Padavala Krishna Mohan Babu vs Smt.Bonda Venkata Kanaka Ratnam
2023 Latest Caselaw 5429 AP

     THE HON'BLE SRI JUSTICE A.V. RAVINDRA BABU

                       Appeal Suit No.563 OF 2017
JUDGMENT:-

      The Judgment, dated 24.04.2017 in O.S.No.132 of 2011,

on the     file   of    III Additional   District Judge,   Bhimavaram

("Additional District Judge" for short), is under challenge in the

present Appeal Suit filed by the unsuccessful defendants in the

aforesaid suit.

      2)      The parties to this Appeal Suit will hereinafter be

referred to as described before the learned Additional District

Judge for the sake of convenience.

      3)      The case of the plaintiff in O.S.No.132 of 2011,

according to the averments in the plaint originally filed before

the Court of Senior Civil Judge, Bhimavaram, in brief, is as

follows:

      (i) The plaintiff is the owner of the plaint „A‟ schedule shop

and „B‟ schedule furniture having acquired the same after the

death of her father, Sri Tatavarthi Mangayya Gupta. One

Padavala Manikyala Rao is the father of the defendants. The

defendants and their father, Manikayla Rao, originally took the

„A‟ schedule shop and „B‟ schedule furniture on lease for doing

Chappal (Shoe) business under the name and style of "Krishna

Balaji Shoe Mart".        The lease was renewed up to 31.03.2008.
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The father of the defendants, Manikyala Rao, died during the

pendency of the lease. After completion of the said lease period,

the defendants requested the plaintiff and her father, Mangayya

Gupta, to renew the lease for a further period of two years

commencing from 01.04.2008 up to 31.03.2010.          The plaintiff

and her father agreed for the same and a registered lease deed,

dated   22.03.2008,   bearing   Document     No.1116/2008,     was

executed between them incorporating the terms of lease.

According to the said terms, the defendants shall pay monthly

rent of Rs.6,300/- for „A‟ schedule shop and Rs.700/- for „B‟

schedule furniture, in total a sum of Rs.7,000/- for the first year

of the lease. They shall pay Rs.7,000/- for „A‟ schedule shop and

Rs.700/- for „B‟ schedule furniture for the second year. They

should further pay rents on the 5th day of every succeeding

month by duly obtaining a receipt from the plaintiff. If for any

reason if they commit default in payment of rents, they will

forego the right to continue in the schedule shop for the rest of

the lease period and the plaintiff is entitled to recover the

arrears with interest at 36% per annum.        The terms further

stipulates that the defendants shall not carry any business

prohibited under law and shall not do any other business except

shoe business in „A‟ schedule premises. They have no right to

sublet the shop or transfer the lease in favour of third parties.
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They also gave an undertaking to vacate the schedule shop in

case it is required by the plaintiff for development and for

personal use and occupation. They should hand over the shop

along with furniture in the same condition after completion of

the lease period.   They should not change the flooring of the

schedule shop without consent of the plaintiff. They have to use

the „B‟ schedule furniture carefully without any damage and they

have to white wash the shop on their own expenses. In case of

any damage caused to „B‟ schedule furniture, they have to

compensate the same as determined by the plaintiff. The

plaintiff has to pay municipal tax and the defendants have to

pay all the charges payable to the Government in connection

with their business including electrical charges. In case the

defendants fails to vacate the schedule premises after the lease

period is over, they have to pay Rs.500/- per day towards

damages for use and occupation for „A‟ schedule premises and

Rs.150/- per day for „B‟ schedule furniture and the plaintiff can

recover it with interest at 36% per annum.

