THE HON’BLE SRI JUSTICE N.R.L.NAGESWARA RAO APPEAL SUIT NO.2522 OF 2003 Date: 26-04-2011 Between: Ch.Venkatesham and another .. Appellants And The Secretary, Panchayath Raj Department, Government of Andhra Pradesh, Hyderabad and 3 others .. Respondents THE HON’BLE SRI JUSTICE N.R.L.NAGESWARA RAO APPEAL SUIT NO.2522 OF 2003 JUDGMENT: The suit was filed by the plaintiffs in O.S.No.37 of 1999 for recovery of Rs.1,50,392/- said to be the rent payable by the defendants to the plaintiffs. The allegations in the plaint go to show that the building belonging to the plaintiffs was taken on lease by the defendants for location of the office of the 4th defendant in the year 1995 and the rent was fixed at Rs.3,000/- per month for a period of 11 months. Two rooms were constructed in April, 1995 and the defendants did not enhance the rent in spite of repeated requests and on 12.12.1995 the 1st plaintiff sent a letter for enhancement and there was no response; again on 19.12.1995 another representation was sent to the 4th defendant seeking for enhancement of the rent from Rs.3,000/- to Rs.5,000/- per month and subsequently another representation was sent on 11.04.1997 seeking enhancement of the rent from Rs.3,000/- to Rs.6,000/-. On the repeated requests of the plaintiffs, the 4th defendant sent proposals to the 3rd defendant informing that the rent works out to Rs.6,418/- as per the data statement and the rent may be enhanced. In spite of repeated demands and recommendations, the defendants did not pay the money and the premises was vacated on 30.09.1998 and, therefore the suit was filed claiming rent @ Rs.6,418/- from 01.02.1995 to 30.09.1998 less the agreed rent of Rs.3,000/-. The 4th defendant filed a written statement contending that the lease is only for a period of one year and not for 11 months and the rent was fixed with consent at Rs.3,000/-. The claim that the plaintiffs made further constructions to the building is not correct. The plaintiffs have no right to demand more than the amount fixed by the competent authority, the alleged recommendations made by the 4th defendant were not considered. The renewal was also recommended from 01.03.1995 to 30.09.1998. The plaintiffs are, therefore, not entitled to the rent claim and in fact all the arrears were paid by the date of vacation of the premises on 30.09.1998. The suit is barred by time and the plaintiffs are not entitled for the suit amount. On the basis of the above pleadings, the following issues were framed for trial: 1. Whether plaintiffs are entitled to recover Rs.1,50,392/- from the defendants? 2. Whether the suit is barred by limitation? 3. Whether the suit for arrears of enhanced rent is not maintainable? 4. Whether defendants are entitled to exemplary costs? 5. To what relief? On behalf of the plaintiffs, P.W.1 was examined and marked Exs.A-1 to A-19 and on behalf of the defendants, D.W.1 was examined and marked Ex.B-1. After considering the material and the evidence on record, the learned Senior Civil Judge, Bhongir dismissed the suit of the plaintiffs and aggrieved by the said judgment and decree, the present appeal is filed. The points that arise for consideration are: 1. Whether the plaintiff is entitled for the amount of rent at Rs.6,418/- as claimed? 2. Whether the judgment and decree passed by the learned Senior Civil Judge, Bhongir is legal and sustainable? 3. To what relief? POINTS 1 to 3: There is no dispute about the fact that the 4th defendant has taken the premises on lease belonging to the plaintiffs and though the plaintiffs claim that the lease was only for 11 months, according to the case of the defendants, the lease is for a period of one year. The lease is said to have commenced from 01.02.1995. It is not in dispute that as per the original agreement of lease, the rent as assessed by the Department was fixed at Rs.3,000/- and it was accepted by the plaintiffs. The lower Court found that the lease agreement is not admissible in evidence as it was not registered and as it is for a period of more than one year. Even if the lease agreement is not admissible in evidence, the fact remains that the defendants claim that the lease period is only for a period of one year. Therefore, the tenancy will be over by 01.02.1996. Therefore, the right of the defendants to continue in possession can only be by further agreement with the plaintiffs on the same rent or by enhanced rent as per the rent fixed by the competent authority. Admittedly, after 01.02.1996, there was no renewal of the lease agreeing the same rent at Rs.3,000/-. On the other hand, even before the expiry of the lease the plaintiffs have claimed for enhancement of the rent and repeated demands were sent to the defendants. But at no point of time