Suit for eviction of the defendant from plaint schedule property and also for recovery of arrears of rent for the period from 17.05.2004 to 16.12.2006 amounting to Rs.5,48,890.67 Ps with interest at 12% per annum. - In the legal notice dated 28.11.2006, the plaintiff ,while demanding the defendant to pay the entire arrears, has terminated the lease and called upon the defendant to vacate the plaint schedule property. - The finding of the trial Court on issue No.1 is that the plaintiff has proved issuance of legal notice and defendant miserably failed in proving all material particulars pleaded by him. The trial Court further held that the plaintiff is entitled for both the relief of eviction, recovery of arrears of rent from the defendant and decreed the suit.- there is no dispute between the parties about the existence of Ex.A-1 and the relationship between the plaintiff and the defendant. The defendant being tenant is under obligation to comply with the terms and conditions, he has accepted under Ex.A-1. - This exhibit shows that the defendant paid only Rs.10,000/- on 04.06.2004. This clearly shows that the defendant does not have any other evidence much less documentary evidence to show that he has paid the rent regularly.- At any rate, these factors are virtually irrelevant in a suit based on notice under Section 106 of Transfer of Property Act.- Accordingly, the appeal is dismissed. However, the appellant is granted six months time to vacate the premises subject to the following conditions: a) that the appellant shall file an undertaking within four weeks from today before the trial Court that he will put the plaintiff in vacant possession of the plaint schedule premises; b) that the defendant shall clear the arrears of rent determined by the trial Court within four weeks from today; and c) that the defendant shall continue to pay the rent regularly, In default of anyone of the conditions, the plaintiff is entitled to put the decree for execution.

AS 845 / 2012

ASSR 11323 / 2012
PETITIONERRESPONDENT
ATLA JAYABHARAT REDDY  VSDR. NOONEY RANGANAYAKULU
PET.ADV. : NAGESWAR RAORESP.ADV. : JAYAKAR
SUBJECT: TITLE SUITS (IMMOVABLE PROPERTY)DISTRICT:  GUNTUR
published in http://164.100.12.10/hcorders/orders/2012/as/as_845_2012.html
HON’BLE SRI JUSTICE L.NARASIMHA REDDY
&
HON’BLE SRI JUSTICE S.V.BHATT
A.S.No.845_OF 2012
JUDGMENT: (Per Hon’ble Sri Justice SVB,J )
This appeal is directed against the decree and the judgment dated 27.04.2012 in O.S.No.8 of 2007, on the file of the V-Additional Senior Civil Judge, Guntur.  The defendant in O.S.No.845 of 2007 is the appellant.

The parties are referred to as arrayed in the suit.
O.S.No.8 of 2007 was filed for eviction of the defendant
from plaint schedule property and also for recovery of arrears of
rent for the period from 17.05.2004 to 16.12.2006 amounting to Rs.5,48,890.67 Ps with interest at 12% per annum. 

The allegations in the plaint are that plaintiff is the absolute owner of property i.e., 6000 sq. ft at Door No.4/1, Ranga Complex, Brodipet,Guntur.  On 17.12.2003, under Ex.A-1, the plaintiff and the defendant have entered into agreement of lease to an extent of 1500 sq. ft out of 6000 sq. ft at Ranga Complex (for short ‘the plaint schedule property).  The terms and conditions of the lease are that the monthly rent is Rs.10,000/- and is payable on or before 5th of the every succeeding month, the period of lease is 11 months and in the event of any default in payment of rent, the understanding as per Ex.A-1 is that the defendant has to pay the outstanding rent with interest at 36% per annum.  After expiry of 11 months covered by Ex.A-1, it is alleged that if the lease is renewed beyond 11 months, the same is at an increase of 10% on the existing rent. 

The case of plaintiff is that after the lease agreement was entered under Ex.A-1, the defendant has paid rent regularly for a period of four months and thereafter, defendant has not paid any rent and this compelled the plaintiff at the first instance to issue legal notice dated 18.10.2005 calling upon the defendant to pay the arrears of rent.  The defendant though received the notice has not chosen to reply.  The fact of the matter is that in spite of receipt of notice, the defendant continued to commit default in payment of rent.  In the legal notice dated 28.11.2006, the plaintiff ,while demanding the defendant to pay the entire arrears, has terminated the lease and called upon the defendant to vacate the plaint schedule property.  
It is pertinent to note that under Ex.A-1, the period of lease is for 11 months.  Admittedly, there is no fresh agreement under which the defendant had the security of any type of lease from the plaintiff.  
Consequently, the defendant is in occupation of the premises as tenant holding over.  Even after receipt of the legal notice dated 28.11.2006, the defendant has not paid the arrears of rent, much less vacated the premises.  This prompted the plaintiff to file the present suit for the relief of eviction and recovery of arrears of rent for the period referred to above.