     (ii) The defendants paid the rents as per the terms of the

lease deed up to September, 2009, but committed default in

payment of rents from October, 2009 onwards up to date. They

did not vacate the „A‟ schedule premises and hand over the „B‟

schedule furniture, though the lease period was expired by
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22.03.2010 in spite of demands made by the plaintiff. They are

unauthorizedly continuing in „A‟ schedule premises and using „B‟

schedule furniture. They are liable to pay Rs.45,000/- towards

arrears of rent for the period October, 2009 up to March, 2010

and they have to pay the interest at 36% per annum and from

23.03.2010 they are liable to pay damages for use and

occupation of „A‟ schedule premises and „B‟ schedule furniture at

Rs.500/- and Rs.150/- per day respectively. They have to pay

the same with interest at 36% per annum. The plaintiff has been

demanding the defendants to pay the arrears of rent and

damages and to vacate „A‟ schedule shop and to hand over „B‟

schedule furniture, but, they postponed the same on one pretext

or other. Hence, the plaintiff got issued a registered notice,

dated 09.02.211 demanding the defendants to pay the arrears

of rent and damages and to vacate the plaint schedule premises

and to hand over the furniture. The defendants received the said

notice and sent a reply on 15.02.2011 with false allegations.

They committed willful default in payment of rentals due to the

plaintiff, as such, they have forfeited their right to continue in „A‟

schedule premises and to use „B‟ schedule furniture. Apart from

that, the plaintiff required the plaint „A‟ schedule shop for

development and for personal use and occupation. Hence, the

suit for eviction and recovery of arrears of rent and damages.
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        (iii) With the above contentions, the plaintiff prays to pass

a decree directing the defendants to deliver vacant possession of

„A‟ schedule premises along with „B‟ schedule furniture and to

pay arrears of rent and damages for use and occupation to the

plaintiff with subsequent interest at 12% per annum, till the

payment and for costs of the suit.

        4)    The defendants got filed their written statement

denying the case of the plaintiff and their contention, in brief,

according to the contents of written statement, is as follows:

        (i) The defendants‟ father, Padavala Manikyala Rao, took

the plaint „A‟ schedule shop and „B‟ schedule furniture along with

his sons i.e., defendants from the father of the plaintiff, Sri

Tatavarthi Mangaiah Gupta, on lease for a monthly rent of

Rs.3,000/- to „A‟ schedule shop and Rs.500/- to „B‟ schedule

furniture under a written lease agreement for a period of two

years    commencing     from   01.04.1998     to   31.03.2000.   The

defendants and their father conducted Chappal business in "A‟

schedule shop premises in the name and style of "Krishna Balaji

Shoe Mart".      Tatavarthi Mangaiah Gupta is the owner of the

plaint „A‟ schedule shop at the time of taking the shop on lease

in the year 1998 by the defendants and their father. The

agreement of lease was executed between Tatavarthi Manikyala

Rao, Gandham Sree Rama Chandra Murthy and the father of
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defendants, Manikyala Rao. The plaintiff is in no way connected

with the aforesaid lease agreement executed by her father in

respect of the plaint „A‟ and „B‟ schedule properties. The

plaintiff‟s father, Tatavarthi Mangaiah Gupta, is rich person and

having many commercial complexes in Bhimavaram. The father

of the plaintiff is a peace loving citizen and he never troubled

the defendants. He renewed the aforesaid lease agreement to

the defendants and their father by enhancing the rent of 20%

for every two years. The said process continued up to 2008.

      (ii) The allegations that the defendants committed default

are all false.

      (iii) The defendants and their father paid the rents for „A‟

schedule shop and „B‟ schedule furniture regularly to the

plaintiff‟s father without committing any default. While so, the

plaintiff‟s father died in November, 2009. After the death of

Tatavarthi Mangaiah Gupta, his son received the rents from the

tenants in the place of his father, but, he did not issue any

receipt to the payments made by the defendants. If the tenants

asked for receipts, the son of Mangaiah Gupta used to say that

their family members are going to partition the properties and

until that is done, he is not able to issue any receipt. Basing on

the said representation, the defendants along with other tenants

used to pay the rents regularly to the plaint „A‟ schedule shop
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and „B‟ schedule furniture up to January, 2011.       The plaintiff‟s

