The Appeal vs Holland (1895) 1 Qb 378
2023 Latest Caselaw 3413 AP

         THE HON'BLE SRI JUSTICE T.MALLIKARJUNA RAO

                    APPEAL SUIT No.184 OF 2014

JUDGMENT:

1. The Appeal, under Section 96 of the Code of the Civil Procedure,

1908, is filed by the appellant/defendant, challenging the decree and

common Judgment dated 24.02.2014 in O.S. No.187 of 2012 and A.S.

No.299 of 2011 passed by the learned II Additional District Judge,

Vijayawada (for short, 'trial Court').

2. The present Appeal is filed questioning the decree and Judgment

in O.S. No.187 of 2012.

3. The parties will be referred to as arrayed before the trial Court.

4. The brief averments, of the plaint, in O.S. No.187 of 2012 are as

under:

(a) The plaintiffs initiated the suit seeking eviction and damages

amounting to Rs.7,500/- per month from the date of suit till the

date of delivery of the schedule property. The plaint schedule

property originally belonged to one Kota Lakshmikantha Rao, the

father of plaintiffs 1 to 3 and 5 to 9 and husband of the 4th plaintiff.

He passed away intestate on 14.03.2010 leaving the plaintiffs as his

heirs. In the plaint schedule property, the defendant joined as a

tenant on 01.07.2003 on a monthly rent of Rs.4,000/-,

subsequently, the rent was increased to Rs.4,400/- from

01.07.2008. The defendant paid rent untill December, 2008 but

defaulted from 01.01.2009 onwards. Kota Lakshmikantha Rao got

issued a quit notice to the defendant on 07.12.2009 directing the

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defendant to vacate the plaint schedule premises and deliver

possession by 31.01.2010 and demanded payment of arrears of rent

from 01.01.2009 onwards. In response, the defendant sent a reply

notice on 29.12.2009. On 03.01.2010, the defendant sent a Demand

Draft for Rs.2,000/- along with a covering letter claiming it to be the

rent for December 2009, in reply, Kota Lakshmikantha Rao issued a

rejoinder to the defendant stating that the defendant must pay the

arrears of rent @ Rs.4,400/- per month from 01.01.2009 to

01.01.2010 totalling Rs.52,800/-. Subsequently, the defendant filed

R.C.C.No.13/2010 and deposited rent @ Rs.2,000/- per month into

the Court.

(b) The plaintiffs along with Kota Lakshmikantha Rao filed a suit

in O.S.No.251 of 2010 against the defendant to recover rent arrears.

During the suit's pendency, Kota Lakshmikantha Rao died, leaving

the plaintiffs as his legal heirs. On 06.11.2010, the plaintiff s issued

a quit notice to the defendant. In respondent, the defendant issued a

reply reiterating the baseless allegations.

(c) The plaintiffs also asserted that they demanded the defendant

to pay Rs.7,500/- per month as damages for the use and occupation

of the plaint schedule property from 01.12.2010 onwards, by

contending that the defendant's tenancy was terminated by

30.11.2010, as the defendant became a tenant holding over from

01.12.2010 onwards. Despite numerous demands made by the

plaintiffs to vacate the property, the defendant deliberately chose not

to comply.

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5. The defendant filed a written statement, denying most of the

allegations made in the plaint, contending that the schedule shop was

in question was taken on oral lease from the father of plaintiff's 1 to 3

& 5 to 9 in 2003 on a monthly rent of Rs.1,500/-, along with an

advance payment of Rs.25,000/-. As per the lease agreement, the rent

would be increased every five years with mutual consent, and the lease

term was set for twenty years. In 2008, the rent was increased from

Rs.1,500/- p.m to Rs.2,000/- p.m, and the defendant consistently

paid the rent until 2009. However, while receiving the rent for

November 2009, the landlord's son arbitrarily and unlawfully

demanded an exorbitant increase of rent from Rs.2,000/- to

Rs.5,000/-. As the plaintiffs refused to receive the rent, the defendant

was constrained to file R.C.C. No.13 of 2010, and since then, the

defendant has been regularly depositing the rent with the Court.

