THE HON’BLE SRI JUSTICE G.CHANDRAIAH S.A.NO.1344 OF 2008 JUDGMENT Heard both the counsel. 2. Aggrieved by the judgment and decree dated 15.07.2008 passed by the court of II Additional City Civil Court, Hyderabad in A.S.No.599 of 2007, in reversing the judgment and decree dated 19.11.2007 passed by the court of II Junior Civil Judge, City Civil Court, Hyderabad and thereby dismissing the suit filed by the landlord for evicting the tenants, the present appeal is filed by the landlord. 3. The appellant is the landlord and he filed the suit for eviction of the tenants. His case in the plaint is that he is the owner of two shops with a kitchen bearing no.16-7-764 and 765, Chaderghat Road, Hyderabad and it is the suit schedule property. He leased the said premises to the defendants to run bakery. Initially, the premises was taken on rent in the year 1995 on a monthly rent of Rs.4,500/- per month and later in the year 1998, a rental agreement was entered into between the parties, enhancing the rent to Rs.4,850/-. The tenancy is month to month tenancy, commencing from the first of every month as per the English calendar expiring by the end of the month. The defendants were enhancing the monthly rent at the rate of 5 per cent and latest enhancement was to Rs.6,300/-. As the defendants committed default in payment of rent from September, 2006 to February, 2007 at the rate of Rs.6,300/- per month, the plaintiff issued notice dated 1.2.2007, under Section 106 of the Transfer of Property Act, terminating the tenancy of the defendant by the end of the tenancy month commencing from 1.2.2007 and directing the defendant to vacate and handover the suit mulgies by 1.3.2007. On receipt of the said notice, the defendant issued reply notice dated 28.2.2007 enclosing demand draft by showing the wrong name of the plaint, intentionally to avoid payment of arrears of rent. The further case of the plaintiff is that the defendants carried out constructions unauthorizedly and illegally and they were running bakery without obtaining licence from the municipal authorities. The possession of the defendant over the suit schedule property after the termination of tenancy, is illegally and for such occupation, they are liable to pay Rs.10,000/- per month as damages till they vacate the premises. With these averments, the suit was filed for eviction and for future mesne profits. 4. The 1st defendant filed written statement and the same was adopted by the 2nd defendant. They denied the averments in the plaint, except the jural relationship of landlord and tenant and the quantum of rent. Their case is that the premise was let on 13.9.1995. At the time of letting the premises, they deposited Rs.2,00,000/- with the plaintiff under receipt. The plaintiff renewed the tenancy by executing an agreement dated 22.9.1998, whereunder, it is provided that a six months notice is required for seeking eviction by the landlord or for surrendering the lease by the tenants. But the plaintiff issued a quit notice Ex.A-2 giving one month time and it is contrary to the conditions stipulated in Ex.A-1 rental agreement and hence the notice is not valid and the suit is not sustainable. It is stated that they sent the amounts, but the plaintiff returned the drafts without any reason. Along with reply notice dated 20.3.2007, the amount representing the old demand drafts, were sent and it was received by the plaintiff and subsequently also from March, 2007, the defendants have been paying the rents regularly. With these averments, the suit was sought to be dismissed. 5. Based on the above averments, the trial court framed the following issues for trial: 1. Whether the plaintiff is entitled for recovery of suit schedule property after evicting the defendants? 2. Whether the plaintiff is entitled for recovery of mesne profits at the rate of Rs.10,000/- per month from 1st March, 2007? 3. To what relief? 6. In support of the case of the plaintiff, P.Ws.1 and 2 were examined and Exs.A-1 to A-10 were got marked and on behalf of the defendants, D.W.1 was examined and Exs.B-1 to B-11 were got marked. 7. Appreciating the evidence available on record, the trial court held that after Ex.A-1, there is no written rental deed and in such circumstances as per clause 10 of rental deed, the lease period was terminated, which was not extended after three years and as such Ex.A-1 is not in force and is not binding on the plaintiff and as the tenancy is monthly tenancy ending by the end of every month, fifteen days notice is required to be issued under Section 106 of Transfer of Property Act, but the plaintiff has given one month notice and notice issued by the plaintiff under Ex.A-2, is valid and thus the plaintiff is entitled for recovery of the suit premises by evicting the defendant and with regard to mesne profits, as the plaintiff failed to lead any evidence to show that the suit schedule premises fetches Rs.10,000/- per month, the court below answered this issue in the native and accordingly decreed the suit in part and directed the defendants to vacate the suit schedule premises in two months. 