*HON'BLE SRI JUSTICE G. BHAVANI PRASAD +A.S. No.1100 of 2001 and Cross Objections % 28/09/2010 A.S. No.1100 of 2001: # Union of India rep. by its Secretary, Telecom, Sanchar Bhavan, New Delhi and others ..... APPELLANTS Vs. $ Nallapaneni Lakshmi Kumari .....RESPONDENT ! COUNSEL FOR THE APPELLANTS: Sri R.S. Murthy ^ COUNSEL FOR THE RESPONDENT: Sri G. Pedda Babu Cross Objections: # Nallapaneni Lakshmi Kumari … Cross Objector Vs. $ Unioon of India rep. by its Secretary, Telecom, Sanchar Bhavan, New Delhi and others … Respondents ! COUNSEL FOR THE CROSS OBJECTOR: Sri G. Pedda Babu ^ COUNSEL FOR THE RESPONDENTS: Sri R.S. Murthy < Gist : Ø Head Note: ? CITATIONS: 1. AIR 1964 SUPREME COURT 1810 2. AIR 1997 SUPREME COURT 1398 3. 1965 (2) An.W.R. 226 4. 1980 (2) ALT 44 5. (1961) 1 An.W.R. 372 6. AIR 1967 AP 78 7. AIR 1974 SUPREME COURT 104 8. AIR 1982 ANDHRA PRADESH 253 9. AIR 1961 JAMMU AND KASHMIR 39 10. AIR 1976 MADRAS 387 11. AIR 1969 DELHI 59 COMMON JUDGMENT: The appeal and the cross-objections are directed against the judgment and decree in O.S. No.17 of 1995 on the file of the Senior Civil Judge’s Court, Chirala, dated 06-07-2000. The suit was filed by the respondent alleging that the appellants took the suit property on lease for running a telephone exchange on a monthly rent of Rs.4,000/- for five years from 26-02-1985 to 26-02-1990 under a registered lease agreement. On expiry of the period of lease, the respondent demanded the appellants to enhance the rent to Rs.8,000/- per month from 01-03-1990 and also issued a notice under Section 80 of the Code of Civil Procedure demanding the appellants to vacate the property and seeking enhancement of rent due to considerable increase in the rents in the locality. Then, the respondent filed O.S. No.1 of 1993 for eviction and possession and the suit was decreed with costs. The respondent initiated proceedings for obtaining delivery of possession and then the appellants filed an appeal before the District Court along with I.A. No.1402 of 1993 for condonation of delay. The petition and a revision against its dismissal in C.R.P. No.3264 of 1994 were dismissed, but the High Court granted time for the appellants up to May, 1995 to vacate, while observing that the rents should be regularly paid. The appellants still did not pay the enhanced rent and did not vacate the premises and therefore, the respondent issued another notice under Section 80 of the Code of Civil Procedure on 29-08-1994 demanding them to pay the rent at Rs.8,000/- per month and also damages due to the damage to the building and mental agony caused to the respondent. The appellants gave a reply, dated 17-10-1994 referring to the pendency of revision before the High Court and denying the right of the respondent to claim enhanced rent, though the revision was dismissed on 15-09-1994 itself. Hence, the respondent filed the suit for recovery of Rs.3,30,000/- towards the difference in rent from 01-03-1990 to 01-12-1994 to a tune of Rs.1,80,000/- at Rs.4,000/- per month, Rs.1,00,000/- towards damages caused to the building and Rs.50,000/- for mental agony. The suit for recovery of Rs.3,30,000/- was requested to be decreed with costs. The appellants contested the suit claiming the claims of the respondent to be false and admitting the lease under the agreement, dated 27-02-1988 for five years ending with February, 1990. The appellants also claimed that O.S. No.108 of 1991, renumbered as O.S. No.1 of 1993 filed by the respondent for recovery of possession, resulted in the appellants delivering possession of the building through Court Amin. The appellants claimed the building to have been delivered in tact and the appellants to be not liable to pay any enhanced rent. The appellants also claimed the suit to be barred by limitation and the building to have been delivered back in the same condition in which it was taken on lease. They claimed their continuance in possession till delivery to be legal and the respondent herself to have never attended the legal proceedings. It was only the general power of attorney holder that was attending and hence, the appellants sought for dismissal of the suit with exemplary costs. The trial Court framed two issues for trial as follows: (1) Whether the plaintiff is entitled to damages ? (2) To what relief ? During trial, P.Ws.1 to 8 and D.Ws.1 to 4 were examined and Exs.A.1 to A.6 and B.1 to B.23 were marked. The trial Court rendered the impugned judgment referring to the pleadings, contentions and evidence of the parties and noted that the evidence of P.Ws.3 and 4, whose buildings were also let out to the Telephone Department, showed