brother received January, 2011 month rent from the defendants

and introduced his sister i.e., present plaintiff to the defendants

and told to them that plaint „A‟ and „B‟ schedule properties

devolved to the share of his sister and the rents should be paid

to her.      Later, the plaintiff called the defendants and insisted

them to enhance the rent of „A‟ schedule shop premises from

Rs.7,000/- to Rs.14,000/- per month and the rent of „B‟

schedule furniture from Rs.700/- to Rs.1,500/- per month from

February, 2011 onwards. The defendants objected and replied

to the plaintiff that her demand is excessive and stated to the

plaintiff that her father enhanced the rent for every two years at

20% on the existing rents. On hearing the same, the plaintiff

turned aggressive and demanded the defendants to vacant the

schedule      properties.   The   defendants   are   in   continuous

possession and enjoyment of the plaint „A‟ and „B‟ schedule

properties and they did not commit any default.           The efforts

made by the defendants to pay the rents to the plaintiff are

refused by the plaintiff.     They sent the rents for „A‟ and „B‟

schedule properties to the plaintiff by way of drafts through

registered post with acknowledgement due for the month of

February and March 2011, but the same are returned by the

plaintiff.   They never violated the terms and conditions of the
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lease agreement. They did not sublet the premises to anybody

and they continued their business. The plaintiff is not entitled to

seek eviction and to demand the arrears of rent. Hence, the suit

is liable to be dismissed.

        5)     Basing on the above pleadings, the following issues

were settled for trial when the matter was on the file of Senior

Civil Judge, Bhimavaram:

        (1) Whether the plaintiff is entitled for vacant possession
        of plaint „A‟ schedule premises along with „B‟ schedule
        furniture by evicting the defendants from there?


        (2) Whether the plaintiff is entitled for Rs.2,22,300/- as
        claimed in the suit towards arrears of rent and damages
        from defendant Nos.1 and 2 with subsequent interest at
        12% per annum?


        (3) To what relief?


        6)     Subsequently, according to the orders of the District

Judge     in   Dis.No.3086,   dated    23.04.2012,   the   case   was

transferred to the III Additional District & Sessions Judge (FTC),

Bhimavaram.

        7)     During the course of trial, on behalf of the plaintiff,

P.W.1 was examined and Ex.A.1 to Ex.A.3 were marked.               On

behalf of the defendants, D.W.1 and D.W.2 were examined and

Ex.B.1 to Ex.B.107 were marked.
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      8)    The learned Additional District Judge on considering

the oral as well as documentary evidence, decreed the suit

directing the defendants to deliver vacant possession of plaint

„A‟ schedule shop along with „B‟ scheduled furniture to the

plaintiff on or before 24.07.2017, failing which, the plaintiff is at

liberty to get the same through process of Court and further

decreed the suit for recovery of sum of Rs.2,75,383/- by

directing the defendants to pay the said amount to the plaintiff

towards arrears of rent and damages with subsequent interest

at 12% per annum from the date of suit till the date of

realization on the said amount of Rs.2,75,383/- and with costs.

Felt aggrieved of the same, the unsuccessful defendants filed

the present Appeal Suit.

      9)    Now, in deciding the appeal suit, the points that

arise for consideration are as follows:

      (1) Whether the plaintiff before the learned III Additional
      District Judge, Bhimavaram, proved her entitlement to
      claim eviction of the defendants from plaint „A‟ schedule
      property and to get back the furniture under „B‟ schedule
      property?


      (2) Whether the plaintiff before the trial Court proved her
      entitlement to recover arrears of rent and damages?


      (3) Whether the judgment and decree, dated 24.04.2017
      in O.S.No.132 of 2011, is sustainable under law and facts
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      and whether there are any grounds to interfere with the
      same?


      (4) To what relief?


