THE HON’BLE SRI JUSTICE K.C.BHANU C.C.C.A.NO.102 OF 2007 DATED: 03-06- 2010. Between K.Vinay Reddy … Appellant-Defendant And 1.M.Raja Gopala Rao and another …Respondents-Plaintiffs THE HON’BLE SRI JUSTICE K.C.BHANU C.C.C.A.NO.102 OF 2007 JUDGMENT: This appeal is filed under Section 96 of CPC against the judgment and decree, dated 18-01-2007, in O.S.No.2024 of 2005, on the file of the IV Senior Civil Judge, City Civil Court, Hyderabad. 2. Appellant herein is the defendant and the respondents herein are the plaintiffs in the suit. 3. The plaintiffs filed the suit to direct the defendant to vacate and handover the vacant physical possession of the suit schedule property, to pay Rs.1,32,000/- towards arrears of lease amount and Rs.30/- per Sq.ft per month for the total carpet area of 9000 S.ft. towards mesne profits as damages for use and occupation of the suit schedule premises from 01-10-2005 till the date of delivery of vacant physical possession, to pay damages for the damage caused to the premises and for costs. 4. The averments of the plaint in brief are as follows: The plaintiffs are the joint owners of the suit schedule premises, where the defendant is the tenant. The defendant entered into two lease deeds in respect of suit schedule premises on 07-10-2003 and the period of lease was eleven months commencing from 01-10-2003 on the monthly rent of Rs.30,000/- for each building aggregating to Rs.60,000/- per month. After expiry of the lease period under the lease deeds, the defendant has been paying rent of Rs.33,000/- for each building aggregating to Rs.66,000/- per month. The defendant has been irregular in payment of rent right from the beginning. The defendant has been continuing as a tenant in the suit schedule property on month to month basis since the lease period under the lease deeds, dated 07-10-2003 have already expired and he is tenant holding over the suit schedule property. The defendant was permitted to make alterations to the suit schedule property to suit his needs, but the he made unauthorized constructions without permission of the plaintiffs. The defendant filed O.S.No.1314 of 2005 before the IV Senior Civil Judge, City Civil Court, Hyderabad and obtained ex parte status quo order, dated 25-07-2005 in I.A.501 of 2005. The defendant under the guise of above orders, undertaken constructions of a permanent room on the south west corner of the plot causing damage to the structure and also the nature of the suit schedule property was changed by the said unauthorized constructions. Therefore, plaintiffs got issued notice on 05-09-2005 terminating the tenancy of the defendant w.e.f.30-09-2005, for which the defendant sent a reply with false and untenable allegations and also refused to vacate the suit schedule property. The defendant is liable to pay Rs.1,32,000/-towards the arrears of rent for the months of August and September, 2005 and thereafter at Rs.30/- per Sq. ft for the total area of more than 9000 Sq. ft. towards mesne profits. Hence, the suit. 5. The defendant filed written statement denying the averments of the plaint. It is stated that the plaintiff let out the suit schedule property to him on lease for running a Restaurant by permitting him to make alterations and additions. Accordingly, he spent more than Rs.80 lakhs for the said purpose and the rent was fixed at Rs.16,500/- per portion. The plaintiff, his wife and son used to collect the rent every month from him. The plaintiffs orally agreed to extend the lease for a further period of five years and also agreed to execute lease deed and get it registered. He invested huge amounts to change the residential building to suit to the needs of Restaurant. He is paying rents regularly and the plaintiffs issued separate receipts. The plaintiffs were taking Rs.16,500/- each in respect of the suit building as rent. Though he has been regularly paying the rent of Rs.33,000/-, the plaintiffs themselves started avoiding to collect the rents in spite of requests and demands made by him. He is ready to pay Rs.33,000/- @ Rs.16,500/- each to the plaintiff or to deposit the same in to the Court. The notice issued by the plaintiffs under Section 106 of the Transfer of Property Act, 1882 (for short ‘the Act’) is not valid. The plaintiffs are bent upon to get him evicted from the suit schedule property by illegal means even though he is not at fault. Hence, he prays to dismiss the suit. 6. Basing on the above pleadings, the trial Court settled the following issues for trial: 1. Whether the plaintiff has properly terminat5ed the lease over the plaint schedule property? 2. Whether the defendant has agreed to pay Rs.66,000/- per month towards monthly rent? 3. Whether the defendant is due an amount of Rs.1,32,000/- towards arrears of rent and if so whether plaintiff is entitled for the same? 4. Whether the plaintiff is entitled for mesne profits @ Rs.30/- per Sq. ft and whether total complex area lease out is 9000 Sq. ft.? 5. Whether the plaintiff is entitled for recovery of plaint schedule property as prayed for? 6. To what relief? 7. The 1st plaintiff himself was examined as P.W.1 and got marked Exs.A1 to A3. The defendant himself was examined as D.W.1 and go marked Exs.B1 to B40. 