Furthermore, the defendant asserts that she is not liable to pay any

amount exceeding Rs.2,000/- per month, much less Rs.7,500/- as

claimed by the plaintiffs.

6. Based on the above pleadings, the trial Court framed the following

issues in O.S. No.187 of 2012:-

(1) Whether this Court has no jurisdiction to try the suit? (2) Whether the quit notice is true and valid? (3) Whether the plaintiff is entitled to eviction of the defendant from the suit scheduled property and also entitled to the damages @ Rs.7500/- p.m. from the date of filing of the suit till the eviction of the defendant?

(4) To what relief?

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7. During the trial, on behalf of the plaintiffs, P.Ws.1 and two were

examined, and Exs.A.1 to A.12 documents were marked. On behalf of

the defendant, D.Ws.1 to 3 were examined, and Exs.B1 to B3

documents were marked. After the completion of the trial and hearing

arguments from both sides, the trial Court decreed the suit as prayed

for, however, by fixing the damages at Rs.4,840/- per month.

8. Sri Manikanteswara Rao Kotha, learned Counsel for the

appellant/defendant contends that the quit notice dated 16.11.2010 is

invalid; the defendant was duly inducted into the plaint schedule

property under an oral lease for a duration of 20 years with an initial

rent of Rs.1,500/- per month in the year 2003 with an advance

amount of Rs.25,000/-. He further emphasized that the defendant had

filed RCC.No.13 of 2010, which was subsequently decreed under

Ex.B1, as a result, the appellant/defendant has been paying the rent

@ Rs.2,000/- per month from December 2009 till the present. He

further contends that the defendant's husband, who was examined

D.W.1, denied the alleged signature on Ex.A3; the trial Court failed to

consider the authenticity of Ex.A.3; the respondent failed to establish

the rent payable for the schedule premises as either Rs.4,000/- or

Rs.4,400/- per month; the signatures of D.W.3 being minor, have no

validity.

9. Per contra, Sri V.Subrahmanyam, learned Counsel appearing

for the respondents/plaintiffs would contends that the trial Court

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correctly appreciated the case facts and reached a correct conclusion.

The reasons given by the trial Court do not require any modifications.

10. Having regard to the pleadings in the suit, the findings

recorded by the Trial Court and in light of the rival contentions and

submissions made on either side before this Court, the following

points would arise for determination:

1. Whether the civil Court has got jurisdiction to entertain the suit as on the date of institution of the suit?

2. Whether the quit notice issued under section 106 of the Transport of Property Act is in accordance with the law?

3. Whether fixing the quantum of damages at Rs.4,840/- per month would be just and proper?

4. If so, to what relief the parties are entitled?

POINTS NO.1 TO 3:

11. The learned Counsel representing the appellant/defendant

would submit that the Civil Court has no jurisdiction to entertain the

suit at all for the reason that the agreed rent per month is Rs.1,500/-

and the premises are governed by the provisions of Andhra Pradesh

Buildings (Lease, Rent and Eviction) Control Act, 1960. He also

pointed out that in the light of the specific plea taken, the quit notice

under section 106 of the Transfer of Property Act, 1882 (For short, 'the

Act') is not in accordance with the law.

12. The learned Counsel representing the respondents/land owners,

the plaintiffs in the suit, would contend that quit notice is in

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accordance with law and even otherwise, in the light of language

employed by section 106 of the Act as substituted by Amending Act 3

of 2003, the defence, if any need not be seriously considered.

13. Upon careful examination of the evidence, the following facts

emerged as either admitted or undisputed:

(a) Pursuant to the orders of the Composite High Court of A.P.

in C.R.P. No.587 of 2012, dated 18.05.2012, the suit originally

filed as O.S. No.75 of 2011 was transferred from the I Additional

Junior Civil Judge Court, Vijayawada to the II Additional District

Judge Court, Vijayawada with a direction to consolidate the suit

with A.S. No.299 of 2011 which was already pending before the II

Additional District Court, Vijayawada. Following the transfer, the

suit (O.S. No.75 of 2011) was renumbered as O.S. No.187 of 2012

on the file of II Additional District Court, Vijayawada.