Point Nos.1 to 3:

      10)    Sri K. Prudhvi Raj, learned counsel, representing Sri

Turga Sai Surya, learned counsel appearing for the appellants,

would contend that the plaintiff before the learned Additional

District Judge failed to prove her entitlement. The finding of the

learned Additional District Judge that Ex.A.1 was undisputed

document cannot stands to any reason. In fact, the plaintiff

failed to prove the due execution of Ex.A.1, as such, the Court

should not have decreed the suit. The plaintiff did not prove the

alleged default attributed against the defendants and in spite of

that the learned Additional District Judge believed the default.

Though the defendants paid rents up to date, but after the death

of father of the plaintiff they could not get rental receipts and it

is evident from the evidence of D.W.1 and D.W.2. The decreeing

of the suit with regard to the arrears of rents and damages is

without proper reasons and it is not on the basis of evidence.

The defendants have no knowledge that the property fell to the

share of the plaintiff. The judgment of the learned Additional

District Judge under any rate is not sustainable under law, as

such, it is liable to be set aside.
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      11)   Sri   Ch.   Madhava      Raman,    learned   counsel,

representing Sri Sai Mohan, learned counsel appearing for the

respondent, would contend that there is no dispute about the

execution of Ex.A.1, which is a registered lease deed, between

the plaintiff and her father and the defendants. The defendants

in their written statement did not dispute the lease deed. There

is no dispute about the period of lease and terms and conditions.

Though the defendants committed default in payment of rents

with effect from October 2009, but the plaintiff could issue the

legal notice only after completion of effluxion of time of lease.

Though the defendants committed default from October, 2009 in

paying the rentals, the plaintiff could issue Ex.A.2-legal notice

after waiting much time. There is no dispute about the quantum

of rent in respect of plaint „A‟ schedule shop and in respect of

plaint „B‟ schedule furniture as on the date of default committed

by the defendants and as on the date of issuance of legal notice.

After the death of father of the plaintiff, the plaintiff, who was

the joint executants of Ex.A.1, became the owner of the plaint

schedule property. There is no dispute about the ownership of

the plaintiff. There is no dispute about the execution of Ex.A.1.

The contention of the defendants that Ex.A.1 is undisputed is

nothing but baseless. On account of effluxion of time under

Ex.A.1 and as the lease was not renewed after completion of

time, absolutely, the plaintiff is entitled to maintain a suit for

eviction. Insofar as the default committed by the defendants is

concerned, the plaintiff categorically testified the same. Ex.A.1

contemplates the payment of rents to the executants of Ex.A.1

and obtaining of rental receipts. The defendants miserably failed

to prove that the paid rents after October, 2009 and till the date

of expiry of Ex.A.1. The evidence of D.W.1 and D.W.2 is

inconsistent with regard to the so-called rents paid by them.

The learned Additional District Judge with cogent reasons

decreed the suit in favour of the plaintiff. With regard to the

damages, the claim of the plaintiff is based upon the stipulations

in Ex.A.1, which are not in dispute. Hence, there are no grounds

to interfere with the judgment of the learned Additional District

Judge and the appeal suit is liable to be dismissed.

12) P.W.1 before the learned Additional District Judge is

no other than the plaintiff, who got filed her chief examination

affidavit by adverting to the averments in the plaint and through

her examination Ex.A.1 to Ex.A.3 were marked. Ex.A.1 is

registered lease deed, dated 22.03.2008 executed by the

defendants, plaintiff and her father. Ex.A.2 is a copy of

registered legal notice, dated 09.02.2011 issued by the plaintiff

to the defendants. Ex.A.3 is a registered reply notice, dated

15.02.2011 issued by the defendants to the notice under Ex.A.2.

13) D.W.1 before the learned Additional District Judge is

no other than the 1st defendant, who got filed his chief

examination affidavit and through him Ex.B.1 to Ex.B.107 were

marked. Ex.B.1 is the certified copy of lease deed bearing

Doc.No.1847/1998, dated 16.05.1998. Ex.B.2 is the certified

copy of lease deed Doc.No.1894/2000, dated 29.03.2000.

