Vijay Educational Society vs Narra Ravindra Prasad, Chandra ...
2022 Latest Caselaw 8691 AP

           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

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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

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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

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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:

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?"

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.

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

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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

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

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:

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

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

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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.

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

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

2012 (2) ALT 4602012 (2) ALT 460

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

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

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

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

(1970) 1 SCC 46/MANU/SC/0461/1969

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.

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

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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

1960 SCC Online Raj 47

AIR 1941, Patna 228

I.L.R. 36 Mad, 557

1999 (2) ALT 256

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

2000 (4) ALT 673 (D.B.) (AP)

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

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.

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

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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

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

2022 SCC Online Ker (3056)

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

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

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

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

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