that the department enhanced the rent to them, and also referred to the evidence of D.W.1, the Sub-divisional Officer, Telecom about the rent being enhanced every two years generally through a committee constituted for the purpose. While observing that the rent was not enhanced though the lease expired by 26-02-1990 and the building was only delivered on 20-06-1995, the trial Court found from the correspondence of the department itself that the higher officials of the department wanting to take the premises for another two years on lease and to consider enhancement of rent. The trial Court also noted that the rent was Rs.1,250/-, Rs.2,725/- and Rs.4,000/- for different periods for the suit building and taking the same as the basis, enhancement of rent for Rs.2,000/- per month for the suit period was considered reasonable. The contentions of P.Ws.1, 5, 6 and 8 regarding the damage to the building were considered by the trial Court to be not proving the claim, as the evidence of D.Ws.2 and 3 showed that whatever holes caused to the building at the time of removal of cables were closed and repaired through a contractor. The trial Court also noted the absence of any bill or other document to indicate any expenditure by the respondent for the purpose. The damages for the mental agony claimed by the respondent were also not considered favourably, as the respondent’s husband, P.W.2, was looking after the litigation and the respondent, examined as P.W.1, did not even submit herself for cross-examination. The trial Court further noted that any damage to the building could have been noted by the Amin delivering the property or through a commissioner appointed by the Court. The respondent herself did not state in her chief- examination about any mental agony suffered by her and hence, the trial Court restricted the relief granted to the difference of rent at Rs.2,000/- per month for the suit period i.e. Rs.90,000/- with proportionate costs and dismissed the rest of the suit claim. The appellants contended herein that the suit filed on 05-01-1994 (05-12-1994) in respect of the cause of action arising on 26-02-1990 was barred by time. They further claimed that the suit is also barred by Order II Rule 2 Sub-Rule (3) of the Code of Civil Procedure in the light of O.S. No.1 of 1993. They claimed the cause of action to have not survived after the delivery of possession on 20-06-1995 in the light of the permission granted by the High Court in C.R.P. No.3264 of 1994 dated 15-09-1994 to retain the premises up to 31-05-1995 on the rent of Rs.4,000/- as per the agreement dated 27-02-1988. In the absence of an agreement to enhance the rent from Rs.4,000/- per month, no contractual obligation exists and no claim can be enforced contrary to Article 299 of the Constitution of India. The civil Court could not have substituted a new agreement and could not have directed payment of Rs.90,000/- and hence, the appellants sought for reversal of the judgment of the trial Court. The respondent filed cross-objections contending that when the rent from 1981 to 1984 at Rs.1,250/- per month was admittedly enhanced to Rs.4,000/- per month from 1985 to 1990, even according to D.W.1, the rent from 1990 should have been more than Rs.8,000/- per month. As such, the difference of rent should have been granted at Rs.4,000/- per month as damages as claimed by the respondent. It should be first noted that the dismissal of the suit in respect of Rs.1,00,000/- towards damages to the building and Rs.50,000/- towards mental agony to the respondent, had become final in the absence of any challenge to the same by any party and the appeal and the cross-objections are confined to the claim of Rs.1,80,000/- towards difference of rent at Rs.4,000/- per month for the suit period. Sri R.S. Murthy, learned counsel for the appellants and Sri G. Pedda Babu, learned counsel for the respondent are heard at length and they referred to various precedents, which will be referred to in due course. The points for consideration are: 1. Whether the plaintiff/respondent is entitled for difference in rent for the period from 01-03-1990 to 01-12-1994 and if so, at what rate ? 