8. Aggrieved by the same, the defendants/tenants filed first appeal in A.S.No.599/2007 on the file of II Additional Chief Judge, City Civil Court, Hyderabad. The lower appellate court based on the material available on record, framed the following issue for consideration: Whether there is valid quit notice issued by the plaintiff and if not, whether the suit is not maintainable? 9. Based on the material on record, the lower appellate court by judgment and decree dated 15.7.2008, held that the notice dated 5.2.2007 under Section 106, issued by the plaintiff is bad in law and accordingly dismissed the suit for want of proper and legal quit notice in terms of Ex.A-1 rental agreement. 10. Aggrieved by the same, the landlord filed the present second appeal. 11. The learned counsel appearing for the appellant contended that the tenant was a willful defaulter and he also failed to vacate the suit premises in spite of issuance of notice. He stated that as per clause 10 of Ex.A-1 rental agreement, the period is only eleven months and it can be extended after eleven months, but not exceeding three years. Thereafter, after the expiry of Ex.A-1, which was executed on 22.9.1998, no rental agreement is in force and in such a case, the tenancy is month to month and when there is no agreement, though the lease is for manufacturing purpose i.e., for the purpose of running backery business, six months notice under Section 106 of T.P. Act is not necessary and fifteen days notice is sufficient and in the present case one month notice is given. In support of his contention that six months notice is not required for the manufacturing lease of immovable property from month to month and that fifteen days notice is sufficient, he relied on the judgment of the Apex Court in SHRI JANKI DEVI BHAGAT TRUST AGRA v. RAM SWARUP JAIN (DEAD) PER LRs.[1], INDER SAIN BEDI v. M/S CHOPRA ELECTRICALS[2],M/S UPTRON POWERTRONICS LTD. v. G.L. RAWAL[3], and M/S OASIS BAR AND RESTAURANT v. P.UMABALA[4]. He further contended that Ex.A-1 is not registered and hence it cannot be constructed as a lease extended beyond one year. In support of this contention, he relied on the judgment of the Apex court in ANTHONY v K.C.ITTOOP AND SONS[5] and K.RACHAMMA v. BIMAL BAI[6]. He alternatively contended that Ex.A-1 is not registered document and hence not admissible in evidence . He stated that it can be looked into only for purpose of showing the nature of possession and it cannot be used for any other purpose like proving the amount of rent or the period of lease. In support of this contention, he relied on the judgment of a learned single Judge of this court in S.K.AGARWAL v. M.VENKATESWARLU[7]. With these contentions, he sought to set aside the judgment and decree of the lower appellate court in holding that Ex.A-2 notice is defective and restore the judgment and decree of the trial court. 13. On the other hand, the learned counsel for the defendant contended that Ex.A-1 rental deed was got marked by the plaintiff himself and hence he cannot contend that Ex.A-1 is not admissible in evidence. He stated that though the rental deed is not registered as it is admitted and marked in evidence, without any objection, such objection cannot be raised at the appellate stage. In support of this contention, he relied on the judgments of the Apex Court reported in JAVER CHAND v. PUKHRAJ SUBANA[8], ANNAMALAI v. VEEAPPA[9], CH.VENKATA RAO v. T.RAMAKRISHNA[10], MRS. SUDERSANAM v. S.VENKATARAO[11]. He further submitted that under clause 10 of Ex.A-1 agreement, the tenancy stands renewed and extended for further consecutive period of eleven months each, however not exceeding three years in total. The said clause further stipulates that in case if the tenant intends to stay beyond the period of three years, the rents shall increased and enhanced by five per cent of the rent stipulated and all other terms and conditions will remain same. And under clause 11, six months notice was contemplated to both the parties ie. If the tenant intents to vacate the suit premises, he shall have to give six months prior notice and in case the landlord requires the suit premises, he has to give six months notice to the tenant for vacating the premises. He stated that when Ex.A-1 rental deed is admitted by both the parties, evidence to show that intention was otherwise than the contents of Ex.A-1, is not permissible under Section 92 of the Evidence Act. In support of this contention he relied on the judgment of this court in M.SAI REDDY vs. L.BALAIAH[12]. With these submissions, supporting the judgment and decree of the lower appellate court, he sought to dismiss the first appeal. 