Param Educational Society, vs Mr. R. Keshya,
2025 Latest Caselaw 1882 Tel

Telangana High Court

Param Educational Society, vs Mr. R. Keshya, on 7 February, 2025

 THE HON'BLE THE ACTING CHIEF JUSTICE SUJOY PAUL


       CIVIL REVISION PETITION No.3281 of 2024

ORDER:

Sri A.Venkatesh, learned Senior Counsel representing

Sri Tarun G.Reddy, learned counsel for the petitioner and

Sri Resu Mahender Reddy, learned Senior Counsel

representing Ms. Sarvani Desiraju, learned counsel for the

respondents.

2. With the consent, finally heard.

3. This civil revision petition under Article 227 of the

Constitution of India takes exception to the order dated

16.04.2024 in I.A.No.91 of 2021 in O.S.No.127 of 2021

passed by the learned XXIV Additional Chief Judge, City

Civil Court, Hyderabad, whereby the application preferred

by the respondents/plaintiffs, who are the landlords, under

Order XV-A read with Section 151 of the Code of Civil

Procedure, 1908 (CPC), was allowed in part.

4. The contention of the petitioner/defendant, who is

the tenant, is that as per the admitted facts, a registered

lease deed was executed between the landlords and the

erstwhile management of the tenant on 28.06.2014,

wherein the rent was fixed as Rs.50,000/- per month.

Thereafter, an unregistered Memorandum of

Understanding (MoU) was entered into between the

erstwhile management on 03.04.2016 fixing the rent of

Rs.3,50,000/- per month. Thereafter, a registered

Addendum Lease Deed was entered into between the

present tenant/subsequent management and the landlords

on 23.11.2017, whereby the rent was decided as

Rs.50,000/- per month.

5. The two-fold submissions of the learned Senior

Counsel for the petitioner/defendant are that i) In view of

the judgment of the Supreme Court in B.Santoshamma v.

D.Sarala 1, a registered deed will prevail over an

unregistered document. Since the Addendum Lease Deed,

dated 23.11.2017, is a registered document, in view of

(2020) 19 SCC 80

Section 50 of the Registration Act, 1908, this document

must prevail; ii) the rent mentioned in the Addendum

Lease Deed, dated 23.11.2017, i.e., Rs.50,000/- per month

will bind the parties and not the Rs.3,00,000/- as decided

by the Court.

6. Sounding a contra note, learned Senior Counsel for

the respondents/plaintiffs submits that a plain reading of

the language used in Order XV-A of CPC shows that the

trial Court was competent to decide the quantum of rent on

the basis of admission of parties or upon an enquiry. In

the instant case, the petitioner/defendant, who is the

tenant, itself admitted before the Court below that it was

paying rent of Rs.3,00,000/- per month. The attention of

this Court is drawn to paragraph Nos.4(d) and 9 of the

counter affidavit filed by the petitioner/defendant before

the Court below, which read thus:

"4(d). I submit that the erstwhile management of the Society (Respondent herein) had entered into a Memorandum of Understanding with the Petitioners/Plaintiffs herein and had agreed to pay an amount of Rs.3,50,000/- per month as rent for the Schedule Property but as per some mutual

understanding, paid only an amount of Rs.3,00,000/- per month until 2017, when the present management of the Society (Respondent herein) took over and registered an Addendum Lease Deed with the Petitioners/Plaintiffs herein.

9. I submit that with respect to the contents in Para 4, the averment that though the amount of lease rent was mentioned to be Rs.50,000/- per month subject to an enhancement of 5% every 5 years, it was always agreed between the Parties, given the location of the Leased Premises and the vast extent of the premises, which included playground, etc., a monthly rent of Rs.3,50,000/-

was initially agreed to be paid with 5% enhancement each year and the same was reflected in an MOU executed between the Petitioners and Respondents is incorrect and denied. I submit that the MOU executed for the said additional payment of rent has been executed by the representative of the Society is not a registered document and the Petitioners herein are put to strict proof of the same. I submit that the averment that as per the understanding between the Parties, the Respondent until 2017 had paid an amount of Rs.3,00,000/- per month is not denied. I submit that the said arrangement was with the previous management of the Respondent-Society until 2017 and came to an end when the Parties executed and registered the

Addendum dated 23.11.2017 to the Lease Deed dated 28.06.2014 with the new management of the Respondent Society."

(Emphasis Supplied)

7. In paragraph No.12 of the counter affidavit filed

before the trial Court, it was clearly admitted that due to

Covid-19 pandemic, the petitioner/tenant was paying

rental amount for schedule property to the tune of

Rs.1,23,750/- for period of two months i.e., Rs.61,875/-

per month, excluding TDS. Thus, it is projected that as per

the admission of the present petitioner, he himself was

paying more than Rs.50,000/- for the period in question.

