Telangana High Court
Union Bank Of India vs Smt.E.Ratna Manikyam on 2 August, 2024
Author: G.Radha Rani
Bench: G.Radha Rani
THE HONOURABLE DR.JUSTICE G.RADHA RANI
APPEAL SUIT No.139 of 2024
JUDGMENT:
This Appeal is filed by the appellant - defendant aggrieved by the judgment and decree dated 28.07.2023 passed in O.S.No.1254 of 2016 by the VI Additional District & Sessions Judge, Kukatpally, Rangareddy District.
2. The respondent - plaintiff filed the suit for eviction of the defendant from the suit schedule premises and for mesne profits @ Rs.1,10,400/- per month with effect from 01.09.2015 till the recovery of possession.
3. The case of the plaintiff was that she was the owner of the premises bearing Plot No.G5 on Ground Floor admeasuring 1766 square feet in Survey No.55/E (part) situated at Kondapur Village, Serilingampally Mandal, Rangareddy District by virtue of registered sale deed document No.8661 of 2005 dated 18.06.2005. The defendant was a tenant in the suit schedule premises under an agreement dated 11.05.2005. As per the terms of the said agreement, the monthly rent was fixed at Rs.20,700/-. The defendant sanctioned a loan of Rs.4.00 lakhs with interest @ 11.5% per annum in favor of the plaintiff subject to the condition that the said loan had to be repaid by adjusting a sum of Rs.6,955/- per month out of the monthly rent. No registered 2 Dr.GRR, J as_139_2024 lease deed was executed by the defendant. Initially, the tenancy was fixed for five (05) years, which was renewable for another five (05) years with 25% enhancement in rent. The tenancy was renewed after the completion of initial five years period and the rent was enhanced to Rs.25,875/- per month. The tenancy was from month to month under oral agreement up to 10.07.2015. Since the agreed period of tenancy came to an end, the plaintiff issued a notice dated 05.01.2015 terminating the tenancy and calling upon the defendant to vacate and handover the possession on or before 31.08.2015. Inspite of receiving the notice, the defendant did not vacate. None of the officials of Andhra Bank were responding. The plaintiff ran from pillar to post between Kondapur and Koti requesting them to vacate the premises. The defendant dragged on stating that they were looking for the premises and that they would shift. The plaintiff believed their words and waited for them to vacate. Since, they failed to vacate, the plaintiff again issued a notice dated 25.08.2016 under Section 106 of the Transfer of Property Act, 1882 calling upon the defendant to vacate and handover the suit premises by 30.09.2016. Again the defendant did not comply with the demand of the plaintiff. On a personal visit to the Bank, the defendant handed over a copy of reply notice dated 18.10.2016 claiming to have been sent by their counsel that they needed the premises up to March, 2017, as they were looking for new premises. The plaintiff contended that the defendant had no intention to vacate the premises and that she needed the 3 Dr.GRR, J as_139_2024 premises for her own occupation. Inspite of the plaintiff terminated the tenancy by notice dated 05.01.2015, the defendant without the knowledge or consent of the plaintiff kept on depositing the monthly rent of Rs.25,875/- into the account of the plaintiff. The prevailing rent in Kondapur area is Rs.80/- per square feet. As such, the defendant was liable to pay Rs.1,10,400/- per month with effect from 01.09.2015 until vacating the premises.
4. The defendant filed his written statement contending that the notices dated 05.01.2015 and 25.08.2016 were invalid. The tenancy was not legally terminated by the said notices. It was orally agreed in between the parties to renew the agreement. Hence, even after expiration of notice period, the plaintiff accepted the rent from the defendant Bank without any protest. Therefore, the tenancy was still in subsistence. The plaintiff filed this suit to pressurize and annoy the defendant for fulfilling her unreasonable demand for exorbitant enhancement of rent. The suit was barred under Section 113 of the Transfer of Property Act, 1882 and prayed to dismiss the suit.
