Bombay High Court
In The High Court Of Judicature At ... vs Bhide on 21 April, 2016
Bench: A.S. Chandurkar
sa43.02.odt 1/7
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR.
FIRST APPEAL NO.43 OF 2002
APPELLANT: Kishore Bhauraoji Uttarwar, aged about
40 years, Occ. Agriculturist, R/o Bham,
Ori. Deft.
Tq. Ralegaon, Distt. Yavatmal.
(on R.A.)
-VERSUS-
RESPONDENT: Chandrakant Bhaiyyaji Chimantranwar,
Aged about 40 years, Occ. Agriculturist,
Ori. Plft. (On ig r/o Bham, Tq. Realegaon, Distt.
R.A.)
Yavatmal.
Shri A. V. Bhide, Advocate for the appellant.
Shri P. D. Dharaskar Advocate with Shri Anand Parchure, Advocate
for the respondent.
CORAM: A.S. CHANDURKAR, J.
DATED: 21
st APRIL, 2016.
ORAL JUDGMENT :
1. The present appeal has been filed by the original
defendant who is aggrieved by the decree passed by the appellate
Court directing him to hand over possession of the suit premises
and also to pay damages.
2. The brief facts are that the respondent claims to be the
owner of the house property admeasuring 12ft x 16 ft which was
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given on rent to the appellant. The monthly rent payable was
Rs.350/-. The rent agreement was reduced into writing on
6-8-1991. The period of said agreement was till 6-7-1992. On
22-6-1992, the plaintiff issued a notice calling upon the defendant
to vacate the suit premises by 6-7-1992. As the same was not
done, another notice came to be issued by the plaintiff after which
the suit for possession along with the claim for damages came to
be filed.
ig The written statement was filed by the defendant in
which a stand was taken that though the premises in question
were taken on rent of Rs.350/- per month, the agreement dated 6-
8-1991 in that regard was executed on a stamp paper of Rs.5/-
which was insufficient. The receipt of the notice dated 22-6-1992
was not denied.
The parties led evidence before the trial Court. The
trial Court on consideration of the same held that the tenancy
created as per agreement at Exhibit-44 had been rightly
terminated by the original plaintiff. It was, however, held that the
tenancy came to an end by efflux of time and hence there was no
need of any notice to terminate the tenancy. After recording
finding that the damages to the extent of Rs.10/- to 12/- per day
were admitted by the defendant, it was found that an amount of
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Rs.15/- per day would serve the ends of justice. The suit was,
however, dismissed by holding that the trial Court had no
jurisdiction to entertain the same in view of provisions of Section
16 of the Provincial Small Causes Courts Act.
4. The plaintiff filed an appeal challenging aforesaid
decree. The appellate Court came to the conclusion that as the
suit was registered as a Regular Civil Suit and there was no court
which was conferred with the jurisdiction of the Small Causes
Court, the trial Court had jurisdiction to entertain the same. The
appellate Court further held that the tenancy came to an end by
efflux of time. However, the notices at Exhibits-46 and 48 could
not be treated as notices under Section 106 of the Transfer of
Property Act, 1882 (for short, the said Act). The appellate Court
held that strict compliance of the period of 15 days as required by
Section 106 of the said Act was not contemplated. The appellate
Court, therefore, decreed the suit and directed the defendant to
hand over possession of the suit premises and also pay the
damages @ Rs.15/- per day from 7-7-1992 till the possession was
handed over.
5. The second appeal was admitted on the following
substantial questions of law:
(1) Whether the agreement of lease dated 6.8.1991
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(Exhibit-44) is properly stamped and is admissible in evidence?
(2) What is the effect of the said agreement of lease if the
same is held to be invalid?
6. Shri A. V. Bhide, learned Counsel for the appellant at
the outset submitted that this Court had not stayed the decree for
possession when the appeal was admitted. According to him, on
the statement made by the learned Counsel for the respondent, the
execution of the decree only with regard to damages had been
stayed. Shri P. D. Dharaskar, learned Counsel for the respondent
on instructions submitted that in the year 2001, the decree for
possession had been executed and the respondent had received
possession of the suit premises.
In this background, it was submitted by Shri Bhide,
learned Counsel for the appellant that though the decree for
possession stands executed, the decree for damages passed by the
appellate Court remains to be executed. According to him, though
both the Courts have recorded finding that there was no
satisfactory evidence regarding the quantum of damages, only on
the admission of the defendant in his cross-examination that the
tenement could fetch Rs.10/- to 12/- per day, the plaintiff has
been held entitled for damages of Rs.15/- per day. He submitted
that damages could not have been awarded in absence of any
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evidence and if the same were to be granted on the basis of the
admission of the defendant, they ought to have been restricted to
Rs.10/- to 12/- per day. According to him, this aspect gave rise to
a substantial question of law and under provisions of Section
100(5) of the Code of Civil Procedure, 1908 (for short, the Code)
the said question could be considered.
7. Shri Dharaskar, learned Counsel for the respondent
submitted that the appellate Court after considering the admission
of the appellant had granted damages of Rs.15/- per day. He,
therefore, submitted that considering the admission of the
defendant, the amount of damages granted was just and
reasonable.
8. After hearing the respective Counsel for the parties on
this aspect, the following substantial question of law is framed
under provisions of Section 100(5) of the Code.
(3) Whether the decree for damages of Rs.15/- per day
passed by the appellate Court is based on the evidence on record?
The respective Counsel have been heard on this
question also.
9. The trial Court in paragraph 15 of its judgment has
recorded a finding that there was no evidence led by the plaintiff
to support the claim for damages @Rs.25/- per day. There was a
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reference made to the admission of the defendant that the
premises could fetch Rs.10/- to 12/- per day. This finding has
been affirmed by the appellate Court in para 30 of its judgment.
10. The admission of the defendant below Exhibit-51 is
that the shop in his occupation could be available for rent of
Rs.10/- to 12/- per day. The suggestion that an amount of Rs.25/-
per day as rent was being paid was denied. Considering the fact
that there is no evidence on record to indicate rent of Rs.25/- per
day being paid for similar premises and the decree having been
passed on the basis of the admission of the defendant, the amount
of damages could have been Rs.12/- per day if the case of the
defendant was to be accepted. It is, therefore, held that in absence
of any evidence whatsoever being led by the plaintiff to hold that
the damages of Rs.25/- per day could be claimed in view of the
admission of the defendant, the plaintiff would be held entitled for
damages @Rs.12/- per day. As noted earlier, as the respondent
has received possession of the suit premises, the adjudication of
substantial questions of law framed on 17-2-2005 has become
academic and they are therefore not decided.
11. In view of aforesaid, the substantial question no.3 as
framed is answered by holding that the appellate Court was not
justified in awarding damages @ Rs.15/- per day in absence of any
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evidence. Same ought to have been awarded at Rs.12/- per day as
admitted by the defendant.
12. In view of aforesaid, the following order is passed:
(1) The judgment dated 15-11-2000 in Regular Civil
Appeal No.42 of 1997 is partly modified. It is held that the
defendant shall pay Rs.12/- per day as damages to the plaintiff
from 7-7-1992 till the possession of the suit premises was handed
over to the plaintiff.
ig Rest of the decree in so far as the possession of the suit
premises is concerned stands confirmed.
(3) The second appeal is partly allowed in aforesaid terms.
No costs.
JUDGE
//MULEY//