(b) A.S.No.299 of 2011 was preferred by the appellant/

defendant, who was aggrieved by the Decree and Judgment in

O.S. No.251 of 2010 on the file of III Additional District Court,

Vijayawada. O.S. No.251 of 2010 was initiated to recover rents

amounting to Rs.60,900/-, equivalent to 13½ months @

Rs.4,400/-. The plaintiffs 2 to 4 in the said suit are sons of the 1 st

plaintiff, the owners of the rented premises, while the defendant is

the tenant.

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(c) The plaint schedule property originally belonged to Kota

Lakshmikantha Rao, who was the father of the plaintiffs 1 to 3

and 5 to 9 as well as the husband of the 4th plaintiff. Following

his demise intestate, the plaintiffs have inherited his legal rights.

The schedule property comprises of shop rooms with doors

Nos.37-44 and 37-45 facing Bandar road.

(d) The plaint schedule property in O.S. No.251 of 2010

consisted of two shop rooms, located on Bandar Road, opposite

Government Ayurvedic College - cum - Hospital. The defendant/

appellant became a tenant of the schedule property on

01.07.2003 operating business of Ayurvedic medicines. Notably,

the schedule property in O.S. No.251 of 2010 is the same as that

of in O.S. No.187 of 2012.

(e) The appellant/defendant initiated R.C.C. No.13 of 2010

before the Rent Controller, Vijayawada, seeking permission to

deposit the rent. The appellant claimed that the rent payable was

Rs.2,000/- per month. Whereas, the owners of the schedule

property disputed the said contention. The appellant relied on

Ex.B.2 which is a certified copy of the order in R.C.C. No.13 of

2010. The Rent Controller passed an order under Ex.B.2, allowing

the defendant to deposit the rent @ Rs.2,000/- per month. It is

mentioned in Ex.B.2 that the Rent Controller had no jurisdiction

to determine the quantum of rent. The order emphasized that the

dispute regarding the quantum of rent should be resolved in the

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civil suit specifically in O.S. No.251 of 2010, which was filed to

recover rent arrears.

14. After carefully considering the evidence on record, the suit in

O.S. No.251 of 2010 was decreed, the defendant/appellant is directed

to pay the arrears of rent which amounted to Rs.60,900/- with the

provision to deduct any amount already deposited by the defendant in

R.C.C. No.13 of 2010 for the period from 01.01.2009 to 15.03.2010.

15. Dissatisfied with the Decree and Judgment in O.S. No.251 of

2010, the defendant/appellant herein preferred Appeal in A.S. No.299

of 2011. In a consolidated Judgment dated 24.02.2014, the II

Additional District Judge, Vijayawada, disposed of A.S. No.299 of 2011

and O.S. No.187 of 2012. The Court upheld the contentions of the

owners of the schedule property, ordering the defendant to vacate the

plaint schedule premises and deliver vacant possession within three

months of the decree. Furthermore, the Court confirmed the plaintiffs

claim validating the rent for the schedule premises as Rs.4,400/- per

month and affirming the defendant's default in payment of rent as

alleged in the suit in O.S. No.251 of 2010. It is worth noting that the

appellant has not provided any record to demonstrate preferring the

appeal against the orders in A.S. No.299 of 2011. In the absence of

such an appeal, the findings rendered in A.S. No.299 of 2011 hold

finality as the dispute between the parties primarily concerned the

quantum of rent payable by the tenant.

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16. In the light of background facts, this Court intends to address

the rival contentions raised in this Appeal. In reference to the

Judgment in O.S. No.187 of 2012, the trial Court determined the

damages for the use and occupation of the schedule premises at

Rs.4,840/- per month effective from 01.12.2010. While the trial Court

did not accept the plaintiffs' claim for damages set at Rs 7,500/-, it is

crucial to highlight that the plaintiffs did not prefer Appeal or cross-

objections against that finding, resulting in its finality. As observed by

the trial Court, it is pertinent to determine the rent payable for the

schedule premises which directly decides the jurisdiction of the Civil

Court. If the rent is indeed Rs.2,000/-per month as contended by the

defendant/appellant, then the Rent Controller has jurisdiction over the

matter and the plaintiffs should seek eviction through that channel.

