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Judgment
Dr. B. Siva Sankara Rao, J.—The defendants to the suit in O.S. No. 1667 of 1987 having been aggrieved by the judgment dated 31-01-1991 passed by the learned II Additional Judge, City Civil Courts, Hyderabad, in the suit filed by one B. Sita Ram Reddy against them for eviction from the plaint schedule property (house bearing No. 3-6-429, Himayat Nagar, Hyderabad), for recovery of Rs. 15,000/- p.m. towards damages from 01-07-1987 till date of recovery of possession with interest @ 18% p.a., for costs and etc., reliefs; on contest, that was since decreed directing the defendants to vacate the said suit premises and put plaintiff in possession of the same and to pay to the plaintiff the balance remained after deducting whatever paid out of Rs. 12,000/- p.m. from 11-03-1987 to 30-06-1987 as rent and damages thereafter at such rate till date of suit, to pay the balance out of it at such rate remained unpaid and also at the same rate damages from date of suit till delivery of property less any amounts paid out of it. Before deciding the appeal lis with reference to the contentions in the grounds of appeal as well as the contentions from the claim of the respondent-plaintiff from the points for determination being formulated, the factual background of the case of the parties at the trial Court in nutshell is the following;
a) The plaintiffs case in nutshell is that he purchased the plaint schedule premises abutting Main Road, Himayat Nagar, which is an R.C.C. building, D. No. 3-6-429, consisting of ground and 1st floor and he is in occupation of the entire 1st floor and a small room of the ground floor with a verandah, passage and the staircase room and the remaining ground floor that was shown in red colour in the plan enclosed let out to the Indian Statistical Institute for 3 years with effect from 01-09-1981 on rent of Rs. 5,250/- p.m. and later till December, 1986, at enhanced rent of Rs. 6,500/- p.m. and after their vacation, plaintiff carried out repairs and remodeled by providing modern amenities in the 1st floor with 3 bathrooms, godown, glass and decolam cabinets and having set apart 4 rooms of the ground floor shown in green colour of the plan for his accommodation, in March, 1987, let out remaining portion of ground floor shown in yellow colour of the plan and also the entire 1st floor of the building to the Government of Andhra Pradesh, Technical Teacher''s Training Institute Extension Center (3rd defendant) and they occupied the building on 11-03-1987; that he provided a bore well with electrical motor and overhead tank and the rent was payable as being fixed by the Government as per market value of prevailing rents of the locality not below Rs. 12,000/- p.m. for the occupied area of 6,000 square feet apart from open space; however to the plaintiffs surprise, the Government fixed Rs. 5,800/- p.m. for the entire lease premises by Memo No. 207/Accomm/A2/87-e dated 13-04-1987 which is meticulously a low rent and far below the rent paid by earlier tenant a Central Government Institute even for less area and with no modern amenities as are; that after received said communication, he demanded the Government to fix the rent with a minimum of Rs. 12,000/- p.m. for which the 2nd defendant by letter No. K3/710/87 dated 27-04-1987 addressed Secretary, General Administration (Accommodation) Department, to reconsider and review the rent amount by increase which was with no action even from the State Government (1st defendant) and there was no any rental agreement executed between plaintiff and defendants and it was thereby a tenancy of month to month since not governed by the provisions of Andhra Pradesh Rent Control Act, 1960, and thereby plaintiff with no option was constrained to terminate the lease on the expiry of the month of June, 1987, by registered notice calling defendants to vacate and deliver possession to plaintiff of the suit premises by 01-07-1987 and defendants, despite served with notice, failed to comply nor increased the rent and hence the suit for eviction and also for recovery of the rent and damages.