8. The trial Court after considering the evidence on record, decreed the suit directing the defendant to vacate and hand over vacant physical possession of the suit schedule property to the plaintiffs within three months from the date of decree and further directed to pay Rs.36,000/- being the arrears of rent for the months of August and September, 2005 in respect of suit schedule property. Aggrieved thereby, the present appeal has been preferred. 9. Now the point for determination is whether the judgment of the trial Court is correct, legal and proper? 10. It is admitted that Ex.A1 notice got issued by plaintiffs, dated 05-09-2005 determining the tenancy of the defendant by the end of 30- 09-2005. The defendant received the quit notice on 06-09-2005 under Ex.A2 acknowledgment. Sub-section (1) of Section 106 of the Act reads thus: “In the absence of a contract or local law or usage to the contrary, a lease of immovable property for agricultural or manufacturing purpose 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 fifteen days notice.” Sub-section (2) provides that the period mentioned in Sub-section (1) shall commence from the date of receipt of notice. The twin conditions under Section 106 of the Act are: (i). a lease of immovable property for any other purpose terminable by giving 15 days notice; (ii) the notice must expire with the end of the month of tenancy . The above two conditions are fulfilled in this case. 11. It is not in dispute that the appellant is the tenant in respect of the suit schedule property, which was taken on lease from the respondents herein. The tenant continued in the premises for a period of eleven month. Thereafter, he alleged to be continuing in the premises from month to month. On 05-09-2005, respondents issued Ex.A1 notice to the appellant to vacate the premises. Ex.A1 is not shown to be invalid or contrary to Section 106 of the Act. Once Ex.A1 is found to be valid and issued in accordance with law, the tenant is liable to vacate the premises. Section 106 of the Act makes it clear that where the suit or proceedings is filed after expiry of the period mentioned in clause 1, quit notice even if falls short of the period of tenancy, cannot become invalid. Once Ex.A1 is found to be valid, then there is no option for the appellant except to vacate the premises. 12. With regard to the determination of rent, it is not shown to be contrary to the evidence. Admittedly, two receipts have been issued by the appellant, one in favour of the 1st respondent and another in favour of the 2nd respondent for Rs.18,000/- each. Those receipts were taken by the trial Court as evidence in arriving at a conclusion the rent payable by the tenant to the landlord. Therefore, the finding of the trial Court with regard to determination of rent is correct and proper. 13. Learned counsel appearing for the appellant contended that lease transaction is separate and district, that two plaintiffs cannot maintain one single suit as the cause of action and the contract of lease are separate and distinct and therefore, the suit is not maintainable. He further contended that P.W.1 admitted that two unregistered lease deeds were executed by the appellant, one in his name and another in favour of his wife and the monthly rent agreed to be payable for each building was Rs.30,000/- and therefore, cause of action and contract of lease is separate and distinct. 14. On the other hand, learned counsel appearing for the respondents herein contended that no such plea has been taken by the appellant in the trial Court and no evidence was adduced to substantiate the plea and for the first time, such a plea cannot be raised, that since the respondents are the joint owners of the premises in question and they leased out the premises at the same time and the schedule of the property is one, filing of single suit by both the plaintiffs is valid and not contrary to any of the provisions under the Civil Procedure Code. 15. Now the only question to be decided in this appeal is whether a single suit is maintainable or not in the facts and circumstances of the case?. 16. Order 1 of CPC deals with parties to a suit. It also contains provisions for addition, deletion and substitution of parties; joinder, misjoinder and non-joinder of parties and objection as to misjoinder and non-joinder. Under Order I Rule 1 of CPC, all persons may be joined in one suit as plaintiffs where- “(a) any right to relief in respect of , or arising out of, the same act or transaction or series of acts or transactions is alleged to exist in such persons, whether jointly, severally or in the alternative; and (b) if such persons brought separate suits any common question of law or fact would arise.” The above provision allows several plaintiffs to join in one suit where (i) a right to relief arises out of the same act or transaction or series of acts or transactions and (ii) there is a common question of law or fact. If the above two conditions are fulfilled, all the persons may be joined in one suit as plaintiffs. When two or more persons are jointly entitled to any relief, all of them should be joined as plaintiffs in one suit. The rationale behind this provision is that all these persons together represent one single and indivisible right which cannot be adjudicated upon and an effective order be passed in the absence of all such persons. Thus all co-owners or joint owners may be joined in one suit. Therefore, the above provision makes it clear that when the identity of the act or transaction is one and the same, then joining of all the plaintiffs would be perfectly legitimate and legal. 