The defendant filed written statement.  In short, the defence raised by him is that Ex.A-1 was entered into between the plaintiff and defendant and the defendant has signed Ex.A-1 without knowing the terms and conditions.  He claims that he has been depositing rents regularly into plaintiff’s account No.630701052604 in ICICI Bank, Guntur.  There is no default as alleged in the plaint.  The defendant further contends that in the month of July, 2004, the plaintiff due to financial necessity and compulsion has taken from him advance amount of Rs.3,50,000/- with interest at 36% per annum and stated that the interest payable on the said amount is agreed to be adjusted towards the rents payable to plaintiff under Ex.A-1. 
The defendant further contends that the plaintiff did not repay the amount and consequently the interest payable thereon is to be treated as rent payable by him.  He disputes receipt of the legal notice dated 01.12.2006. Thus, the defendant has accepted the burden of proving two circumstances (1) that he has signed Ex.A-1 without reading the contents thereof and consequently the same is not binding him and
(2) that the plaintiff has borrowed a sum of Rs.3,50,000/- and the interest payable thereon is to be adjusted towards rents under Ex.A-1. 
 
In other words, on both the points the burden is the on the plaintiff. 

The trial Court framed the following issues:

1.                                          Whether the plaintiff is entitled to evict the defendant from plaint schedule property?

2.                                          To what relief?
         
          The plaintiff was examined as P.W.1 and through him Exs.A-1 to A-4 were marked.  The defendant was examined as D.W.1 and examined another witness by name Abburi Sambasiva Rao was also examined as D.W.2 and through them Exs.B-1 and B-2 were marked.

          The finding of the trial Court on issue No.1 is that the plaintiff has proved issuance of legal notice and defendant miserably failed in proving all material particulars pleaded by him.  The trial Court further held that the plaintiff is entitled for both the relief of eviction, recovery of arrears of rent from the defendant and decreed the suit.

          The learned counsel appearing the appellant/defendant
Sri G.L.Nageswara Rao has contended that the Court below has erred in granting interest at 36% per annum on the outstanding rent.  The legal notice issued under Ex.A-2 is not bona fide.  The payments covered under Exs.B-1 and B-2 ought to have been accepted and consequently the findings on arrears of rent are unsustainable.
          On the other hand, learned counsel appearing for the respondent/plaintiff has contended that there is no dispute about the relationship between the plaintiff and the defendant as lessor and lessee.  The lease covered by Ex.A-1 is for 11 months.  Admittedly, the defendant having agreed to pay rent within the stipulated period has further agreed to pay the outstanding rent with interest at 36% per annum.  Having agreed to pay the rent with interest, the defendant is not entitled to question recovery or arrears of rent with interest.  The defendant, having taken the plea that he has signed Ex.A-1 without knowing the terms and conditions of Ex.A-1, has to discharge the burden.  As the defendant failed to discharge the burden and that the plaintiff has issued legal notice calling upon the defendant to hand over vacant possession, it is urged by the plaintiff that the decree passed by the trail Court is sustainable.

          The points for consideration are:

(1)               Whether the plaintiff’s suit for eviction and recovery of arrears of rent is tenable;
(2)               Whether the judgment and the decree of the Court below suffer from any irregularity or illegality? and
(3)              Whether the defendant has discharged the burden cast on him in proving Ex.B-2.

          As stated above, there is no dispute between the parties about the existence of Ex.A-1 and the relationship between the plaintiff and the defendant. 
The defendant being tenant is under obligation to comply with the terms and conditions, he has accepted under Ex.A-1.  
With a view to contend that these terms and conditions are not binding on him, the defendant has pleaded that he has signed Ex.A-1 without knowing the terms and conditions.  In the evidence of P.W.1 he admitted that he knew the contents of rent agreement and signed in it.  With this crucial admission on the part of P.W.1, the plea introduced by him pales into insignificance and rejection of this objection.  The defendant is under obligation to pay the rent as agreed under Ex.A-1. 