2. To what relief ? Point No.1: The respondent filed O.S. No.108 of 1991/O.S. No.1 of 1993 against the appellants for recovery of possession of the subject property referring to the possession of the appellants under the lease since prior to 1985, the withdrawal of the earlier suit on compromise, the expiry of period of lease and the silence of the defendants to the statutory notice to vacate. In the said suit, of course, no specification was made about any claim for enhanced rent or any right to sue for such enhanced rent. Sri R.S. Murthy, learned counsel for the appellants referred to Gurbux Singh v. Bhooralal[1] and M/s. Bengal Waterproof Limited vs. Bombay Waterproof Manufacturing Company[2] to claim the present suit in O.S. No.17 of 1995 to be barred by Order II Rule 2 of the Code of Civil Procedure. In the first case, the defendant was claimed to be in wrongful possession and there was a suit for recovery of mesne profits followed by a suit for recovery of possession. The omission to sue for possession in the first suit was claimed to attract Order II Rule 2 of the Code of Civil Procedure. The Apex Court pointed out that the defendant must make out that though the suits were in respect of the same cause of action, on which the plaintiff could have sought for more than one relief and that the plaintiff omitted to sue for the relief claimed in the second suit without obtaining leave from the Court. For that purpose, the defendant had to file in evidence the pleadings in the previous suit and prove the identity of the cause of action in the two suits. The Apex Court held that a plea under Order II Rule 2 of the Code of Civil Procedure cannot be made out except on proof of the plaint in the previous suit and what matters is not the characterisation of the particular sum demanded, but what in substance is the allegation on which the claim in the suit was based and as regards the legal relationship on the basis of which that relief was sought. The Apex Court did not consider it necessary to examine the conflict of judicial opinion about the cause of action for a suit for possession of immovable property and the cause of action for a suit in respect of mesne profits for the same property being the same or different and distinct. I n M/s. Bengal Waterproof Limited vs. Bombay Waterproof Manufacturing Company (2 supra), the Apex Court followed Gurbux Singh v. Bhooralal (1 supra) and noted that the defendant failed to produce the pleadings in the first suit. The Apex Court held the second suit based on the continuous and recurring infringement of the plaintiff’s trade mark by the defendant continuously till the filing of the second suit to be maintainable and to be not based on the same cause of action, as the first suit was based on the infringement of trade mark and passing off action till the date of that suit. In response, Sri G. Pedda Babu, learned counsel for the respondent referred to a Division Bench decision of this Court in Rangamma v. Venupurnachandra Rao[3]. The question was whether the plaintiff, who filed earlier suit for mesne profits of an immovable property, can subsequently sue for recovery of possession. The Division Bench referring to the frame and content of Order II of the Code of Civil Procedure, reiterated the principle that the defendant could not be vexed twice for the same cause of action. The rule was stated to be directed against split of claims and split of remedies and to be applicable only when both the suits arise out of the same cause of action between the parties. The Division Bench deduced from the language of Order II itself that the cause of action for recovery of possession is not necessarily identical with the cause of action for recovery of mesne profits. The Division Bench also noted the different periods of limitation prescribed in respect of such reliefs and the different dates of accrual of causes of action for such relief. The different evidence required in the two cases, though the rights may be vested in the same person, was also noted and the legislative history of Order II and the various precedents on the aspect were referred to in extenso to conclude that the correct test in cases falling under Order II Rule 2 is whether the claim in the new suit is the fact founded upon the cause of action distinct from that which was a foundation for the former suit. The decision of the Division Bench is binding and no material has been placed to show that the same does not still hold the field. For the same reasons, the earlier suit for recovery of possession cannot be construed as barring the present suit for recovery of difference in rent and damages for the damage to the building and mental agony. As the Apex Court did not examine and express any opinion in Gurbux Singh v. Bhooralal (1 supra) on the Madras view about the causes of action being distinct and different for suits for possession and suits for mesne profits in respect of the same property or in M/s. Bengal Waterproof Limited vs. Bombay Waterproof Manufacturing Company (2 supra) and as the Division Bench essentially