Conversely, if the rent for the schedule premises is established at

Rs.4,400/- per month, then the Civil Court will have jurisdiction to try

the suit. According to plaintiffs' claim, the rent was initially set at

Rs.4,000/- per month, and subsequently increased to Rs.4,400/- per

month from 01.07.2008 onwards. Thus, the primary contention at

hand is whether the plaintiffs can substantiate their contention that

the rent for the schedule premises is at Rs.4,400/- per month. It is an

undisputed fact that the defendant has been in possession of the

plaint schedule property as a tenant since 01.07.2003. It is important

to note that there is no written tenancy agreement between the parties.

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17. In support of their case, the plaintiffs relied on Exs.A.1 to A.12

documents. Their main contention is that a practice existed, wherein

rent receipts were issued whenever tenants made rent payments.

PWs.1 and 2 have explicitly stated that they used to issue rent receipts

and retain counterfoils. However, the defendant disputes the practice

of issuing rent receipts. In contrast, the plaintiffs relied on Ex.A.3 a

certified copy of the rent receipt book which containing counterfoils

related to the schedule premises.

18. In support of the defendant's case, the defendant's husband

V.V.L.N.Ramakrishna Sharma, is examined as DW.1. The defendant

also got examined her son as DW.2. It is undisputed that the original

of Ex.A.3, the rent receipt book was filed in O.S. No.251 of 2010. The

defendant contends that Ex.A.3 is fabricated and created document.

Admittedly, Ex.A.3 receipt book contains counterfoils. As far as the

schedule premises, is concerned, the counterfoil starts from Sl. No.17

to 79. The counterfoil for Sl. No.17 dated 01.08.2003 shows that the

rent was paid through a cheque with No.28172 drawn on Union Bank

of India. DW.1 admits that his wife has an account in the same bank,

and account No.28127 belongs to his wife, who operates it through a

cheque system. Neverthless, DW.1 denied the suggestion that they

issued a cheque on 01.08.2003 to the K.Lakshmikantha Rao for

Rs.4,000/- as rent for July 2003. However, DW.1 failed to produce the

passbook of Union Bank relating to the defendant's account for the

year 2003. The defendant has not provided any explanation for non-

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production of the account book. If the defendant contends that the

cheque was not issued as rent payment, they could have produced the

account book to support their claim. The absence of bank pass book

raises doubt about the defendant's case and it is reasonable to draw

an adverse inference against the defendant for failing to produce it.

19. It is not DW.1's stand that the cheque was issued for some

other purpose than the payment of rent. The defendant has not

provided an explanation as to how the plaintiffs obtained the cheque

related to DW.1's wife. This document supports the plaintiffs' claim

regarding the rent payable for the scheduled premises. The counterfoil

dated 01.08.2003 at Sl. No.17 includes the details of the cheque and

the account number. It indicates that rent payments were made in the

name of Renuka Agencies for the shop rooms with door numbers 37-

44 and 37-45. As the tenancy began in July 2003, the trial court

rightly observed that the plaintiffs could not have fabricated a

counterfoil for the first month of the tenancy. Additionally, it is not

explained how the plaintiffs were aware of the defendant's account

number at the start of the tenancy. The trial court disregarded the

defendant's claim of counterfoil fabrication after providing reasons.

20. The defendant raised an argument regarding the payment of

an advance amount of Rs.25,000/- at the start of the tenancy.

However, no receipt or acknowledgement has been filed to

substantiate this claim. Without supporting documents, it is difficult

to accept this contention. On the other hand, the plaintiffs argue that

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they did not receive any advance amount due to the proposed

demolition of a portion of the building for road widening.

21. Although DW.3 provided evidence supporting the defendant's

argument regarding the rent payable for the scheduled property, this

Court does not consider the oral testimony of DW.3 to carry significant

weight, as the counterfoils from Ex.A.3 establish that the rent payable

for the schedule property was initially Rs.4,000/- per month and later

increased to Rs.4,400/- per month.