          The other contention urged by the defendant is that he has been paying the rent regularly into the account of the plaintiff in Account No.630701052604 in ICICI Bank, Guntur.  The proof of such a plea is only by way of pay slips of the said bank to the credit of plaintiff’s account.  The defendant has got marked Ex.B-1 dated 05.06.2004.  This exhibit shows that the defendant paid only Rs.10,000/- on 04.06.2004. This clearly shows that the defendant does not have any other evidence much less documentary evidence to show that he has paid the rent regularly.  On account of this circumstance, it is to be held that the defendant has paid rent up to 04.06.2004 and has thereafter committed default in payment of arrears of rent.  Therefore, the second plea urged by the defendant also fails.  The trial Court has considered the entire oral and documentary evidence placed by the parties to the suit.  The findings are based upon the material available on record.  The defendant has miserably failed to prove that in any manner he can resist the claim of plaintiff, both for eviction and recovery of arrears of rent. At any rate, these factors are virtually irrelevant in a suit based on notice under Section 106 of Transfer of Property Act. 

          In view of the above discussion, this Court is in agreement with the findings of the trial Court in the impugned judgment.

          Accordingly, the appeal is dismissed.  However, the appellant is granted six months time to vacate the premises subject to the following conditions:
a)                             that the appellant shall file an undertaking within four weeks from today before the trial Court that he will put the plaintiff in vacant possession of the plaint schedule premises;
b)                             that the defendant shall clear the arrears of rent determined by the trial Court within four weeks from today; and
c)                             that the defendant shall continue to pay the rent regularly,

In default of anyone of the conditions, the plaintiff is entitled to put the decree for execution.

The miscellaneous petitions, if any, filed in this appeal shall also stand disposed of.  There shall be no order as to costs.



_________________________

L. NARASIMHA REDDY, J




____________
                                                                            S.V.BHATT, J

05th June 2013


Lrkm

Comments

Popular posts from this blog

Article 54 of the Limitation Act, 1963 (36 of 1963) reads as follows: “For Specific performance of a contract: Three years The date fixed for the performance, or, if no such date is fixed, when the plaintiff has notice that performance is refused.”= the apex Court in Ahmmadsahb Abdul Mila vs. Bibijan[1], wherein it was held that the date fixed for the performance of the contract should be a specified date in the calendar, and submitted that since no specified date in the calendar for performance of the contract is mentioned in the agreement of sale, the second limb of Article 54 of the Limitation Act is applicable. ; whether the suit is barred by limitation or not becomes a tribal issue and when there is a tribal issue, the lower Court ought not to have rejected the plaint at the threshold. In view of the same, order, dated 27-01-2012, in CFR.No.90 of 2012, passed by the Additional Senior Civil Judge, Ongole, (FAC) Senior Civil Judge, Darsi, is, hereby, set aside. The Appeal is allowed accordingly.

Order 39 Rules 1 and 2 CPC. plaintiff has to prove his title and possession how he came into possession prima faice , in the absence of the same, not entitled for interim injunction = The questions as to whether the lease deed was properly stamped and whether the stamp paper on which it was typed can be said to have been procured through proper source, need to be dealt with at the stage of trial.; The suit filed by the 1st respondent, is the one for injunction simplicitor in respect of an item of immovable property. He has also filed an application under Order 39 Rules 1 and 2 CPC. Basically, it was for the 1st respondent to establish that he is in possession and enjoyment of the property and that he derived the same through lawful means, particularly when he did not contend that he encroached upon the property.= assumptions of facts against to the contents of crucial third party by misreading the same- it is just un-understandable as to how the trial Court gathered the impression that Anuradha stated that there was a meeting of Board of Directors, where it was decided to lease the property to the appellants. - the trial Court itself was not clear as to whether the appellant is the lessee or a Manager or is working under any other arrangement. - The important findings that have a bearing upon the valuable rights of the parties cannot be based upon such uncertain and unverified facts. One of the cardinal principles in the matter of examining the applications filed under Order 39 Rules 1 and 2 CPC is that a party claiming that relief must come to the Court with clean hands. Prima facie, we find that there are no bona fides, much less consistency on the part of the 1st respondent, in his effort to get the order of temporary injunction. The trial Court has misread the evidence and misinterpreted the facts borne out by the record.

Or.18, rule 17 and sec.151 C.P.C - petition filed for reopen and examination of the executant of Ex.A1 the sale deed to fill up the lacuna in evidence pointed out at the time of arguments not maintainable = Shaik Gousiya Begum. ..Petitioner Shaik Hussan and others.... Respondents = Published in http://judis.nic.in/judis_andhra/qrydisp.aspx?filename=10515