5. Basing on the said pleadings, the trial court framed the issues as follows:
i. Whether the plaintiff is entitled for eviction of the defendant from the suit schedule property?
ii. Whether the plaintiff is not entitled for eviction in view of the waiver by acceptance of rent after issuance of the notice?4
Dr.GRR, J as_139_2024 iii. Whether the plaintiff is entitled for mesne profits. If so, to what relief?
6. The plaintiff examined herself as PW.1 and got marked Exs.A1 to A4. The defendant had not adduced any oral or documentary evidence.
7. On considering the oral and documentary evidence on record, the trial court observed that during the pendency of the suit, the defendant vacated the suit schedule property on 10.03.2019 and paid rents till they vacated the schedule property. As such, the relief of eviction sought by the plaintiff would not survive. However, the trial court partly decreed the suit with costs declaring that the plaintiff was entitled to claim mesne profits from the defendant from 01.10.2016 to 10.03.2019 and that she was at liberty to file a separate application for ascertainment of mesne profits.
8. Aggrieved by the said judgment and decree passed by the learned VI Additional District & Sessions Judge, Rangareddy at Kukatpally dated 28.07.2023, the defendant preferred this appeal contending that the trial court without properly appreciating the admissions made by PW.1 during her cross- examination decreed the suit. The trial court failed to consider that PW.1 admitted that she had received the enhanced rent on the property from the defendant till his vacating the premises and that PW.1 did not protest for depositing the rent into her bank account after expiry of the lease period and had withdrawn the said amount. The trial court failed to consider the reply notice of 5 Dr.GRR, J as_139_2024 the defendant dated 18.10.2016, wherein it was stated that the reasonable enhancement of rent was agreed and the same was not protested. PW.1 admitted that enhanced rent was paid by the defendant till he vacated the suit schedule property on 10.03.2019. The trial court failed to consider that the demands and claim of the plaintiff for eviction and mesne profits after accepting the enhanced rent were contrary to the provisions of Sections 112 and 113 of the Transfer of Property Act, 1882 and prayed to set aside the judgment and decree dated 28.07.2023 passed in O.S.No.1254 of 2016.
9. Notice was issued to the respondent and memo was filed in proof of service of notice on the respondent. But the respondent failed to appear before the Court and contest the matter.
10. Heard Sri G.Anand Kumar, learned counsel for the appellant - defendant.
11. As seen from the pleadings, the relationship between the plaintiff and the defendant as landlord and tenant is not disputed. There is no written agreement of lease between the plaintiff and the defendant. The plaintiff contended that it was an oral agreement on 11.07.2005 and the monthly rent was fixed at Rs.20,700/- per month for five years, which was renewable for another five (05) years with 25% enhancement in rent and the tenancy was renewed after the completion of initial five years period and the rent was fixed at Rs.25,875/- per month up to 10.07.2015. As per the plaintiff after the agreed period of tenancy 6 Dr.GRR, J as_139_2024 came to an end, she issued a notice dated 05.01.2015 terminating the tenancy and calling upon the defendant to vacate and handover the property on or before 31.08.2015. But, inspite of receiving the same, the defendant did not vacate. As such, she issued another notice dated 25.08.2016 under Section 106 of the Transfer of Property Act, 1882 calling upon the defendant to vacate and handover the suit premises by 30.09.2016. The defendant gave reply on 18.10.2016 stating that they needed the premises up to March, 2017 and that they were looking for new premises.
12. As per the contention of the defendant, even after expiry of the notice period, the plaintiff accepted the rent from the defendant Bank without any protest. As such, the tenancy was still in subsistence and the notices dated 05.01.2015 and 25.08.2016 were invalid.