17. Further, Under Order I Rule 9 of CPC, no suit shall be defeated by reason of the misjoinder or non-joinder of parties, and the Court may in every suit deal with the matter in controversy so far as regards the rights and interests of the parties actually before it. The proviso makes it clear that nothing in this rule shall apply to non-joinder of a necessary party. Even assuming that the plaintiffs filed a joint suit having independent cause of action, there is a misjoinder of plaintiff, but all objections as to the misjoinder of parties must be taken at the earliest opportunity, otherwise they will be deemed to have been waived. 18. Under Order I Rule 13 of CPC, all objections on the ground of non-joinder or misjoinder of parties shall be taken at the earliest possible opportunity and, in all cases where issues are settled, at or before such settlement, unless the ground of objection has subsequently arisen, and any such objection not so taken shall be deemed to have been waived. Therefore, in view of the above provision, such objection of misjoinder of plaintiffs cannot be allowed to be taken in appeal. It is not the case that the ground of objection that arisen subsequently after passing of the decree. 19. A specific plea has been taken by the respondents that they are the joint and absolute owners of the premises consisting of two similar buildings joined on the south-west corner at different levels at H.Nos.8-2-293/82/A/1100/1m 1100/2 and 1100/3 at Plot No.1100 situated at Road No.36, Jubilee Hill, Hyderabad more fully described in the schedule attach to the plaint. The evidence of P.W.1 would go to show that he along with his wife are the joint and absolute owners of the suit schedule property, which consists of two similar buildings joined on the south west corner at different levels consisting of cellar, ground, first and second floors with total carpet area of 9000 Sq. ft. D.W.1 also admitted that the plaintiffs are the joint owners of the property bearing No.100, Road No.36, Jubilee Hills, Hyderabad and that he is the tenant of the property having leased out the property in the year 2003. As a matter of fact, he has taken a specific in the suit filed by him that the respondents herein are the joint owners of the property. Therefore, the fact that the respondents herein are the joint owners of the property is not denied or disputed. It is established beyond preponderance of probability that the respondents herein are the joint owners of the suit schedule property, but the only thing is, lease was taken separately, one in the name of the 1st respondent and another in the name of the 2ndr respondent. In such circumstances, it cannot be said that the contract is separate and distinct one. In view of the fact that the respondents herein are the joint owners of the property, they can maintain a single suit. Even it is not the case of the appellant that the 1st respondent herein is the owner of one building and the 2nd respondent herein is the owner of another building. The evidence would clearly go to show that the respondents are the joint owners of the suit schedule property. Therefore, they can file a single suit even though the lease deeds were obtained separately in the name of the respondents 1 and 2. No legal bar is brought to the notice of this Court that the respondents herein cannot maintain a single suit. Even otherwise, such a plea has not been taken as to why in such circumstances, the respondents have to file a separate suit. It has to be pleaded and established in the suit itself. In the absence of any such plea, the objection raised by the learned counsel for the appellant cannot be said to be countenanced. Therefore, the contention of the learned counsel for the appellant that separate suits have to be filed cannot be accepted in view of the fact that both the respondents are joint owners of the property and they can file a single suit as the tenant is common. Hence, there are no grounds to interfere with the judgment under challenge. 20. Accordingly, the appeal is dismissed with costs directing the appellant to vacate the suit schedule property within a period of five (5) months from today. The appellant shall continue to pay or deposit the rent at the rate of Rs.1,35,000/- per month. The appellant shall give undertaking to the trial Court within three (3) weeks from today that he shall not induct any third person into the suit schedule property and shall handover vacant physical possession of the suit schedule property to the respondents after expiry of five months. -------------------- K.C.BHANU, J DATED:03-06- 2010 Note: Issue CC in one week Hsd