b) The elaborate written statement filed by defendants 2 and 3 adopted by 1st defendant in sum and substance is that, the building claimed by plaintiff as his own consists of 2 floors i.e. ground and 1st floor offered to lease out except 4 rooms of the ground floor of it occupied by plaintiff and in March, 1987, saying that the plinth area is 2,500 square feet of the leasehold premises to locate the office of 3rd defendant on rent to be fixed by the Government (1st defendant) with no any fixation of rent and plaintiff never demanded any specified amount as rent; as by letter dated 21-02-1987, he agreed to receive the rents as fixed by the Government and there was no any demand to execute lease deed for the premises let out that was occupied by 3rd defendant on 11-03-1987 and as such, it is not a tenancy of month to month as claimed and there were no terms and conditions fixed between the parties at the time of said letting of the suit premises and as such, plaintiff is estopped from alleging that at the time when possession of the suit premises let out and given to defendants 2 and 3, the prevailing rent was not less than Rs. 12,000/- p.m. or defendants are liable accordingly to pay or the rent fixed by the Government at Rs. 5,800/- p.m. for the suit premises is meticulously low and far below market rate of rent prevailing or even 60% of it earlier let out to the Statistical Department for a rent of Rs. 6,500/- p.m. from 1981 to 1986, that the said averments are untenable and even plaintiff stated the plinth area in the ground floor is 2,500 and 1st floor is also 2,500 square feet and having been agreed to receive the rent as fixed by the Government (1st defendant) from the tenants defendants 2 and 3, plaintiff has no right to claim at Rs. 12,000/- p.m. as rent from the date of occupation by 3rd defendant as lessee, but for to receive Rs. 5,800/- p.m. reasonably fixed by the Government by Memo No. 207/Accomm/A2/87-e dated 13-04-1987; that the lack of any written agreement of lease when there is an understanding does not make the tenancy month to month; the contention that the suit premises is not governed by Andhra Pradesh Rent Control Act is not correct and the suit for eviction is not maintainable much less based on the alleged notice dated 09-06-1987 to determine the tenancy which demand is otherwise illegal and contrary to law and there is no cause of action to file suit, that alleged cause of action is not correct; that for the suit notice u/s 80 C.P.C. dated 02-07-1987, defendants felt no need to reply as it is not in conformity with law and as such, the suit for eviction as well as the claim for recovery of amount at Rs. 12,000/- p.m. from 11-03-1987 to 30-06-1987 and later at Rs. 15,000/- p.m. till date of eviction and delivery of possession are untenable; that the value of suit and court fee paid are not correct, that plaintiff is not entitled to claim any damages other than what was fixed by the Government much less at Rs. 12,000/- p.m. till date of suit and later Rs. 15,000/- p.m. till date of possession and plaintiff also not entitled to any interest much less at 18% p.a. on so called amounts due, that the suit is not properly framed and not maintainable, thereby sought for dismissal of the suit saying the rent fixed of Rs. 5,800/- p.m. is more than market value of the old building of more than 30 years life in the locality from rents prevailing and hence to dismiss the suit claim.
c) From said pleadings, the trial Court framed four issues and one more additional issue as follows:
i) Whether the plaintiff is entitled for a decree of possession of the suit schedule property by evicting defendants 1 and 2 therefrom?
ii) Whether the plaintiff is entitled for monthly rents of Rs. 12,000/- p.m. from 11-03-1987 to 30-06-1987 instead of Rs. 5,800/- as fixed by Government in respect of suit schedule property?
iii) Whether plaintiff is entitled for damages @ Rs. 15,000/- p.m. from 01-07-1987 onwards up to recovery of possession?
iv) To what relief the parties are entitled to?
Additional Issue:
v) Whether the suit is bad for want of notice u/s 106 of T.P. Act?
d) From the above pleadings and to answer the above issues in deciding the lis in the course of trial, on behalf of plaintiff, he was examined as P.W. 1 and got examined P.W. 2 one Dr. V.C.S. Sharma and relied upon 19 documents marked as Exs. A1 to A19 viz., Ex. A1 Memo No. 207/Accomm-A2/87-1 dated 05-03-1987; Ex. A2 Memo No. 207/Accomm-A2/87-3 dated 13-04-1987; Ex. A3 Representation dated 22-04-1987; Ex. A4 Letter No. K3/710/87 dated 27-04-1987; Ex. A5 Registered notice u/s 106 of T.P. Act with acknowledgements; Exs. A6 to A8 Postal acknowledgements; Ex. A9 Copy of letter dated 15-06-1987; Ex. A10 Lawyer notice dated 02-07-1987; Exs. A11 to A13 Postal acknowledgements; Exs. A14 & A15 Sketch plans of the suit premises; Exs. A16 & A17 Photos of suit premises; Ex. A18 Original letter written by Indian Statistical Institute to plaintiff dated 03-09-1984 and Ex. A19 Certified copy of lease agreement dated 22-07-1989 and on behalf of defendants, D.W. 1 K. Abraham and G. Guruva Reddy D.W. 2 were examined and defendants relied upon 5 documents marked as Exs. B1 to B5 viz., Ex. B1 Original letter of plaintiff dated 22-01-1987; Ex. B2 Report of Zonal Inspector for rent fixation (original) dated 31-03-1987; Ex. B3 Memo No. 207/Acco:A2/87-1 dated 05-03-1987; Ex. B4 Memo No. 207/Acco:A2/87-3 and Ex. B5 Copy of G.O.Ms. No. 1302 Govt. (P.W. D.) dated 18-05-1966.
