Telangana High Court

Union Bank Of India vs Smt.E.Ratna Manikyam on 2 August, 2024

Author: G.Radha Rani

Bench: G.Radha Rani

      THE HONOURABLE DR.JUSTICE G.RADHA RANI

                     APPEAL SUIT No.139 of 2024


JUDGMENT:

This Appeal is filed by the appellant - defendant aggrieved by the

judgment and decree dated 28.07.2023 passed in O.S.No.1254 of 2016 by the

VI Additional District & Sessions Judge, Kukatpally, Rangareddy District.

2. The respondent - plaintiff filed the suit for eviction of the defendant from

the suit schedule premises and for mesne profits @ Rs.1,10,400/- per month

with effect from 01.09.2015 till the recovery of possession.

3. The case of the plaintiff was that she was the owner of the premises

bearing Plot No.G5 on Ground Floor admeasuring 1766 square feet in Survey

No.55/E (part) situated at Kondapur Village, Serilingampally Mandal,

Rangareddy District by virtue of registered sale deed document No.8661 of

2005 dated 18.06.2005. The defendant was a tenant in the suit schedule

premises under an agreement dated 11.05.2005. As per the terms of the said

agreement, the monthly rent was fixed at Rs.20,700/-. The defendant

sanctioned a loan of Rs.4.00 lakhs with interest @ 11.5% per annum in favor of

the plaintiff subject to the condition that the said loan had to be repaid by

adjusting a sum of Rs.6,955/- per month out of the monthly rent. No registered

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lease deed was executed by the defendant. Initially, the tenancy was fixed for

five (05) years, which was renewable for another five (05) years with 25%

enhancement in rent. The tenancy was renewed after the completion of initial

five years period and the rent was enhanced to Rs.25,875/- per month. The

tenancy was from month to month under oral agreement up to 10.07.2015.

Since the agreed period of tenancy came to an end, the plaintiff issued a notice

dated 05.01.2015 terminating the tenancy and calling upon the defendant to

vacate and handover the possession on or before 31.08.2015. Inspite of

receiving the notice, the defendant did not vacate. None of the officials of

Andhra Bank were responding. The plaintiff ran from pillar to post between

Kondapur and Koti requesting them to vacate the premises. The defendant

dragged on stating that they were looking for the premises and that they would

shift. The plaintiff believed their words and waited for them to vacate. Since,

they failed to vacate, the plaintiff again issued a notice dated 25.08.2016 under

Section 106 of the Transfer of Property Act, 1882 calling upon the defendant to

vacate and handover the suit premises by 30.09.2016. Again the defendant did

not comply with the demand of the plaintiff. On a personal visit to the Bank,

the defendant handed over a copy of reply notice dated 18.10.2016 claiming to

have been sent by their counsel that they needed the premises up to March,

2017, as they were looking for new premises. The plaintiff contended that the

defendant had no intention to vacate the premises and that she needed the

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premises for her own occupation. Inspite of the plaintiff terminated the tenancy

by notice dated 05.01.2015, the defendant without the knowledge or consent of

the plaintiff kept on depositing the monthly rent of Rs.25,875/- into the account

of the plaintiff. The prevailing rent in Kondapur area is Rs.80/- per square feet.

As such, the defendant was liable to pay Rs.1,10,400/- per month with effect

from 01.09.2015 until vacating the premises.

4. The defendant filed his written statement contending that the notices

dated 05.01.2015 and 25.08.2016 were invalid. The tenancy was not legally

terminated by the said notices. It was orally agreed in between the parties to

renew the agreement. Hence, even after expiration of notice period, the plaintiff

accepted the rent from the defendant Bank without any protest. Therefore, the

tenancy was still in subsistence. The plaintiff filed this suit to pressurize and

annoy the defendant for fulfilling her unreasonable demand for exorbitant

enhancement of rent. The suit was barred under Section 113 of the Transfer of

Property Act, 1882 and prayed to dismiss the suit.

5. Basing on the said pleadings, the trial court framed the issues as follows:

i. Whether the plaintiff is entitled for eviction of the defendant from the suit schedule property?

ii. Whether the plaintiff is not entitled for eviction in view of the waiver by acceptance of rent after issuance of the notice?

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iii. Whether the plaintiff is entitled for mesne profits. If so, to what relief?

6. The plaintiff examined herself as PW.1 and got marked Exs.A1 to A4.

The defendant had not adduced any oral or documentary evidence.

7. On considering the oral and documentary evidence on record, the trial

court observed that during the pendency of the suit, the defendant vacated the

suit schedule property on 10.03.2019 and paid rents till they vacated the

schedule property. As such, the relief of eviction sought by the plaintiff would

not survive. However, the trial court partly decreed the suit with costs declaring

that the plaintiff was entitled to claim mesne profits from the defendant from

01.10.2016 to 10.03.2019 and that she was at liberty to file a separate

application for ascertainment of mesne profits.