22. The plaintiffs relied on Ex.A.12, a certified copy of DW.1's

deposition in O.S. No.251 of 2010. It is worth noting that DW.1, who is

the defendant's husband, was also examined as DW.1 in that case,

and his deposition is marked as Ex.A.12. In Ex.A.12, DW.1 admitted

that they started a business in the scheduled premises as a branch of

their business establishment at S.N.Puram. He further mentioned that

they paid rent of Rs.2,000/- per month for a shop at S.N.Puram after

closing their business there in 2008. Based on this evidence, the trial

court observed that Bandar Road, where the scheduled premises are

located, is a busy commercial area, whereas S.N.Puram is far away

from Bandar Road. It is difficult to believe that when the defendant

was paying rent of Rs.2,000/- per month in the year 2000 at

S.N.Puram, they would have taken the scheduled premises on rent for

Rs.1,500/- per month. There is no evidence on record to suggest that

the trial court's finding is incorrect.

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23. It is admitted that the father of plaintiffs 1 to 3 issued Ex.A4, a

quit notice demanding the defendant to vacate the scheduled premises

and deliver possession to the plaintiffs by 31.01.2000. Ex.A.5 is a

certified copy of the reply sent by the defendant, while Ex.A.8 is a

certified copy of the rejoinder to that reply notice. The defendant then

issued another reply, the original of which is Ex.A.9, and the plaintiffs

responded with Ex.A.10. Ex.A.11 is the reply issued by the defendant.

There is no significant dispute between the parties regarding the

exchange of these notices. These notices reflect the positions taken by

both parties in the suit. After the demise of the father of plaintiffs 1 to

3, the plaintiffs issued Ex.A.1, a quit notice dated 06.11.2010,

demanding that the defendant vacate the premises by 30.11.2010 and

pay damages at the rate of Rs.7,500/- per month from 01.12.2010

onwards. Ex.A.2 acknowledges the receipt of Ex.A.1 quit notice. In

Ex.A.1 quit notice, it is stated that the tenancy is on a month-to-

month basis, commencing from the 1st of every month, and the rent

payable is Rs.4,400/- per month for the two shop room portions. The

tenancy of the defendant is stated to be terminated by 30th November

2010, and the defendant is directed to vacate the schedule property.

Failure to do so would result in the defendant being liable to pay

damages at the rate of Rs.7,500/- per month from 01.12.2010

onwards. The defendant does not argue that there is any variance in

the terms and conditions of the lease as stated in Ex.A.1 and Ex.A.4.

Although Ex.A.1 does not explicitly reference Section 106 of the Act, it

still functions as a notice for the determination of the lease. The

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reasons for terminating the lease mentioned in Ex.A.1, with a date

aligned with the end of the month in which the notice was issued,

clearly indicate that it is a quit notice as contemplated under Section

106 of the Act.

24. Section 106 of the Transfer of property Act 1882, deals with the

duration of certain leases in absence of a written contract or local

usage, which reads as hereunder:

(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. A lease of immovable property for any other purpose shall be deemed a lease from month to month, terminable, on the part of either lessor or lessee, by fifteen days' notice. (2) Notwithstanding anything contained in any other law for the time being in force, the period mentioned in subsection (1) shall commence from the date of receipt of the notice. (3) A notice under subsection (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 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.

25. The observations of the Supreme Court in the decision

reported in Bhagabandas V. Bhagawandas1, make the point clear in

this regard. In that case, also, it was mentioned in the quit notice that

the tenant shall vacate the house and deliver possession to the

1 A.I.R. 1977 SC 1120

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landlord within the specified period. The specific terminology of

terminating the tenancy was not used in that particular case also. In

those circumstances, it is observed by their Lordships in Para-3 of the

Judgment:

"Now it is settled law that a notice to quit must be construed not with a desire to find faults in it, which would render it defective, but it must be construed res magis valent quam pereat, "The validity of a notice to quit", as pointed out by Lord Justic L indley, L.J. in Sidebotham Vs. Holland (1895) 1 QB 378, "ought not to turn on the splitting of a straw". It must not be read in a hyper-critical manner, nor must its interpretation be affected by pedagogic pendantism or over refined subtlety, but it must be construed in a common sense way".