e) From said pleadings and evidence placed on record and on hearing both sides, the trial Court decreed the suit for the reliefs referred above with its finding that admittedly, 3rd defendant occupied the suit premises on 11-03-1987 as per Ex. A1 = Ex. B3 Memo No. 207/Accomm-A2/87-1 and there was no rent agreement in writing between the parties stipulating the rent and other terms and conditions and for the notice of plaintiff dated 09-06-1987 marked as Ex. A5 referred as u/s 106 T.P. Act terminating the lease from end of June, 1987, and to deliver the suit premises by 01-07-1987 saying the tenancy is month to month, there was no any reply and it is not even open to attack said notice as not legal or malafide and as such, the tenancy is terminated as per the said notice duly issued and received by defendants covered by Exs. A6 to A8 acknowledgements and the Director of Technical Education (2nd defendant) letter dated 15-06-1987 (Ex. A9) even refers to the receipt of Ex. A5 notice with more than 15 days prior to the end of June, 1987, that complies with the 15 days notice u/s 106 T.P. Act to say the notice is valid and legal and once the tenancy is terminated, the defendants have to vacate. The other finding regarding amounts claimed is that the amount fixed by the Government at Rs. 5,800/- p.m. as per Ex. A2 = Ex. B4 Memo No. 207/Accomm-A/87-3 dated 13-04-1987 is less than market rate of rent prevailing in the locality as the premises is situated Main Road, Himayat Nagar, a prime locality and merely because the Government taken the private premises on lease, it has no right to fix rent as it likes, but for to fix the market rate of prevailing rents of the locality and plaintiff from the beginning did not accept the amount fixed at Rs. 5,800/- as reasonable and before fixing the rent, the premises were occupied by requesting plaintiff under Ex. A1 request letter dated 05-03-1987 and Ex. A3 is the consent of plaintiff to 3rd defendant dated 22-04-1987 who agreed to lease out the schedule premises subject to determination of rent by Government and it must be at the market rate prevailing in the locality and thereby even- plaintiff persuaded the Government to fix Rs. 12,000/- p.m. for the accommodation from the market rate prevailing is at Rs. 3/- per square feet, whereas the Government fixed the rent below Rs. 1/- per square feet. It was further discussed with reference to Ex. A18 letter of Indian Statistical Institute to plaintiff on dated 03-09-1984 enhancing the rent of suit building portion from Rs. 5,250/- to Rs. 6,500/- p.m. with effect from 01-08-1984 and if that is compared with the tenancy between plaintiff and defendant commenced in 1987, the rent fixed of Rs. 5,800/- is low for the let out premises and there is evidence also from P.W. 2 who let out the premises to Vijaya Bank of 1,650 square feet of Himayat Nagar for a rent of Rs. 2.50/- per square feet p.m. which premises is also near to the suit locality. What D.W. 2 D.E.E., R&B, deposed is he worked earlier as Zonal Inspector (Technical) in G.A.D. and as per the directions to inspect the suit building and assess rental value, he inspected and calculated as in Ex. B2 based on G.O.Ms. No. 1302 dated 18-05-2006 (Ex. B5) and he worked out the plinth area rates basing on the rate as of 1955 and adding cost of index of the present years from which the rent worked out to Rs. 5,834-50/-, thereby rounded to Rs. 5,800/- and fixed accordingly on plinth area basis for the plaintiff area 6,076 square feet, which is as per market value and denied the suggestion of the same is utterly low to the market value, that when a Central Government limb, the Statistical Institute, occupied the premises of 2,500 square feet and paid rent under Ex. A18 by enhancing from 01-08-1984 at Rs. 6,500/- p.m., it comes to Rs. 2.60/- per square feet which they paid till they vacated the premises under Ex. A18 notice dated 02-09-1987 and therefrom for the suit premises covered by Ex. B2 for the plinth area of 6,076 square feet even of Rs. 2/- per square feet which is above Rs. 12,000/- to say what the plaintiff claimed at Rs. 12,000/- p.m. from the date of occupation by defendants of the suit premises on 11-03-1987 till 30-06-1987 and thereafter also from 01-07-1987 towards damages at Rs. 12,000/- p.m. as claimed which is reasonable in so decreeing by directing to pay deficit court fees thereon and rest of the suit claim was held dismissed with no costs. There is nothing to show any award of interest thereon even from date of decree and judgment of said sums adjudged and also for future amounts till delivery of possession for any late payments.
a) It is the said decree and judgment with said conclusions in the findings of the trial Court impugned in the appeal with the contentions in nutshell in the grounds of appeal as well as the oral contentions of the appellants during hearing the appeal that the decree and judgment of the trial Court is contrary to law, weight of evidence, probabilities of the case, outcome of wrong conclusions, without saying the fact that to fix at Rs. 12,000/- p.m. towards rent for the premises from date of occupation till date of suit, there is no lease deed or stipulated term at such rate and the trial judge should have seen having agreed by plaintiff to abide by the rent fixed by Government for the premises that was fixed reasonably at Rs. 5,800/- p.m. that should have been accepted for nothing to enhance at Rs. 12,000/- p.m. even till date of suit much less thereafter to award any damages at Rs. 15,000/- p.m. and there is no valid quit notice u/s 106 of T.P. Act that was missed note of by the learned trial judge and the trial judge did not properly appreciate the evidence of D.Ws. 1 and 2 which show the rent fixed at Rs. 5,800/- p.m. is as per the rules and instructions in force by following the norms and in providing of bore-well with electrical motor subsequently by plaintiff is no ground to enhance the rent much less to say at Rs. 12,000/- p.m. to fix by the Court and the trial judge also went wrong in relying upon the evidence of P.W. 2 regarding letting out his premises in the absence of clear correlation to the premises and the locality and thereby sought for setting aside the trial Court''s decree and judgment by dismissing the suit with costs throughout.