14. This court admitted the second appeal to consider the following question of law: “The point to be considered in the appeal is as to whether the lower appellate court is justified in holding that six months notice is necessary though Ex.A-1 rental agreement is in subsistence at the date of filing the suit.” 15. There is no dispute with regard to the jural relationship between the parties. Both the parties are heavily relying on Ex.A-1. Though the counsel for the appellant contended that Ex.A-1 is not registered and hence it cannot be looked into, the said contention, cannot be countenanced in view of the law laid down in the judgments relied on by the counsel for the respondents (9,10,11 and 12 supra), for the reason that the appellant himself marked the document and when the said document was admitted in evidence without any objection, at the appellate stage raising objection with regard to its admissibility, cannot be permitted. 16. Clauses 10 and 11 in Ex.A-1 are important. They are extracted as under: “10. The Tenancy shall stand renewed and extended for further consecutive period of (11) Eleven months each, however not exceeding 3 (three) years in total if the First Party so chooses, in which case all the terms and conditions stipulated in and under this agreement including the rents shall remain in Act and unchanged. However, where the First Party likes to stay on even beyond the aforesaid period of (3) years, the rents shall stand increased and enhanced by 5% of the rent stipulated herein under, and all other terms and conditions will remain the same. 11. If the first party intends to vacate the scheme shops he may do so by giving notice in respect thereof to the second party, 6 tenancy month in advance following the month of receipt of such notice by the Second Party, where the Second Party wants to terminate the Tenancy of the First Party he too may do so by serving a similar notice on the first party (6) six tenancy months in advance.” 17. From a reading of the clause 10 it is clear that the tenancy can be extended even beyond three years, subject to enhancement of rent by five percent on the stipulated rent and that all other terms and conditions will remain the same. There is no dispute that the tenancy continued beyond three years and there was enhancement of rent as stipulated in clause 10. As per this clause 10, the all other terms and conditions will remain the same. Therefore clause 10 of the rental agreement was acted upon by the parties. Coming to clause 11, it stipulates that in case the tenant intents to vacate the suit premises, he shall issue six months prior notice and similarly, in case the landlord intents to terminate the tenancy, he shall also issue six months notice. 18. As already noted above, the tenancy extended beyond three years and the rent was also enhanced as stipulated in the agreement and in such circumstances, it has to be taken that Ex.A-1 rental agreement is in substance and has been acted upon by the parties and as per cause 10, all other conditions shall remain the same, and in such a case, condition under clause 11 with regard to issuance of six months notice by the landlord to the tenant, also remain in force. Further as contended by the counsel for the respondents when the intention of the parties to the agreement is clear from clauses 10 and 11, contending that the intention was otherwise, cannot be sustained. 19. There is no dispute and also as per the law laid down in the judgments relied on by the counsel for the appellant, that if there is no contract between the parties the tenancy which is month to month, is terminable by issuing 15 days notice. But in the present case, there is contract between the parties to the contrary, stipulating the condition under clause 11 of the agreement that six months notice is required to be given by the landlord, in case he intents to terminate the tenancy. In such circumstances issuance of Ex.A-2 notice by giving one month notice, contrary to clause 11, cannot be sustained. The trial court failed to appreciate this issue in the right perspective, as did by the lower appellate court and hence the notice issued by the appellate under Section 106 is bad in law and the suit is liable to be dismissed for want of proper and legal quit notice. 20. The question of law framed by this court on 16.12.2009 is answered in favour of the respondent and I do not find any substantial question of law for interference of this court under Section 100 C.P.C. and hence the second appeal is dismissed, confirming the judgment and decree of the lower appellate court. No costs. AVS ----------------------------- 30—04—2010 [1] AIR 1995 SC 2482 [2] AIR 2004 SC 4430 [3] AIR 1999 DELHI 377 [4] AIR 2002 AP 465 [5] AIR 2000 SC 3523 [6] 1996(2) ALD 379 [7] 2002(3) ALD 186 [8] AIR 1961 SC 1655 [9] AIR 1956 SC 12 [10] AIR 1977 AP 247 [11] AIR 1963 AP 442 [12] 1997(6) ALT 321