26. The defendant issued a reply notice as evidenced by Ex.A.11.

The trial Court correctly noted that since the tenancy is month to

month basis, provisions of section 106 of the Transfer of Property Act,

1882 would be applicable. Although the defendant contends that quit

notice is illegal and not valid under the law, no supporting reasons

were provided to substantiate the contentions.

27. Upon careful examination of the content of Ex.A.1 quit notice

and the reasoning provided by the trial Court, it is evident that the

quit notice issued under Ex.A.1 is in full compliance with subsection

(1) of section 106 of the Transfer of Property Act, 1882. The trial Court

after providing its detailed reasons, rightly observed that quit notice

issued by the plaintiffs 1 to 3 after the death of K.Lakshmikantha Rao,

cannot be considered a waiver of notice to quit.

28. It is born out from the record after the issuing of notice by the

father of plaintiffs 1 to 3; he died, and subsequently, the plaintiffs got

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issued Ex.A.1 notice. Section 111 (h) of the Act provides how the lease

is to be determined in the case a notice is issued for termination of

tenancy. It reads as follows:

"(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".

29. Section 106 of the Act does not insist that the consequential

suit must be filed within a time. The plaintiffs could not pursue the

legal action consequent to the notice issued by K.Lakshmikantha Rao;

this Court views that it does not bar the plaintiffs from issuing fresh

notice and initiating legal action based on the said notice. In the facts

of the case, the trial Court's finding "the giving of quit notice by the

plaintiffs 1 to 3 after the death of their father cannot be considered as

a waiver of notice to quit" cannot be found fault with. As rightly

observed by the trial Court, the defendant did not plead that there was

a waiver of quit notice.

30. In the light of the clear evidence available on record and in the

light of the amended provision, which had watered down the rigour of

section 106 of the Act as it originally stood before the amendment Act,

the submissions regarding the validity of quit notice are not

sustainable. Given all these circumstances, the trial Court rightly held

that Ex.A.1 is a valid notice to quit satisfying all the requirements of

section 106 of the Act. Therefore, the respondents are entitled to seek

eviction of the appellant from the premises.

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31. The trial Court after considering the location of the building

and enhancement of rent from Rs.4,000/- to Rs.4,400/- after the lapse

of five years, the damages be ascertained for the scheduled premises at

Rs.4,840/- by increasing the rent by 10% over the existing rent which

was last enhanced in 2008. The trial Court has given reasons to fix the

damages at Rs.4,840/- per month from 01.12.2010. As such, the said

finding cannot be interfered with.

32. For the reasons stated above, this Court is of the view that

the findings and observations of the trial court are in accordance with

the evidence on record. I find that there is no valid ground made out

by the appellant/defendant to interfere with the Judgment of the trial

Court, and hence the Judgment is hereby affirmed. This Appeal

therefore fails and is hereby dismissed. The impugned Judgment

passed by the trial court is upheld. Accordingly, the points are

answered.

POINT NO.4:

33. As a result, the Appeal fails, and it is hereby dismissed with

costs by confirming the Decree and Judgment in O.S. No.187 of 2012,

dated 24.02.2014. The appellant/defendant is granted three months

to vacate the premises subject to the following conditions:

1. The appellant/defendant shall file an undertaking before the trial Court within one month from today that she would vacate the premises on or before the expiry of three months from today.

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2. If such undertaking is not filed within one month from today, the decree shall be executable forthwith without any further reference to this Court.

34. Miscellaneous petitions pending, if any, in this Appeal shall

stand closed.

                                    ___________________________________
                                    JUSTICE T. MALLIKARJUNA RAO


Date:      .07.2023
MS/SAK

                                                     T.M.R.,J
                                          A.S. No.184 of 2014



    THE HON'BLE SRI JUSTICE T.MALLIKARJUNA RAO




            APPEAL SUIT NO. 184 OF 2014
                 DATE: 13.07.2023
MS/SAK