b) Whereas it is the contention of the plaintiff-respondent in opposing the appeal claim and in support of the suit claim that the trial Court having appreciated the evidence on record in right perspective arrived the conclusion in fixing the rent and also in fixing damages and even in its finding of the quit notice u/s 106 is valid and thereby, the tenancy is terminated in ordering eviction and to pay rent and damages and thereby for this Court while sitting in appeal even from re-appreciation of evidence on facts from the record with application of law, there is nothing to interfere and hence to dismiss the appeal with costs.
c) As per the rival contentions in the course of hearing the appeal to decide the lis covered by the appeal, the points that arise to formulate are the following;
i) Whether there is a valid quit notice by terminating the lease for filing of the suit for eviction and for recovery of rent and damages claim of the suit?
ii) Whether plaintiff once agreed with defendants to abide by the rent being fixed by the Government in allowing the premises to occupy, is it open to plaintiff to say the rent of Rs. 5,800/- p.m. fixed is unreasonable or utterly low much less to make a claim at enhanced rate at Rs. 12,000/- p.m. with no written stipulation to that, so also to award any damages at Rs. 15,000/- p.m.?
iii) If so, whether the decree and judgment of the trial Court in ordering eviction and in payment of rent from 11-03-1987 to date of suit 30-06-1987 at Rs. 12,000/- p.m. and damages thereafter till delivery of possession at Rs. 15,000/- p.m. with costs of the suit is unsustainable and requires interference by this Court while sitting in appeal and if so, to what extent and with what findings?
iv) To what result?
As the points 1 to 3 formulated above for determination of the lis covered by the appeal are inter-related in deciding the same from re-appreciation of the evidence on record on facts with reference to law from entire matter is at large; for the sake of convenience while referring the parties as arrayed before trial Court, all the three points are taken up together to decide.
Before discussing the facts, it is just to refer Sections 106 & 111 of the Transfer of Property Act and the proposition of law thereunder.
5(a) Section 106 of the A speaks duration of certain leases in absence of written contract or local usage:--
In the absence of contract or local law or usage to the contrary, a lease of immovable property for agricultural or manufacturing purposes shall be deemed to be a lease from year to year, terminable, on the part of either lessor or lessee, by six months notice; and a lease of immovable property for any other purpose shall be deemed to be a lease from month to month, terminable, on the part of either lessor or lessee, by 15 days notice.
Every notice under this Section must be in writing, signed by or on behalf of the person giving it, and either be sent by post to the party who is intended to be bound by it or be tendered or delivered personally to such party, or to one of his family or servants at his residence, or (if such tender or delivery is not practicable) affix to a conspicuous part of the property. It is by virtue of the amendment to Section 106 of the Transfer of Property Act, 1882, by Act 3 of 2003, Section 106 reads as follows;
In the absence of a contract or local or usage to the contrary, a lease of immovable property for agricultural or manufacturing purposes shall be deemed to be a lease from year to year, terminable, on the part of either lessor or lessee, by six month''s notice; and a lease of immovable property for any other purpose shall be deemed to be a lease from month to month, terminable, on the part of either lessor or lessee, by fifteen days notice.
Notwithstanding anything contained in any other law for the time being in force, the period mentioned in sub-section (1) shall commence from the date of receipt of notice.
A notice-under sub-section (1) shall not be deemed to be invalid merely because the period mentioned therein falls short of the period specified under that sub-section, where as suit or proceeding is filed after the expiry of the period mentioned in that sub-section.
Every notice under sub-section (1) must be in writing, signed by or on behalf of the person giving it, and either be sent by post to the party who is intended to be bound by it or be tendered or delivered personally to such party, or to one of his family or servants at his residence, or (if such tender or delivery is not practicable) affixed to a conspicuous part of the property.
