IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD THURSDAY, THE SIXTH DAY OF AUGUST TWO THOUSAND AND NINE PRESENT THE HON'BLE SRI JUSTICE P.SWAROOP REDDY CITY CIVIL COURT APPEAL NO : 42 of 2001 (Appeal under section 96 of C.P.C. against the Judgment and decree dated:26.07.2000 in O.S.NO : 1403 of 1995 on the file of the Court of the I Senior Civil Judge, City Civil Court, Hyderabad Between: Punjab National Bank rep. by Senior Manager Malakpet Branch, Hyderabad ..... APPELLANT AND Dr. Amrutha D/o late Sri Patangi 15-1-440, Feelkhana, Hyderabad .....RESPONDENT Counsel for the Appellant:MR.A.H.RAMA KRISHNA RAO Counsel for the Respondent No.: MR.M.P.UGLE The Court made the following : PSR, J. C.C.C.A.No. 42 of 2001 J u d g m e n t: This appeal is filed against the judgment and decree passed in O.S.No. 1403 of 1995 by the learned I Senior Civil Judge, City Civil Court, Hyderabad. The defendant is the appellant herein. The parties herein would be referred to as they were arrayed before the trial court. 2. The facts, as per the plaint, are as follows: The plaintiff is the owner of premises bearing No.16-11-1/5/A, Saleemnagar colony, Malakpet, Hyderabad. The defendant bank obtained the premises on lease from its previous owner under two registered lease deeds dated: 22.7.1985. On expiry of lease, the plaintiff got issued legal notice on 12.3.1991 terminating the lease, but the defendant replied stating that the lease stood renewed for another five years as per the terms. The extended period of lease also expired by 15.2.1995. The defendant who was bound to deliver the vacant possession on 15.2.1995, without any notice, as the lease expired by efflux of time, failed to do so, in spite of reminder dated:15.2.1995. The plaintiff got issued legal notice on1.8.1995 demanding vacant possession with mesne profits at the rate of Rs.30,000.00 per month, as the defendant continued in unlawful possession. The plaintiff sent another notice on 20.9.1995 demanding the defendant to vacate the premises and handover vacant possession, apart from paying damages @ Rs.30,000.00 per month. The schedule premises is located on national highway in commercial area and fetches more than Rs.30,000.00 per month and that the defendant committed acts of waste. 3. The defendant filed its written statement contending that the suit schedule premises would not fetch rent of Rs.30,000.00 per month; the defendant is running a bank under the registered lease deed; the defendant was allowed to continue lease of the premises till such time of removing its strong room door, furniture, fixtures fitting etc., installed at their costs. The plaintiff had accepted monthly rents without any protest even after 15.2.1995. The claim of the plaintiff for damages @ Rs.30,000.00 per month is illegal. 4. On the basis of the above pleadings, the following issues were settled for trial: i) Whether there is valid termination of lease? ii) Whether the plaintiff is entitled for damages, claimed for use and occupation? iii) Whether the plaintiff lost her right by receiving rents after 15.2.1995? iv) To what relief? 5. On behalf of the plaintiff, PW-1 was examined and Exs A-1 to A-9 and Ex C-1, the report of the commissioner was marked and on behalf of the defendant, DW-1 was examined. 10. The learned trial judge decreed the suit for delivery of possession and also for damages @ Rs.12,080.00 per month from 16.2.1995 to 31.7.2000, as the plaintiff did not get possession of the premises till that day and it was with the Receiver and that the defendant did not initiate any steps to deliver possession of the suit premises from the month of October, 1995, though shifted the business to some other premises. The Receiver was directed to deliver possession of the suit premises to the plaintiff by 1.8.2000. 11. Now the contention of the appellant/defendant is that as the plaintiff received rents without any protest subsequent to expiry of lease period, she is not entitled for damages and that she is not entitled for any rent or damages, after the expiry of the lease, as the premises were under the custody of the Receiver and that there was no notice under section 106 of the Transfer of Property Act. 12. The contention of the respondent/plaintiff is that the premises was asked to be delivered after expiry of the written lease period, when the defendant was bound to vacate the same. The suit premises is located in commercial area on the main road in Malakpet of Hyderabad City, the rental value in the area is very high and the damages awarded @ Rs.12,080.00 per month is very low and that she is entitled for rents till the Commissioner delivered the possession to her. 13. Now, the point for consideration is whether there any grounds for allowing the appeal? 14. Most of the facts are not in dispute. The fact that the plaintiff is the owner and the defendant is the tenant, who continued the tenancy from its previous owner and the lease period expired on 15.2.1990; thereafter also the defendant continued in possession, the fact that the suit premises is located in a commercial area and it was used for commercial transactions like running of a bank. In the above circumstances, the damages awarded @ Rs.12,080.00 double than the rent that was fixed long-long back cannot be said to be on high side and when the defendant did not vacate the premises after expiry of the lease period, the defendant is liable for payment of the same. Though certain contentions like improper maintenance and causing damages etc., are raised by either side, those are not much important, as the main question being with regard to the liability of the defendant for the damages, till possession was delivered. As far as damages awarded @ Rs.12,080.00 is concerned, as already referred, the plaintiff is entitled for the damages @ Rs.12,080.00 per month. 15. With regard to the period for which the plaintiff is entitled for damages is concerned, the possession was given to the Court Receiver on 29.11.1998, as referred to in paragraph-17 of the judgment of the trial court and the possession was not delivered to the plaintiff and that there is no dispute about the date of the Receiver coming into possession of the schedule premises. When the possession was delivered to the Receiver, apparently, neither the plaintiff nor the defendant have taken any steps for delivery of the premises. There is no material to show that the plaintiff took steps for taking delivery of the possession from the Court Receiver nor the defendant had taken steps to effect formal delivery of possession to the plaintiff. 16. It is the contention of the learned counsel for the plaintiff that it was the duty of the court to deliver possession of the property to the plaintiff. But without taking any steps from either side, there was no possibility for the court to take suo motu action. However,though the court ought to have taken some steps in that direction, it may not be possible for the court to monitor such things. As there was failure take delivery of possession from the Court Receiver, the defendant cannot be burdened with payment of damages from the day on which the premises was handed over to the Receiver. As such I hold that the plaintiff would be entitled for damages @ Rs.12,080.00 per month till 29.11.1998 only. 17. The learned counsel appearing for the defendant also raised the question of costs, contending that costs awarded are on on high side. I hold that the costs awarded by the trial court shall be in accordance with the Advocate Fee Rules and not as claimed by the plaintiff. 18. In the result, the appeal is disposed of holding that the plaintiff is entitled for damages @ Rs.12,080.00 per month from 15.2.1995 to 29.11.1998 only and the plaintiff is entitled for the proportionate costs through out, as per Advocate Fee Rules. _____________________ P. SWAROOP RDDY, J. Dated:06---08---2009. *BVS