8. In view of the admission of the petitioner/defendant

and payment of rent of Rs.3,00,000/- for some time, no

fault can be found in the order of the Court below.

Learned Senior Counsel for the respondents/plaintiffs

placed reliance on K.Mallikarjuna v. S.Anassuya Devi 2

and M.B.Chander v. M/s. Balakrishna Rao Charitable

Trust 3.

2009 SCC OnLine AP 233 : 2009 (4) ALD 352

2016 SCC OnLine Hyd 301 : 2017 (3) ALD 68

9. No other point is raised by the parties.

10. Heard the parties at length.

11. Order XV-A reads thus:

"ORDER XV-A

(1) In a suit for recovery of possession, on termination of lease, or licence, with or without a prayer for recovery of arrears of rent, or licence fee, known with whatever description, the defendant, while filing his written statement, shall deposit the amount, representing the undisputed arrears, calculated up to that date into the Court and shall continue to deposit such amount, which becomes payable thereafter within one week from the date on which it becomes due, till the judgment is rendered in the suit.

(2) Whether the defendant pleads in the written statement that no arrears of rent or licence fee exists, it shall be competent for the Court to pass an order in this regard, after affording opportunity to both the parties, and in case any amount is found due, the defendant shall be under obligation to deposit the same, within the time stipulated by the Court and continue to deposit the amount which becomes payable thereafter, as provided under rule 1.

Provided that the time stipulated for payment of amount, as aforesaid, may be extended by the Court for reasons to be recorded for a period not exceeding 15 days.

If the defendant commits default in making the deposits, as aforesaid, the Court shall strike off the defence.

On such deposit it shall be competent for the plaintiff to withdraw the same.

Explanation.--The expression "the amount representing the undisputed areas" shall mean the sum of rent, or licence fee calculated for the period for which it remained unpaid, after deducting from it, any amount.

(a) paid as tax, to a local authority, in respect of the property,

(b) paid to the plaintiff under written acknowledgment; and

(c) deposited into the Court, in any proceedings, in relation to the said property."-- A.P. Gazette, 23-2-2005, Pt. I, Extra., p. 1 (No. 103)."

(Emphasis Supplied)

12. In K.Mallikarjuna (supra) and M.B.Chander (supra),

the Court held that undisputed payment of rent is a

relevant factor. Even the statute i.e., Order XV-A says so.

The relevant paragraphs of the counter affidavit filed by the

petitioner/defendant before the Court below reproduced

hereinabove make it clear that the petitioner/defendant,

admitted about the said rent and even paid it until 2017.

Thus, it cannot be said that the impugned order is based

on any extraneous factor or on impermissible ground. In

view of the admission of the petitioner/defendant, the view

taken by the Court below is in consonance with the

statutory mandate and is a plausible view.

13. The matter may be viewed from another angle. In the

impugned order, the trial Court recorded as under at

paragraph Nos.21 to 26:

"21. As per the own admission of the respondents, the erstwhile management of the college paid rents at the rate of Rs.3,00,000/- per month till the change of management on 23.11.2017. The change of management was incorporated by way of execution of a registered Addendum on 23-11-2017 (Ex.P-3) to the registered lease deed (Ex.P-2). There is no agreement between the petitioner and the new management i.e., respondent for payment of rents for the leased premises at rate of lesser rents than agreed Rs.3,00,000/-. When the previous management admittedly paid rents at the rate of Rs.3,00,000/- per month till the change of management, how the respondent expects and comes to conclusion that the petitioner would accept rents at the rate of Rs.50,000/- per month as shown in lease deed for the same building in absence of any memorandum of

understanding in writing to that effect. The respondent is admitting that the previous management paid rents at the rate of Rs.3,00,000/- per month for the leased premises. In view of such admission, this court can not expect the respondent to pay rents at the rate of Rs.50,000/- per month as agreed in lease deed(Ex.P2) more particularly in absence of any written instrument to that effect could not be understand. Therefore, the necessary inference is that the respondent who became new management of the society also shall pay rents at the same rate of Rs.3,00,000/- per month to the same building. Even otherwise, the amount of rent stated in the registered lease deed is too a small sum in a city like Hyderabad for any commercial property. It is not uncommon for the owners of the tenants to enter into the agreement and supplementary agreement regarding actual rent for the reasons known to the parties and to avoid payment of stamp duty the parties show less rent in the registered documents. The crucial aspect here is that the respondent is admitting the payment of rents at the rate of Rs.3,00,000/- per month by the previous management. When the new management wanted to pay rents as per lease deed, contrary to payment of rents paid by the erstwhile management, such understanding should have been reduced into writing. But that was not done.

22. However the submission of the respondent that possession of an additional building is not delivered to the respondent so the respondent need not pay rents to the total building including the additional building which is in the possession of the petitioners can be taken into consideration while directing respondent to pay rents and arrears of rents. It is relevant here to look into the actual suit premises to have an idea thereof.