Ex.B.3 is the certified copy of lease deed bearing

Doc.No.1420/2002. Ex.B.4 is the certified copy of lease deed

bearing Doc.No.1953/2004, dated 26.04.2004. Ex.B.5 is the

certified copy of lease deed bearing Doc.No.2838/2006, dated

27.03.2006. Ex.B.6 to Ex.B.107 are rental receipts got issued

by the plaintiff‟s father. Further the defendants examined

D.W.2, the so-called clerk of the defendants, in support of the

case.

14) Firstly, this Court would like to deal with right of

plaintiff to file the suit for eviction. There is no dispute that

according to Ex.A.1, the plaintiff was one of the executors of

Ex.A.1 along with her father. Ex.A.1 is nothing but a registered

document. In the entire written statement of the defendants,

they never disputed the execution of Ex.A.1 by the plaintiff and

her father. When the plaintiff was co-executant of Ex.A.1 and

on account of death of her father, absolutely, she is entitled to

maintain the suit for eviction. It is not a case where any other

legal heirs of the first executant of Ex.A.1 raised any dispute

claiming ownership over the property. Even in the written

statement the defendants did not deny the interest of the

plaintiff in the plaint schedule property. Apart from this,

virtually, there is no whisper that they are not aware of the

terms and conditions in Ex.A.1. The contention of the

defendants that the plaintiff did not prove the due execution of

Ex.A.1 is not at all tenable. Apart from this, the contention of

the defendants that the learned Additional District Judge made

findings that Ex.A.1 is not in dispute deserves no merits.

Therefore, Ex.A.1 is a voluntary document entered into between

father of the plaintiff and plaintiff at one hand and the defendant

at another hand. In view of the contents of Ex.A.1 as well as

Ex.B.1 to Ex.B.5, which were the earlier lease agreements

covering the period prior to Ex.A.1, it is no doubt true that

previously the father of defendants was a tenant in the plaint

schedule property. After his demise the defendants entered into

registered lease agreement under Ex.A.1 with the plaintiff and

her father. Absolutely, the terms and conditions in Ex.A.1 are

not in dispute. Ex.A.1 is covering the period from 01.04.2008

for a period of two years.

15) The substance of Ex.A.1 is that the lease would

commence from 01.04.2008 and would come to an end on

31.03.2010. It is in respect of plaint „A‟ schedule property and

in respect of plaint „B‟ schedule property. Plaint „A‟ schedule

property is the room and plaint „B‟ schedule property is the

furniture therein. The rentals for the first year is Rs.6,300/- per

month for plaint „A‟ schedule property and Rs.700/- for plaint „B‟

schedule property. The rentals in the subsequent year is

Rs.7,000/- per month in respect of plaint „A‟ schedule shop and

Rs.700/- per month in respect of plaint „B‟ schedule furniture.

There is no dispute that as on the date of alleged default

attributed by the plaintiff against the defendants, the rentals per

month in respect of plaint „A‟ schedule was Rs.7,000/- per

month and in respect of plaint „B‟ schedule was Rs.700/- per

month. There is a condition that after completion of lease

period, the lessees have to deliver the possession with the

lessors and they are entitled to get back the possession for their

business purpose or for development of the property and the

lessees undertakes to do so. It means that even prior to the

effluxion of time the executants were entitled to claim back the

possession. There is no dispute that the defendants were in

possession of the property during the period of entire lease

under Ex.A.1. Therefore, it is not a case where the plaintiff

terminated the tenancy before expiry of time contemplated

under Ex.A.1.

16) Apart from this, it is also a case where the plaintiff

alleged default against the defendants in payment of rents, as

such, claimed arrears of rents and damages in view of the terms

and conditions laid down in Ex.A.1. Thus, it is very clear that the

plaintiff being the owner of the plaint schedule property and one

of the executants of Ex.A.1 is absolutely entitled to maintain the

suit for eviction against the defendants and the contention of the

defendants that Ex.A.1 is not voluntary or that plaintiff is not

entitled to seek eviction, etc., deserves no merit.