13. As the defendant Bank vacated the suit schedule property on 10.03.2019 and paid rents till they vacated the suit schedule property, the relief of eviction is dismissed by the trial court as infructuous. Though the defendant contended that the notices dated 05.01.2015 and 25.08.2016 were invalid, no reason was stated by the defendant as to why they should be considered as invalid. The trial court found Ex.A3 notice dated 25.08.2016 as valid and inspite of receiving the said legal notice, the defendant had not vacated the suit schedule property by 30.09.2016, the possession of the defendant over the suit schedule property 7 Dr.GRR, J as_139_2024 from 01.10.2016 to 10.03.2019, on which date they vacated the suit schedule property is considered as un-authorized possession and observed that the plaintiff was entitled for mesne profits for the said period. The contention of the learned counsel for the defendant was that as the plaintiff accepted the rent from the defendant Bank without any protest even after expiration of the notice period, the tenancy should be considered as subsisting.
14. The Hon'ble Apex Court in Sarup Singh Gupta v. S.Jagdish Singh1, held that:
"Mere acceptance of rent cannot amount to waiver of notice unless there was other evidence to prove that the landlord so intended. Waiver of notice by conduct is a well-known concept in law. The acceptance of rent after expiry of notice by itself may not necessarily constitute a waiver. But, if the conduct of the parties goes to show that the parties intended to waive the notice and create a new tenancy, the waiver can be inferred from such conduct."
15. The High Court of Bombay in Narendra Vyankatesh Tambat v. Pravin Kumar Khushalchand Tated2, also held that:
"The waiver can occur only when the lessor has treated the tenancy as subsisting. Mere acceptance of arrears of rent can not imply that 1 (2006) 1 RCJ 89 (SC) 2 AIR 2015 (NOC) 1279 Bombay 8 Dr.GRR, J as_139_2024 the lessor treated the tenancy as subsisting unless it can be established as conscious and deliberate act. There has to be consensus ad idem of the parties to treat the lease as subsisting or reestablish the relationship of the landlord and tenant. Mere acceptance of rent, therefore, without the intention to treat the lease as subsisting would not amount to waiver. The acceptance of rent may be without prejudice to the rights and contentions in the notice, it does not amount to waiver. Waiver has to be a deliberate and conscious act on the part of the landlord to treat the contractual tenancy-lease as subsisting. If the eviction suit is continuing even after acceptance of the rent it indicates that the landlord has no intention to waive the quit notice because landlord has elected to continue with the eviction proceedings in order to recover possession from the lessee."
16. PW.1 in her cross-examination stated that after the expiry of the tenancy period in the year 2015, the defendant approached her for renewal of tenancy. But she did not agree and demanded for further enhancement of rent. She stated that the defendant, after the first five years enhanced the rent by 25% from Rs.20,700/- to Rs.25,875/- per month and paid the said enhanced rent till he vacated the suit schedule property on 10.03.2019. There is no further enhancement of rent after the expiry of the tenancy period in the year 2015 and the defendant continued to occupy the premises even after receipt of the legal notice issued by the plaintiff terminating the tenancy seeking the defendant to 9 Dr.GRR, J as_139_2024 vacate the property. As such, this Court does not find any merits in the contention of the learned counsel for the appellant that the respondent - plaintiff by her conduct waived the notice by accepting the rent without any protest. Her issuing the further notice on 25.08.2016 would show her intention of seeking the termination of the tenancy and her demand for vacating the premises was continuing. The occupation of the defendant after receiving the notice amounts to un-authorized possession. As such, this Court does not find any illegality or irregularity in the judgment of the trial court in decreeing the suit in part declaring the right of the plaintiff to claim mesne profits from the defendant from 01.10.2016 (the date of receipt of the second legal notice) to 10.03.2019 (the date of vacating the premises by the appellant - defendant).
17. In the result, the Appeal Suit is dismissed confirming the judgment and decree dated 28.07.2023 passed in O.S.No1254 of 2016 by the VI Additional District & Sessions Judge, Kukatpally, Rangareddy District.
No order as to costs.
As a sequel, miscellaneous applications pending in this appeal, if any shall stand closed.
_____________________ Dr. G. RADHA RANI, J Date: 02nd August, 2024 Nsk.