8. Aggrieved by the said judgment and decree passed by the learned VI

Additional District & Sessions Judge, Rangareddy at Kukatpally dated

28.07.2023, the defendant preferred this appeal contending that the trial court

without properly appreciating the admissions made by PW.1 during her cross-

examination decreed the suit. The trial court failed to consider that PW.1

admitted that she had received the enhanced rent on the property from the

defendant till his vacating the premises and that PW.1 did not protest for

depositing the rent into her bank account after expiry of the lease period and had

withdrawn the said amount. The trial court failed to consider the reply notice of

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the defendant dated 18.10.2016, wherein it was stated that the reasonable

enhancement of rent was agreed and the same was not protested. PW.1

admitted that enhanced rent was paid by the defendant till he vacated the suit

schedule property on 10.03.2019. The trial court failed to consider that the

demands and claim of the plaintiff for eviction and mesne profits after accepting

the enhanced rent were contrary to the provisions of Sections 112 and 113 of the

Transfer of Property Act, 1882 and prayed to set aside the judgment and decree

dated 28.07.2023 passed in O.S.No.1254 of 2016.

9. Notice was issued to the respondent and memo was filed in proof of

service of notice on the respondent. But the respondent failed to appear before

the Court and contest the matter.

10. Heard Sri G.Anand Kumar, learned counsel for the appellant - defendant.

11. As seen from the pleadings, the relationship between the plaintiff and the

defendant as landlord and tenant is not disputed. There is no written agreement

of lease between the plaintiff and the defendant. The plaintiff contended that it

was an oral agreement on 11.07.2005 and the monthly rent was fixed at

Rs.20,700/- per month for five years, which was renewable for another five (05)

years with 25% enhancement in rent and the tenancy was renewed after the

completion of initial five years period and the rent was fixed at Rs.25,875/- per

month up to 10.07.2015. As per the plaintiff after the agreed period of tenancy

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came to an end, she issued a notice dated 05.01.2015 terminating the tenancy

and calling upon the defendant to vacate and handover the property on or before

31.08.2015. But, inspite of receiving the same, the defendant did not vacate.

As such, she issued another notice dated 25.08.2016 under Section 106 of the

Transfer of Property Act, 1882 calling upon the defendant to vacate and

handover the suit premises by 30.09.2016. The defendant gave reply on

18.10.2016 stating that they needed the premises up to March, 2017 and that

they were looking for new premises.

12. As per the contention of the defendant, even after expiry of the notice

period, the plaintiff accepted the rent from the defendant Bank without any

protest. As such, the tenancy was still in subsistence and the notices dated

05.01.2015 and 25.08.2016 were invalid.

13. As the defendant Bank vacated the suit schedule property on 10.03.2019

and paid rents till they vacated the suit schedule property, the relief of eviction

is dismissed by the trial court as infructuous. Though the defendant contended

that the notices dated 05.01.2015 and 25.08.2016 were invalid, no reason was

stated by the defendant as to why they should be considered as invalid. The

trial court found Ex.A3 notice dated 25.08.2016 as valid and inspite of receiving

the said legal notice, the defendant had not vacated the suit schedule property by

30.09.2016, the possession of the defendant over the suit schedule property

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from 01.10.2016 to 10.03.2019, on which date they vacated the suit schedule

property is considered as un-authorized possession and observed that the

plaintiff was entitled for mesne profits for the said period. The contention of

the learned counsel for the defendant was that as the plaintiff accepted the rent

from the defendant Bank without any protest even after expiration of the notice

period, the tenancy should be considered as subsisting.

14. The Hon'ble Apex Court in Sarup Singh Gupta v. S.Jagdish Singh1,

held that:

"Mere acceptance of rent cannot amount to waiver of notice unless there was other evidence to prove that the landlord so intended. Waiver of notice by conduct is a well-known concept in law. The acceptance of rent after expiry of notice by itself may not necessarily constitute a waiver. But, if the conduct of the parties goes to show that the parties intended to waive the notice and create a new tenancy, the waiver can be inferred from such conduct."

15. The High Court of Bombay in Narendra Vyankatesh Tambat v. Pravin

Kumar Khushalchand Tated2, also held that:

"The waiver can occur only when the lessor has treated the tenancy as subsisting. Mere acceptance of arrears of rent can not imply that

(2006) 1 RCJ 89 (SC)

AIR 2015 (NOC) 1279 Bombay

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the lessor treated the tenancy as subsisting unless it can be established as conscious and deliberate act. There has to be consensus ad idem of the parties to treat the lease as subsisting or reestablish the relationship of the landlord and tenant. Mere acceptance of rent, therefore, without the intention to treat the lease as subsisting would not amount to waiver. The acceptance of rent may be without prejudice to the rights and contentions in the notice, it does not amount to waiver. Waiver has to be a deliberate and conscious act on the part of the landlord to treat the contractual tenancy-lease as subsisting. If the eviction suit is continuing even after acceptance of the rent it indicates that the landlord has no intention to waive the quit notice because landlord has elected to continue with the eviction proceedings in order to recover possession from the lessee."

16. PW.1 in her cross-examination stated that after the expiry of the tenancy

period in the year 2015, the defendant approached her for renewal of tenancy.

But she did not agree and demanded for further enhancement of rent. She stated

that the defendant, after the first five years enhanced the rent by 25% from

Rs.20,700/- to Rs.25,875/- per month and paid the said enhanced rent till he

vacated the suit schedule property on 10.03.2019. There is no further

enhancement of rent after the expiry of the tenancy period in the year 2015 and

the defendant continued to occupy the premises even after receipt of the legal

notice issued by the plaintiff terminating the tenancy seeking the defendant to

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vacate the property. As such, this Court does not find any merits in the

contention of the learned counsel for the appellant that the respondent - plaintiff