23. The let out premises is consisting of the (a) property bearing House No.9-1-364/B/84 having G + 3 floors having total built up area of 16544 Sq.Feet (admeasuring 264 sq yards) along with (b) a play ground ad measuring 45,965 Sq. feet (ad measuring 5787 sqyds) and (c) an additional building bearing No.

9-1-364/A/81/A,B, C and D having built up area of 26,907 Sq feet, comprising of G+4 floors which is schedule property on lease.

24. As per the contention of the petitioners which can also be seen from the plaint that the respondent never occupied the (C) property i.e, an additional building bearing No. 9-1-364/A/81/A, B, C and D having built up area of 26,907 Sq feet, comprising of G+ 4 floors and that the same was included in the lease deed as there was a minimum requirement of area prescribed for CBSE school. It is the further contention of the petitioners that the said (C) property was let out to others (third parties). According to the petitioner, even without this property, the lease rental amount was always agreed to be Rs.3,50,000/- per month as shown in MOU/Ex.P1.

25. Thus it is an admitted fact that the physical possession of additional building i.e. House bearing Municipal Nos. 9-1-364/B/81, A, B, C, D comprising of Ground, First, Second, Third and Fourth floors having a built up area of 26,907/-Sq. Feet all situated at Gandhi Nagar, Bapu Ghat, Langar House of Golconda Village Mandal, Hyderabad District is never delivered to the respondent society.

26. The above contention of the petitioners makes it clear that out three properties only two properties described under (a) and (b) were given in lease and the third property ie., (C) property an additional building bearing No. 9-1-364/A/81/A,B, C and D having built up area of 26,907 Sq feet, comprising of G + 4 floors, was neither given in lease nor its possession was ever delivered to the respondent. The respondent thus required to pay rents to suit premises consisting of two properties i.e, (a) and (b) shown as above. The version of the petitioners is that the rent at the rate of Rs.3,50,000/- was agreed to pay only for the above two building excluding the third building. This contention of the petitioners seems not reasonable nor finds any support from any, material on record. When the rents were agreed to pay at enhanced rate than mentioned in registered

lease deed(Ex.P2) by executing a separate Memorandum of understanding (Ex.P1), the same fact that the enhanced rents should be paid only for two premises by excluding the third building which was mentioned in the lease deed also has to be mentioned in MOU, Instead of that, as could be seen from MOU, the enhanced rents was fixed for the total leased property which includes the additional building also. The intention of the parties to pay rents at the rate of Rs.3,50,000/- has to be paid to two premises by excluding the third building is not reflected in MOU. The very purpose of executing MOU/Ex.P1 is to express the intention of the parties otherwise mentioned in lease deed. In absence of such intention to fix the same rent for two premises by excluding third building in the MOU it is difficult to take the version of the petitioner into consideration.

27. As could be seen, both parties have calculated the amounts of rents as per their respective versions referring to the adjustments of excessive paid rents, deposited amounts with the petitioners etc. Both parties also filed statements of calculations of arrears of rents in support of their arguments and versions under Ex.P4 to P8 and Ex.R1. But this court not inclined to look into the said calculations so as to decide its correctness at this stage since the original suit stood posted for trial. The correctness of calculations, adjustments as submitted by both parties will be decided in the trial only. Both parties are at liberty to put their contentions by leading evidence in the trial. After full trial, it will be decided who would be required to pay to whom and how much."

(Emphasis Supplied)

14. As per Order XV-A, the Court is competent to fix a

provisional rent after affording opportunity to both the

parties. In order to fix such rent, the Court considered the

previous amount of rent for same schedule property, the

area where it is situated and other relevant factors and

took view which cannot be said to be an impossible view.

The Clause (2) of Order XV-A provides that even if

defendant pleads in the written statement that no arrears

of rent are due to be paid, the Court is still competent to

pass an order in this regard and fix provisional rent after

providing opportunity to both the parties. The trial Court

meticulously followed the said procedure and after taking

into account the averments of the written statement and

certain admissions took a plausible view. In view of this

peculiar factual backdrop, the judgments cited by the

learned counsel for the petitioner cannot be pressed into

service.

15. The trial Court has taken a plausible view. The scope

of interference under Article 227 of the Constitution is

limited. If the impugned order is passed by a Court having

no jurisdiction, order suffers from any patent illegality or

palpable procedural impropriety, interference can be made.

Another view is possible, is not a ground for interference.

This Court cannot act as bull in the china shop to interfere

on mere asking (see Shalini Shyam Shetty vs. Rajendra

Shankar Patil 4). In the instant case, there is no ingredient

on which interference can be made.

16. Accordingly, the civil revision petition is dismissed.

There shall be no order as to costs. Interlocutory

applications, if any pending, shall stand closed.

______________________________________ SUJOY PAUL, ACJ 07.02.2025 Vs

(2010) 8 SCC 329