Rs.24,000/- per month, the landlords sought for damages at the rate of Rs.90,000/- per month from the date of termination of the tenancy. That much amount was claimed in Ex.A.1-notice also. In Ex.A.2-reply notice and in their written statement tenants traversed those pleadings. In Ex.A.1-notice at para No.4 the landlords mentioned that the demised premises has a built up area of 10,640 square feets out of a larger site of 1,760 square 8 2022 SCC Online Ker (3056) 29 Dr. VRKS, J S.A.No.452 of 2015 yards. That Ex.A.1 became part of the evidence. In Ex.A.2 those calculations are denied as incorrect. During trial, both parties did not adduce evidence about the correct measurements of the demised premises. It is elicited through PW.1 during cross-examination that in the physiotherapy college run by the tenants there are 320 students for whom now there are class rooms and there is also a hostel. It was also elicited through PW.1 by the tenants themselves where the premises is now in occupation of tenants the landlords have to pay 33% of the rental value to the Municipal Corporation and that per half hear the tax being paid to the Municipal Corporation is Rs.26,000/-. It was also elicited through cross- examination of PW.1 by the tenants that by the time the premises was taken on lease by the tenants there were 15 rooms in the plaint schedule property. The defendants in their written statement and in the evidence of DWs.1 and 2 stated that the rent of Rs.24,000/- that is paid by them is either similar to rents available in that area or even more than the prevailing rental values. Neither party produced any evidence to prove the extent of the property or the rental values in that 30 Dr. VRKS, J S.A.No.452 of 2015 neighbourhood for similar type of premises or any other values, which could properly furnish material for appropriate consideration of damages for use and occupation. That on termination of lease, the tenant, who is continuing in possession, has to either vacate the premises or pay damages for use and occupation since the authority to stay in the property as a tenant was terminated statutorily. Rent that is being paid by a tenant during the currency of the tenancy itself may not be called as sufficient amount to be paid by a person hanging on possession without there being tenancy. Therefore, damages for use and occupation should always be more than the normal rent. It is the contention of both sides that between the date of inception of lease and laying the suit before the trial Court, the time gap was 15 years and during that phase on eight occasions rent was raised and the last occasion when the rent was enhanced was four years earlier to the institution of the suit. Thus, in a span of 11 years there were eight enhancements of rents. That gives an indication that the tenants were inclined to raise the rent almost for every 1 ½ years. From the last enhancement there was a gap of four years 31 Dr. VRKS, J S.A.No.452 of 2015 for filing suit and that would have raised the rents at least on two occasions. As per the evidence on record, the earlier rent was Rs.16,000/- and it was raised to Rs.24,000/-. Thus, there was 50% hike. If on one occasion it is 50% and if it is taken for two occasions it comes to 100% raise. Thus, by the time the suit was laid, the rent could have been raised from Rs.24,000/- to Rs.48,000/-. Even according to the defendants/tenants, the landlords have been demanding them to raise the rent up to Rs.50,000/- and as they disagreed to raise, landlords had filed the suit. In the context of the above facts, possible rent could be Rs.48,000/- and therefore granting damages at the rate of Rs.50,000/- per month for use and occupation by the learned first appellate Court seems to be appropriate. It is true, as contended by the learned Senior Counsel for appellants that, the first appellate Court though recorded that there is settled law that damages for use and occupation could be double the rent, no legal principle is recorded either from a statute or from precedent. It is to be recorded here that on this particular point of law, learned counsel on both sides despite pointed question from this Court, have not cited any ruling to the effect that 32 Dr. VRKS, J S.A.No.452 of 2015 damages for use and occupation could be either double the rent or something else. Though the first appellate Court's observation that there is settled law is incorrect, the final conclusion that it reached in granting Rs.50,000/- towards damages for use and occupation cannot be called as unreasonable and at any rate, that relief cannot be called as illegal or against law. Therefore, there is no merit in the contentions raised by the tenants. This point is answered against the appellants.
30. In the result, the Second Appeal is dismissed with costs. The appellants/tenants are hereby directed to vacate the suit schedule premises on or before 28.04.2023.
As a sequel, miscellaneous applications pending, if any, shall stand closed.
_____________________________ Dr. V.R.K.KRUPA SAGAR, J Date: 14.11.2022 Ivd 33 Dr. VRKS, J S.A.No.452 of 2015 THE HON'BLE JUSTICE Dr. V.R.K.KRUPA SAGAR SECOND APPEAL No.452 of 2015 Date: 14.11.2022 Ivd