Bolisetty Vijaya Kumar and Others vs Vadagam Venkata Subba Rao

L. Narasimha Reddy, J.—The defendants in O.S. No. 469 of 1999, on the file of the Court of II Additional Junior Civil Judge, Guntur, are the appellants.

The appellants are the lessees in respect of a non-residential premises belonging to the sole respondent. The lease was granted for 18 years, commencing from 1.1.1981, through a registered lease deed dated 11.2.1981. Initially, the rent was Rs. 800/- per month. The lease deed provided for periodical enhancement of rent.

The respondent issued a notice, dated 6.1.1999, u/s 106 of the Transfer of Property Act, terminating the lease, and requiring the appellants to vacate the premises. The appellants were also notified that if they continued in the premises, even after termination of the lease, they will be under obligation to pay the mesne profits, at the rate of Rs. 15,000/-per month.

Pleading that the appellants did not vacate the premises, the respondent filed the suit for eviction, as well as for mesne profits. The appellants resisted the suit on several grounds. According to them, the premises are governed by the provisions of Andhra Pradesh Rent Control Act (for short "the Act"), and so much so, the proceedings were initiated under that Act, and that the present suit is not maintainable.They also took the plea that the notice of termination does not conform to the provisions of Section 106 of the Transfer of Property Act. The trial Court framed necessary issues and decreed the suit, through its judgment dated 13.8.2004. Aggrieved thereby, the appellants filed A.S. No. 183 of 2004, in the Court of IV Additional District Judge, Guntur. The lower appellate Court dismissed the appeal, through its judgment dated 11.2.2005. Hence the second appeal.

Sri B. Adinarayana Rao, learned Counsel for the appellants, submits that the suit was not maintainable for the reason that the lease commenced with a rent of Rs. 800/- per month, and in that view of the matter, the provisions of the Act would apply. He contends that various judgments of the Supreme Court, cited before the trial Court and lower appellate Court, were not analyzed in the proper perspective. The learned Counsel points out that the notice issued u/s 106 of the Transfer of Property Act, was defective. The learned Counsel further submits that the occasion to determine the mesne profits would arise, only when the possession becomes unlawful, and as long as the appellants continue as tenants at sufferance, their possession cannot be treated as unlawful.

Sri N. Subba Rao, learned Counsel for the respondent, on the other hand, submits that though the lease commenced with a rent of less than Rs. 1,000/-, as on the date of filing of the suit, the rent was being paid at the rate of Rs. 1,100/- per month, with the consent of the parties, and in that view of the matter, it cannot be said that the premises is covered by the provisions of the Act. He also submits that the pendency of the proceedings, initiated under the Act, are no bar for the present suit. As regards the mesne profits, the learned Counsel submits that the trial Court took into account, the rent that is fetched in respect of the neighbouring premises, owned by the appellants, and no exception can be taken to it.

On the basis of the pleadings before it, the trial Court framed the following issues:

(1) Whether the plaintiff is entitled for the relief of eviction of the defendants from the schedule premises as prayed for?

(2) Whether the plaintiff is entitled for recovery of arrears as prayed for?

(3) To what relief?

The sole respondent was examined as PW.1 and on his behalf, Exs.A-1 to A-9 were marked. The first appellant was examined as DW.1 and on his behalf, Exs.B-1 to B-7 were marked.

The main controversy before the trial Court was as to the maintainability of the suit. The appellants pleaded that the suit premises are governed by the provisions of the Act, and the suit is not maintainable. Reliance was placed upon the judgment of the Supreme Court in M/s. Ambalal Sarabhai Enterprises Ltd. Vs. M/s. Amrit Lal and Co. and Another, , as well as certain other decisions on the same point. It should be said to be the credit of the learned Presiding Officer of the trial Court that she had undertaken an excellent analysis of the judgments cited before her, with reference to the facts of the instant case. Very rarely we come across such an analysis of a brilliant order in the trial Courts. She aptly distinguished the facts of the case before the Supreme Court and the instant case. A clear distinction was pointed out as to the timing of amendment to the Rent Control Legislation. The lower appellate Court affirmed the same, and this Court does not find any basis to interfere with it.

It is true that the tenancy commenced with a rent of less than Rs. 1,000/- per month, and that the respondent initiated proceedings under the Act, for eviction of the appellants. The fact, however, remains that the rent was enhanced to Rs. 1,100/-, in terms of the agreement and with the consent of the parties. That being so, the premises stood removed from the operation of the Act, with effect from the date on which the rent was agreed by the parties to be more than Rs. 1,000/-. Hence, it cannot be said that the suit is not maintainable.

No defect or infirmity was pointed out in the quit notice, marked as Ex.A-6, issued u/s 106 of the Transfer, of Property Act. Therefore, the tenancy stood terminated. Much was said about the competency of the Court to award mesne profits, duly inviting the attention of this Court to the definition of Mesne Profits, under Sub-section (12) of Section 2 C.P.C. It was urged that the possession of a lessee, who continues in premises after termination, becomes a tenant at sufferance, as distinguished from a tenant holding over, and his possession cannot be branded as unlawful. It is also pointed that the occasion to award mesne profits arises, only when the possession is unlawful. It is difficult to accept the contention in such a broad form. It is true that the possession of a tenant at sufferance cannot be branded as unlawful, in comparison to that of a trespasser. That does not mean that the lessor becomes disentitled to recover mesne profits, even after the lease is terminated, and such termination is upheld by the Court.

As regards the grant of mesne profits, the trial Court had undertaken extensive discussion and fixed the same at Rs. 15,000/-, for the period up to the date of filing of the suit. For the remaining period, it was left to be determined, as and when an application is filed by the appellants. No serious infirmity is pointed out in that process. This Court does not find any basis to interfere with the concurrent findings recorded by the Courts below. The second appeal is accordingly dismissed.

The learned Counsel for the appellants submits that his clients need sufficient time to acquire alternative premises. He also submits that the appellants are taking steps to get the possession of their own premises, which are now under the occupation of a tenant. The learned Counsel for the respondent opposed the same. However, taking into account, the fact that the lease was in existence for the past more than 20 years, the appellants are granted time till 15.5.2006. In all other respects, the decree passed by the trial Court shall hold good. There shall be no order as to costs.