the defendants have offered to continue in possession as tenants by agreement with the plaintiffs with the same rent as was paid earlier. Therefore, the continuation of the possession of the defendants after the expiry of the lease can only be by tenancy holding over or tenancy by sufferance. But in this case, even before expiry of the lease the plaintiffs have not accepted for continuation on the same rent and they have pleaded for enhancement of the rent. Therefore, the possession of the defendants of the schedule property is only as a tenant by sufferance and consequently the amount payable by the defendants can only be damages for use and occupation. The defendants cannot claim that they are liable to pay the earlier rent at Rs.3,000/-. The question, therefore, will be as to what will be the quantum of the damages for use and occupation, if at all the plaintiffs are entitled. In the letter dated 19.12.1995, which is marked as Ex.A-3 the request made by the plaintiffs for enhancement of the rent at Rs.5,000/- per month but subsequently under Ex.A-4 the enhancement was claimed to Rs.6,000/- but finally relying on Exs.A-15 and A-16 enhancement was claimed at Rs.6,418/-. Evidently, Ex.A-15 accompanying the data is prior to the commencement of the lease whereunder it was found that the rental value will be about Rs.6,418/- but as the landlord is willing to give on rent at Rs.3,000/-, it was taken into consideration. But, however there is no dispute about the fact under Ex.A-16 letter written by the Executive Engineer to the Superintending Engineer on 23.09.1997, recommendation was made for renewal of the lease and also informing that the rental value works out to Rs.6,418/-. Evidently, this was not accepted by the Department and on the other hand, even by 06.05.1997 the Executive Engineer informed the plaintiffs that they will be vacating the premises within one year. Therefore, taking into consideration the above fact, the plaintiffs are not consistent about the rental value and enhancement, they are entitled and the plaintiffs cannot take into consideration the Ex.A-15 letter accompanying the data, which was earlier considered at the time of fixing of the original rent. Therefore, I find that the dismissal of the suit by the lower Court is not correct and after the expiry of the one year period of lease, the defendants cannot claim to continue on the same rent since the plaintiffs have not accepted for the rent and pleaded enhancement. The next question is as to what will be the damages, if any, the plaintiffs will be entitled for use and occupation after the expiry of the lease. Except making an oral statement about the demand and relying upon Ex.A-15, there is no other evidence available on record about the rents prevailing in the vicinity. At the earliest point of time, the demand for fixation of the rent is Rs.5,000/- under Ex.A-3 for which also there is no material. But however taking into consideration the original rent being Rs.3,000/-, I feel the ends of justice would meet if for the period from 01.03.1996 till 30.09.1998 the date when the defendants have vacated the premises, if a sum of Rs.4,500/- (Rupees four thousand five hundred only) is fixed as the amount of damages for use and occupation excluding the amount of Rs.3,000/- already paid by the defendants. The plaintiffs cannot claim any amount as damages having agreed for the tenancy for a period of one year @ Rs.3,000/- only. Therefore, the claim as made by the plaintiffs is not correct and I hold that the plaintiffs will be entitled for a sum of Rs.1,500/- (Rupees fifteen hundred only) per month from 01.03.1996 till 30.09.1998, the date when the premises was vacated. Since the suit was filed within the period of three years from the date of vacation of the premises and also the expiry of the period of tenancy, the suit claim cannot be said to be barred. Even otherwise, Ex.A-16 gives a relief to the plaintiff about the intention to pay the amount. Therefore, for all the above reasons, I find that the judgment and decree passed by the learned Senior Civil Judge, Bhongir is liable to be set aside and accordingly the suit of the plaintiffs is decreed for a sum of Rs.1,500/- (Rupees fifteen hundred only) per month from 01.03.1996 to 30.09.1998 with interest at 12% per annum from the date of suit till the date of decree and at 6% per annum till the date of realization. The plaintiffs will be entitled to the proportionate costs in the lower Court and in the appellate Court. The defendants shall bear their own costs. Accordingly, the Appeal Suit is allowed. ________________________ N.R.L.NAGESWARA RAO, J 26-04-2011 MR THE HON’BLE SRI JUSTICE N.R.L.NAGESWARA RAO APPEAL SUIT NO.2522 OF 2003 Date: 26-04-2011 MR