5 (b) Further, as per Section 111 of the Transfer of Property Act which speaks of determination of lease, a lease of immovable property determines -
a) By efflux of the time limited thereby,
b) Where such time is limited conditionally on the happening of some event - by the happening of such event,
c) Where the interest of the lessor in the property terminates on, or his power to dispose of the same extends only to, the happening of any event - by the happening of such event,
d) In case the interests of the lessee and the lessor in the whole of the property become vested at the same time in one person in the same right,
e) By the express surrender, that is to say, in case the lessee yields up his interest under the lease to the lessor, by mutual agreement between them,
f) By implead surrender,
g) By forfeiture; that is to say, 1) in case the lessee breaks an express condition which provides that, on breach thereof, the lessor may re-enter; or 2) in case the lessee renounces his character as such by setting up a title in a third person or by claiming title in himself; or 3) the lessee is adjudicated an insolvent and the lease provides that the lessor may re-enter on the happening of such event; and in any of these cases the lessor or his transferee gives notice in writing to the lessee of his intention to determine the lease.
h) On the expiration of a notice to determine the lease, or to quit, or of intention to quit, the property leased, duly given by one party to the other.
5 (c) It is not the case that the Andhra Pradesh Lease, Rent and Eviction Control Act, 1960, is applicable to the lease to say the lease is a statutory lease governed by the provisions of the Act as a special legislation and not governed by the contract under the provisions of the general law of Transfer of Property Act. When such is the case, this trial Court has jurisdiction to decide the lis with reference to the provisions of the Transfer of Property Act. Further, once the Transfer of Property Act provisions are applicable, admittedly from, there is no written lease but for oral understanding and that it is pursuant to the oral understanding based on the letter of defendants 1 and 2, plaintiff permitted to occupy the premises as tenant by 3rd defendant, a limb of defendants 1 and 2, which is covered by Ex. A1 dated 05-03-1987 by allotting the premises subject to condition of the landlord agreeing to the rent to be fixed by the Government in due course. The 2nd defendant was required to take over possession of the building from the landlord to locate office of 3rd defendant. Thus, the lease is oral and not for any agricultural or manufacturing purposes and as such, within the meaning of Section 106 of Transfer of Property Act referred above, it is a lease from month to month and as per Section 111 of the Transfer of Property Act referred above, it can be terminable by 15 days notice for nothing shown of any special provisions or special concession to the Government or its offices of any limb occupied as tenant.
5 (d) In this regard, the law is also well settled that no notice to quit necessary before filing a suit for recovery of possession of the demised premises once there is a determination of lease by efflux of time vide decision R.V. Bhupal Prasad Vs. Saleha Begum alias Shehensha Begum and Others, ). Further, in Samir Mukherjee Vs. Davinder K. Bajaj and Others, it was held that Sections 106 and 107 of the Transfer of Property Act are to be read harmoniously together. In case of an oral lease, there can be no even presumption of the same as for manufacturing purpose of year to year to draw and as such, it is for month to month and 15 days notice issued terminating the lease is valid. Thus, the quit notice is valid and the lease is terminated and after end of 30-06-1987 from Ex. A5 notice, there is no tenancy in subsistence and the defendants'' continuation is not as tenants but for as tenants by sufferance and cannot even contend as tenants holding over within the meaning of Section 116 of the Transfer of Property Act. Thus, so far as the said finding of the trial Court that there is no tenancy after termination of the lease with 15 days notice covered by Ex. A5 served on the defendants after end of June, 1987, holds good and there is nothing to interfere for this Court while sitting in appeal. The same proposition of law is also substantiated from another expression of the Apex Court in Smt. Shanti Devi Vs. Amal Kumar Banerjee, holding that when tenancy is terminated by efflux of time before date of suit, the question of giving quit notice before filing suit does not arise and not even necessary.