17) Coming to the default alleged against the

defendants, P.W.1 during chief examination alleged the same

against the defendants. As pointed out, a duty is cast upon the

defendants to pay the rentals on 5th day of following month of

the previous month and to obtain proper receipts. So, the

plaintiff supported her case by deposing that the defendants

committed default with effect from October, 2009. During entire

cross examination of P.W.1 nothing is elicited in support of the

case of the defendants that they paid the rents without any

default. On the other hand, D.W.1 in his cross examination

deposed that after death of Mangaiah Gupta, he and his brother

paid the rentals to Pattabhi Ramaiah, who is the son of elder

brother of Mangaiah Gupta. On the other hand, according to

D.W.2, who is the clerk of D.W.1, defendants paid rents through

him to one Tatavarthi Venkata Subba Rao, who did not pass any

receipt. The evidence of D.W.1 and D.W.2 in cross examination

cannot stands to the test of scrutiny. It is not a case where the

defendants claimed that they paid rents to the plaintiff, one of

the executants of Ex.A.1. They were aware of the terms and

conditions mentioned in Ex.A.1 which is a registered document.

If really they paid the rents, they would have obtained receipts.

It is rather improbable to assume that contrary to the terms and

conditions laid down in Ex.A.1, the defendants paid rents to the

third parties who are not concerned with Ex.A.1. Therefore, it is

a case where the defendants miserably failed to prove that they

paid rents to the plaintiff without any default right from October,

2009 and as on the date of expiry of period mentioned in

Ex.A.1. Therefore, the plaintiff in the considered view of this

Court further proved the default committed by the defendants in

respect of the rents as claimed by the plaintiff. As seen from

Ex.A.1, there is a clear whisper that if the defendants failed to

surrender the plaint schedule property after expiry of lease

period, they have to pay damages at the rate of Rs.500/- per

day in respect of the plaint „A‟ schedule property and at the rate

of Rs.150/- per day in respect of the plaint „B‟ schedule

property. These things are not in dispute. Hence, the claim of

the plaintiff claiming damages is also in tune with Ex.A.1. It is

not the case of the defendants that the terms and conditions in

Ex.A.1 are oppressive and they are not aware of its contents.

18) Having regard to the above, I am of the considered

view that the plaintiff further proved, the default committed by

the defendants in payment of arrears of rent and her

entitlement to claim damages.

19) The learned III Additional District Judge,

Bhimavaram, rightly upheld the contention of the plaintiff that

she is entitled to seek eviction of the defendants from the plaint

schedule property and further that she is entitled to claim

amount under the head of arrears of rents and the damages.

20) The point Nos.1 to 3 are answered accordingly.

Point No.4:

21) In the light of the findings on point Nos.1 to 3, the

judgment of the learned Additional District Judge is sustainable

under law and facts, as such, there are no grounds to interfere

with the same and the appeal suit is liable to be dismissed.

22) The learned III Additional District Judge,

Bhimavaram, while decreed the suit of the plaintiff, granted

three months time to vacate the plaint schedule property. Now,

as the judgment of the trial Court is going to be confirmed, it is

appropriate to fix a reasonable time to the defendants to vacate

the plaint schedule property.

23) In the result, the Appeal Suit is dismissed with costs

confirming the Judgment, dated 24.04.2017 in O.S.No.132 of

2011, on the file of III Additional District Judge, Bhimavaram.

The defendants shall vacate the plaint schedule property and to

hand over the possession of the plaint schedule property to the

plaintiff within three (03) months from the date of this

judgment, failing which the plaintiff be at liberty to recover the

possession by due process of law.

Consequently, miscellaneous applications pending, if any,

shall stand closed.

________________________ JUSTICE A.V. RAVINDRA BABU Dt. 10.11.2023.

PGR

THE HON'BLE SRI JUSTICE A.V. RAVINDRA BABU

Appeal Suit No.563 of 2017

Date: 10.11.2023

PGR