based its conclusions on the Madras view binding on this Court, the present suit cannot be considered barred by Order II Rule 2 sub-rule (3) of the Code of Civil Procedure. Even otherwise, the plaint or any other documents relating to O.S. No.108 of 1991/O.S. No.1 of 1993 were not filed into Court or proved during the trial apart from the written statement making no reference to any plea of bar of the suit under Order II Rule 2 of the Code of Civil Procedure. In the absence of any such plea directly or indirectly, such a plea could not have been looked into at all in the first instance and even if such a plea could have been looked into, in the light of the law declared by the Apex Court in Gurbux Singh v. Bhooralal (1 supra) and M/s. Bengal Waterproof Limited vs. Bombay Waterproof Manufacturing Company (2 supra), any such plea is barred at the threshold when the defendants did not produce on record of the trial Court the pleadings in the first suit. The suit was filed on 05-12-1994 for recovery of difference of rent from 01-03-1990 to 01-12-1994 apart from damages due to damage caused to the building and mental agony and the appellants claimed the suit to be barred by time. Unlike about the alleged bar under Order II Rule 2 of the Code of Civil Procedure, the appellants have specifically pleaded in the written statement about the claim being barred by limitation. Sri G. Pedda Babu, learned counsel for the respondent relied on Chalasani Bapaiah v. Gram Panchayat, Bhatla Penumarru[4] in this regard, wherein the plaintiff instituted the suit for possession earlier, which was dismissed by the trial Court and later decreed by the appellate Court. Subsequently, the plaintiff filed a separate suit for recovery of mesne profits and the learned Judge opined that unless the right to possession of the plaintiff was determined, he could not have filed a suit for recovery of mesne profits and only when he had a right to sue, he could initiate the proceedings. The learned Judge opined that it is essential that there must be an existing and settled right for the initiation of the proceedings and opined that steps taken by the plaintiff to establish his right to possession are but indispensable and necessary steps to sue for recovery of profits for wrongful possession and hence, the plaintiff is entitled to exclude the period taken for the suit and the appeal. The learned Judge distinguished the decision of the Bench in Chintalapati Varahalakshmi v. Gavva Nallaya[5], wherein the Bench held that the plaintiff cannot wait till his title is declared by the trial Court or confirmed by the highest Court of appeal to successfully recover profits from a person in unlawful possession within the bar of limitation. Following the decision of another learned Single Judge in P. Venkata Ramanayya v. P. Singayya[6], wherein it was held that right to sue for mesne profits accrued to the plaintiff only when a right to possession was finally decided by the High Court, the learned Judge held the suit to be governed by Article 113 of the Limitation Act, 1963 providing a period of limitation of three years from the date of accrual of right to sue, which was the date of decision in the appeal in favour of the plaintiff. In the present case, O.S. No.108 of 1991/O.S. No.1 of 1993 was decreed in favour of the respondent on 19-04-1993. The appellants unsuccessfully attempted to challenge the same in appeal after much delay and failed in having the delay condoned by the District Court and then by the High Court and were granted time by the High Court on 15-09-1994 in C.R.P. No.3264 of 1994 to vacate before the end of May, 1995. In the light of the principles laid down in Chalasani Bapaiah v. Gram Panchayat, Bhatla Penumarru (4 supra), the present suit claim, hence, may not be capable of being negatived on the ground of bar of limitation, when the right of the respondent to recover possession was the specific issue in O.S. No.1 of 1993, which ended in favour of the respondent only on 19-04-1993, as seen from Ex.A.2. Coming to the right of the respondent to claim any enhanced rent or damages, Sri G. Pedda Babu, learned counsel for the respondent referred to M.C. Chockalingam and others vs. V. Manickavasagam and others[7], in which the Apex Court held that the fact that after expiry of the lease, the tenant will be able to continue in possession of the property by resisting a suit for eviction, does not establish a case in law to answer the requirement of lawful possession of the property and lawful possession cannot be established without the concomitant existence of a lawful relationship between the