Now from this, coming to the other facts on record to decide as to whether the rent fixed of Rs. 5,800/- p.m. requires any change till the lease is terminated by Ex. A5 quit notice apart from liability of damages thereafter and the quit notice concerned, Ex. A2 is Government Memo by proceedings dated 13-04-1987 stating that for the building occupied by 3rd defendant, the rent is fixed at Rs. 5,800/- p.m. exclusive of water and electricity charges that being paid from the date of occupation. Admittedly, it was occupied in the month of March, 1987, prior to the fixation of rent and from reading of Exs. A1 and A2 i.e. plaintiff (landlord) agreed to the rent to be fixed by Government in due course while permitting occupation. When such is the case, it is a bilateral contract and not a unilateral contract and plaintiff cannot say the rent fixed is a unilateral decision, not binding on him, but for to take legal recourse by terminating the lease if not willing to permit at the rate of rent fixed by the Government as per the bilateral understanding more particularly, from the wording of Section 108 of the Transfer of Property Act. Ex. A3 is letter of plaintiff dated 22-04-1987 stating that he agreed and put 3rd defendant in possession of the house premises pending determination of the rent by the Government and the understanding that the Government adopts norms in assessing prevailing market rate from location of the premises. He contended in the notice as in the plaint that it would fetch at Rs. 2.75/- per square feet and the rent be above Rs. 12,000/- p.m. which he expected of the Government was to fix; however at an amount of Rs. 5,800/-, the Government fixed for the premises of 6,000 square feet which is ridiculously low and no relation to the prevailing rental value of the area and hence to vacate the house by that month end unless to pursue and fix minimum of Rs. 12,000/- p.m. Ex. A4 is letter of 2nd defendant to the Secretary to Government, 1st defendant, informing that the Government fixed rent under Ex. A2 at Rs. 5,800/- ''p.m. and the landlord claims at Rs. 12,000/- p.m. as per Ex. A3 and in fact, the landlord agreed to abide by the decision of the Government in fixation of rent, however now feels it is utterly low, hence to review and reconsider and examine if the rent can be raised to a satisfactory level. Thus from Ex. A4, it no way mean any agreement to enhance but for to review any scope to enhance and that no way help plaintiff, much less to contend by deviating from the original understanding bilaterally to abide by the rent being fixed by the Government that is also reiterated in Ex. A4 apart from Exs. A1 and A2 and even the letter of plaintiff Ex. A3. Ex. A5 is plaintiffs legal notice dated 09-06-1987 saying, earlier the limb of Central Government, Indian Statistical Institute, from 1984 to 1986 paid rent of Rs. 6,500/- to part of the premises and later even improvements made to the premises and the rent fixed of Rs. 5,800/- for the 6,000 square feet let out to defendants is utterly low and there was no any lease deed even but for oral understanding and thereby, it is a lease of month to month, hence terminates the lease by virtue of this notice to vacate after expiry of the month i.e. by end of July, 1987. Exs. A6 to A8 are acknowledgements of 11-06-1987 of defendants to say they received the notices and from receipt of the notices, there is a clear 15 days time in terminating the lease to vacate by month end to say the said notice is valid and legally issued and not defective. Ex. A9 is the letter similar to Ex. A4 of 2nd defendant to 1st defendant, Secretary to Government, in similar lines and Ex. A10 is another Section 80 C.P.C. notice of plaintiff to defendants dated 02-07-1987 with the prayers for eviction and recovery of possession of the premises covered by oral lease and for recovery of rent at Rs. 12,000/- p.m. from 11-03-1987 to end of June, 1987, and damages at Rs. 15,000/- p.m. from 01-07-1987 till delivery of possession and for interest thereon at 18% p.a. and for costs as prayed for in the plaint of the lis referred above. The notice is served on defendants under Exs. A11 to A13. Ex. A14 is correspondence between plaintiff and Statistical Department of India of lease of the premises sanctioning enhancement of rent from Rs. 5,250/- to Rs. 6,500/- with effect from 01-08-1984 till they vacate and shift to their own building. The area covered by the premises is not mentioned therein but for mentioning as if entire building and as such, from this letter without showing the area covered thereunder, it is difficult to arrive at a conclusion. Exs. A16 and A17 are photographs of the suit premises. Ex. A18 is nothing new as it is part of Ex. A14 referred above. Ex. A19 and evidence of P.W. 2 is relating to letting out the premises nearby to the suit schedule premises to Vijaya Bank from September, 1987, at Rs. 2.50/- per square feet of 1,650 square feet situated at 1st floor of Satya X-ray Building, D. No. 3-6-140/5B, Himayat Nagar, for the total rent Rs. 4,125/- p.m. Even from this coming to the suit schedule premises, rent fixed of Rs. 5,800/- in March, 1987 to 6,000 square feet plinth area can be said to be low subject to what are the amenities and what is the age of construction of building respectively to consider and by keeping in mind the fact that the small area value of square feet at Rs. 2.50/- cannot be considered for the large area with same rate of Rs. 2.50/- per square feet but for proportionately to reduce the square feet rental value from the large extent of the area. No doubt even therefrom, it can be said Rs. 5,800/- worked out nearly Rs. 1/- per square feet only. However, the fact remains that there was already an understanding arrived to abide by the Government rent that was being fixed by the Government as per its norms and the evidence of D.Ws. 1 and 2 is clear that they fixed the rent as per the norms apart from the correspondence covered by the above referred documents. When such is the case, the plaintiff has no right to ask for enhancement of rent in the suit during pendency of the lease but for damages as per market value of prevailing rent after termination of the lease if unwilling to continue the defendants by treating them as tenants by sufferance under law. Therefore, so far as the finding of the trial Court in fixing rent at Rs. 12,000/- p.m. as against Rs. 5,800/- p.m. outcome of the bilateral contract from date of occupation of the premises on 11-03-1987 till the termination of tenancy by Ex. A5 Quit Notice by 30-06-1987 for 3 months 20 days is unsustainable and liable to be set aside as for that period but for the agreed rent, there is no question of any damages for the lease was in subsistence.
From the above, the 3rd defendant''s continuation after the quit notice covered by Ex. A5 terminated the lease with effect from 30-06-1987 to say from 01-07-1987, the defendants are continuing as tenants by sufferance. It is apart from the fact that a tenancy from month to month terminates by end of said month and any oral continuation on beginning of next month also terminates by that month end by efflux of time and no prior notice to terminate the lease and to quit u/s 111(a) read with 106 of Transfer of Property Act is necessary for the lease terminated by efflux of time from the notice referred above already given terminating the lease and the lease is terminated and defendants are tenants by sufferance from 01-07-1987, thus nothing better to unauthorized occupants to make them liable for eviction and damages as laid down in The Hindustan Petroleum Corporation Ltd., Chairman and Managing Director Vs. Khwaja Asadullah Baig and Others, In this decision, it was held that we are unable to agree with the learned counsel for appellant that the appellant being a tenant at sufferance need not pay anything more than the rent stipulated under the lease. It is fairly well settled that in a case of tenancy at sufferance, there is no relationship of land lord and tenant. Such possession, although it may amount to judicial possession and the person in possession cannot be evicted except by due process of law, it is not on the same footing as a tenant at will. M.N. Venkatachalaiah, J., as he then was, sitting in a Division Bench of the Karnataka High Court explained the concept of tenancy at sufferance in the following words (vide M/s. Sudarshan Trading Co. Ltd. v. L.D. Souza)-"If, after the expiry of the period of lease or after its determination, a tenant merely holds over without the landlords'' consent there is no tenancy of any kind at all. If in such case, the tenant continues in possession without landlord''s consent, he becomes what in English law is called a ''tenant by sufferance''. This is really no tenancy at all in the strict sense and requires no notice to determine it. The expression being merely a fiction to avoid the continuance of possession operating as a trespass. It is different from the concept of a tenancy at will, which arises by implication of law in certain cases of permissive possession. No notice is necessary to terminate a tenancy at sufferance. But, the case of tenancy by holding over is different and is governed by the provisions of Section 116 T.P. Act. Tenancy by holding-over is a creature of a bilateral, consensual act and does not come into existence by a mere unilateral intendment or declaration of one of the parties". In the case of unlawful possession of a tenant at sufferance, the liability arises ex delicto and he will be liable for damages in the form of mesne profits. Therefore, in ultimate analysis, whether the position of the appellant is that of a trespasser or a tenant at sufferance, it hardly makes any difference as far as the liability of the defendant to compensate".
From the above, even for this trial Court to arrive and fix at Rs. 12,000/- p.m. damages from date of suit or from 01-07-1987 till delivery of possession concerned, admittedly, the suit was so far as rent and damages concerned, valued till 31-08-1987 and not even till date of suit. Even without giving importance to the technicality from what is concluded above, the plaintiff is not entitled to rent above Rs. 5,800/- p.m. for the period from the date of occupation by defendants on 11-03-1987 till the date of terminating the lease 30-06-1987 which comes to the rent amount of only at Rs. 5,800/- p.m. i.e. 2/3rd of Rs. 5,800/- + Rs. 5,800/- x 3 months = Rs. 3,866/- + Rs. 17,400/- = Rs. 21,266/- as concluded above.
7(a) Now, coming to the damages from 01-07-1987, as lease was terminated and defendants were continuing as tenants by sufferance in the eye of law on par with trespassers, the liability for damages that can be arrived at from what is discussed above from the larger extent involved of 6,000 square feet and for the similar extent as per P.W. 2 evidence read with Ex. A19 lease what was paid for 1,650 square feet is Rs. 4,125/-; damages that can be expected if let out as per market value is reasonable from the larger extent involved at Rs. 2.00/- per square feet as claimed by plaintiff to say Rs. 12,000/- x 3 = Rs. 36,000/- and thus, the amount as on the date of suit 23-09-1987 and till the end of the month September, 1987, the amount due from defendants to plaintiff comes to Rs. 36,000 + Rs. 21,266/- = Rs. 57,266/-.
7(b) Coming to the pendent lite damages from date of suit together with interest concerned, the trial Court decreed the suit by decree and judgment dated 31-01-1991 for the months of October, November, December of 1987, for January, 1988, and from 31-01-1988 to 31-01-1991 i.e. 40 months at Rs. 12,000/- p.m. towards damages, it comes to 40 x Rs. 12,000/- = Rs. 4,80,000/-. The total sum as on date of decree and judgment thereby comes to Rs. 4,80,000/- + Rs. 57,266/- = Rs. 5,37,266/- on which the plaintiff has to pay deficit Court fee and out of which after deduction of any amount paid out of it towards rent or damages by defendants to plaintiff, the plaintiff is entitled with interest.