landlord and the tenant, which cannot be established against the consent of the landlord, unless his consent becomes irrelevant under any special law. The Supreme Court pointed out that lawful possession is not litigious possession and must have some foundation in a legal right to possess the property. Consequently, it was held that juridical possession is possession protected by law against wrongful dispossession, but cannot per se always be equated with lawful possession. The Apex Court also referred to Section 108 (q) of the Transfer of Property Act, under which, on the determination of the lease, the lessee is bound to put the lessor into possession of the property and held that where the landlord has not assented to the lessee’s continuance in possession of the property, the lessee will be liable to mesne profits, which can again be recovered only in terms of his wrongful possession. This was followed by a Division Bench of our High Court in M. Annapurnaiah v. M. Narasimha Rao[8], wherein it was pointed out that if the tenant continues in possession, after the lease is terminated, without the consent or acquiescence of the lessor, then he is a tenant by sufferance and is not a tenant holding over. The possession of such tenant was held to be juridical possession and cannot be considered as unauthorized. The Division Bench also referred to various other precedents in this regard and considered the tenant by sufferance to be entitled to remain in possession till he is evicted in the course of law subject to payment of all arrears of rent. I n Bhagwan Das v. Union of India[9], a Division Bench noted that there are a number of rulings of different High Courts, wherein it has been laid down that if the tenant after the expiry of the lease remains in occupation of the premises in spite of the fact that the landlord served a notice on him to vacate and warned him that if he remains in occupation, he will have to pay a specified sum as damages for wrongful use and occupation of the building, the defendant will be liable to pay that amount, provided it is not penal and unconscionable. The decisions of the High Courts of Lahore, Patna, Nagpur and Jammu and Kashmir were referred to with approval and the amount claimed by the plaintiff, which was found to be not excessive, was awarded to him. Sri G. Pedda Babu also invited attention to Sanjiva Row’s Transfer of Property Act, Fourth Edition 1983, Volume 3, page 1800, wherein it was observed that even a stay order of a Court only postpones the execution of the decree for delivery of possession and the tenant’s possession, despite the order of the Court, would remain that of a trespasser, if during that period he had no statutory protection. A Division Bench of Madras High Court held in The Union of India and another v. Andhra Bank Ltd., Madras[10] that if a tenant continues in possession of the demised premises after the determination of the lease without the consent of the landlord either expressly or by necessary implication, he is called a tenant by sufferance and after extensively referring to the case law on the subject, it was laid down that: (1) If a tenant at sufferance continues to occupy the premises after the determination of the lease, then he cannot unjustly enrich himself by claiming that he will pay only the quondam rent and not a reasonable rate of damages for use and occupation of the premises. (2) If he assents to pay the enhanced rent demanded at a time when the landlord determines the lease, then there is no difficulty at all. He will be considered as a tenant holding over on the basis of a new contract of lease as between himself and the landlord. (3) If the tenant, in spite of the warning, contumaciously remains in possession of the premises, the landlord secures a right to get a reasonable compensation from the tenant for such occupation, but it need not necessarily be the enhanced rate of rent claimed by him; but in no circumstances, it can exceed the enhanced rate demanded by him. (4) The Court should investigate and it has the jurisdiction to do so, and find in its discretion whether the enhanced rate claimed by the landlord, in such circumstances is penal or otherwise equitably justified. (5) The Court has the power and indeed the discretion to fix a fair and equitable rent in such situations. Similarly, in Hindustan Steel (Pvt.) Ltd., v. Smt. Usha Rani Gupta[11] again with reference to the precedential law, it was held by a Division Bench that the Court in awarding the rent at enhanced rate against a tenant contumaciously holding over after notice of ejectment, has to take into consideration