7(c) It is for the reason that as there is no specific wording in the trial Court''s decree and judgment refusing the interest thereon even specifically claimed though u/s 34(2) C.P.C., the omission or silence amounts to refused; that no way prevents the appellate Court to interfere from the appeal without even cross-objections of the plaintiff, for entire matter at large and as held by the Apex Court in D.D.A. and Others Vs. Joginder S. Monga and Others, hat the appellate Court also can award interest or even enhance or reduce the rate of interest within its discretionary power and in that case on facts, from date of suit granted interest till realization at 9% p.a. by taking into consideration of the steep fall in the bank rate of interest, the interest on the said amounts due to the plaintiff from the defendants-appellants at 9% from date of suit till realization will sub-serve the ends of justice.
Next, coming to damages from date of decree and judgment till date of possession, as so far the premises admittedly not delivered and vacated, at Rs. 12,000/- p.m. granted by the Court concerned, it is not sustainable as the remedy of the plaintiff is to file partly final decree applications under Order XX Rule 12 C.P.C. to fix market rate of damages with effect from date of trial Court''s decree, time to time for the fact that there is a gradual increase in the rental values of the premises to fix subject to nature and condition of the premises and its amenities, hence it is left open to the plaintiff to claim future profits by separate application/s. It is for the reasons that in Gopalakrishna Pillai and Others Vs. Meenakshi Ayal and Others, , it was held that in view of Order VII C.P.C., for a claim of past profits, plaintiff must plead cause of action and specifically claim decree for past profits by filing claim and pay Court fee (though as laid down in In Re: Parameswara Pattar, that Court fee payable for past profits need not be on separate valuation but for to pay on aggregate of the primary relief value with value of the past profits claimed). However, with regard to future profits, the plaintiff has since no cause of action as on date of institution of suit, it is not possible to plead cause of action or to value the relief and pay Court fee in respect of future profits. Further, he can obtain relief in respect of future cause of action of future profits in the very suit either under Order XX Rule 12 or Rule 18 C.P.C. by separate application/s and to pay Court fee on ascertained amounts after enquiry. The Court has discretionary power to pass a decree directing an enquiry into future profits and can grant the general relief even it is not asked in the plaint as laid down in Babburu Basavayya and Others Vs. Babburu Guravayya and Another, and AIR 1958 517 . It is needless to say mere omission to grant future profits in the decree passed does not amount to refusal as an independent application for future profits to determine by treating the decree as a preliminary decree or partly final decree can be maintained. It is because there is no any statutory provision much less under Order XX C.P.C. like the one in Section 34(2) C.P.C. of silence or omission in the decree and judgment regarding grant of interest after date of decree amounts to refusal. Accordingly, point Nos. 1 to 3 for consideration are answered. POINT No. 4:
Accordingly and in the result, the appeal is partly allowed as follows:
(i) that while confirming the trial Court''s decree for eviction against the appellants-defendants and in favour of the plaintiff-respondent to the appeal from validity of the quit notice time of 6 months from today is granted to vacate the premises, failing which the plaintiff can execute and recover possession through trial Court or by any other Court to which the decree if at all to transfer for execution subject to Section 39 C.P.C. and also recover costs of execution;
(ii)(a) by awarding an amount of Rs. 21,266/- towards arrears of rent at Rs. 5,800/- p.m. from 11-03-1987 to 30-06-1987 till termination of the lease as per the quit notice with effect from 01-07-1987 and for the period thereafter till the end of September, 1987, from the suit filed on 23-09-1987 by awarding damages for use and occupation at Rs. 12,000/- p.m. for the three months comes to Rs. 36,000/-; total comes to Rs. 57,266/- (Rs. 21,266/- + Rs. 36,000/-) and after deduction of any amount paid out of it towards any rent amount or damages by defendants to plaintiff for the balance together with interest at 9% p.a. from date of suit till date of trial Court''s decree on 31-01-1991 and thereafter till realization;
(ii)(b) by awarding pendent lite damages with effect from 01-10-1987 till the date of decree passed by the trial Court on 31-01-1991 for the 40 months at Rs. 12,000/- p.m. which comes to Rs. 4,80,000/- and after deduction of any amount paid out of it towards rent or damages by defendants to the plaintiff to be entitled by the plaintiff for said balance with interest at 9% p.a. from date of trial Court''s decree on 31-01-1991 till realization i.e. with effect from 01-02-1991 with interest at 9% on said balance;
(iii) so far as future profits after date of trial Court''s decree dated 31-01-1991 concerned, it is granted however to ascertain the sum of what is due, it is left open by directing the plaintiff to make a separate application or applications as the case may be from next date of trial Court''s decree till delivery of possession by defendants or taking of possession after eviction of the defendants through process of law together with interest that is being awarded at reasonable rate and as per the market rate of said damages to be determined on such application on being filed under Order XX Rule 12 C.P.C. and
(iv) There is no order as to costs in the appeal.