IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED:19.01.2011 Coram: THE HONOURABLE MR.JUSTICE G.RAJASURIA S.A.No.63 of 2011 and M.P.No.1 of 2011 S.Begum .. Appellant/Defendant vs. 1. R.Praveen Kumar 2. Prasanna Lakshmi both rep. By their Power of Attorney M.Ramamurthy .. Respondents/Plaintiffs This second appeal is filed against the judgment and decree dat 02.06.2010 made in A.S.No.204 of 2009 on the file of the V Addl. Judg City Civil Court, Chennai in reversing the judgment and decree dat 12.09.2008 in O.S.No.4005 of 2007 on the file of VIII Asst. Judge, Ci Civil Court, Chennai. For Appellant : Mr.V.V.Giridhar For Respondents : Mr.K.V.sundararajan J U D G M E N T This second appeal is focussed animadverting upon the judgement a decree dated 02.06.2010 passed in A.S.No.204 of 2009 by the learned Addl. Judge, City Civil Court, Chennai, in reversing the judgment a decree of the learned VIII Asst. Judge, City Civil Court, Chennai. O.S.No.4005 of 2007. The parties are referred to hereunder according their litigative status and ranking before the trial Court. 2. The epitome and the long and short of the relevant fac absolutely necessary and germane for the disposal of this Second Appe would run thus: (a) The plaintiffs filed the suit seeking the following prayer: https://hcservices.ecourts.gov.in/hcservices/ - To direct the defendant to quit and deliver vacant possession of the schedule property to the plaintiffs; - To direct the defendant to pay a sum of Rs.20,000/- (Rupees twenty thousand only) as future damages per month, from the date of plaint till the date of handing over vacant possession of the schedule property to the plaintiff; - For permanent injunction restraining the defendant (or) her men from in any way of altering, alienating, encumbering (or) dealing with the schedule property." (extracted as such) (b) The defendant filed the written statement resisting the suit. (c) Whereupon issues were framed. On the side of the plaintiffs o Mr.M.Ramamoorthy was examined as P.W.1 and Exs.A1 to A10 were marked. T defendant examined herself as D.W.1 and Exs.B1 and B2 were marked. (d) Ultimately the trial Court dismissed the suit. Being aggriev by and dissatisfied with the same, appeal was filed. Whereupon, t appellate Court reversed the finding of the trial Court and decreed t suit as prayed for. 3. Challenging and impugning the judgment of the first appella Court, the tenant/defendant filed the Second Appeal on various groun inter alia to the effect that the first appellate Court failed to ta into consideration the factum of rent having been paid even after t alleged termination of tenancy by the landlord. In the earlier suit f injunction filed by the tenant as against the plaintiffs, judgment w passed in favour of the tenant and that would operate as res judicata against the landlord to file a suit for eviction. 4. The following proposed substantial questions of law are fou suggested in the memorandum of Second Appeal: "(1) Whether the notice of termination is held to be valid once the respondents/landlord accepted the rents and thereafter without any reservation? (2) Whether the injunction decree can operate as res judicata to the present appeal?" 5. Heard both sides. 6. On hearing both sides and on perusal of the typed set of papers am of the considered view that the following substantial questions of l should be framed: "(1) Whether there is any evidence to prove and https://hcservices.ecourts.gov.in/hcservices/ establish that after the termination of lease by issuing termination notice by the landlord, the tenant paid rent in stricto sensu, which was allegedly received by the landlord and if so, whether the first appellate Court failed to take note of the same? (2) Whether the first appellate Court was right in quantifying the damages for use and occupation in a sum of Rs.20,000/- per month when the actual agreed rent itself was Rs.8,000/- per month?" Point No.1: 7. The learned counsel for the appellant/defendant/tenant wou advance his arguments which could tersely and briefly be set out thus: (a) The tenant was continuously and interminably paying the rent issuing cheques and this relevant fact was not taken note of by the fir appellate Court. (b) It is a trite proposition of law that receipt of rent by t landlord after the alleged termination of tenancy would constitute fre tenancy itself between the landlord and the tenant, and in such a case t question of filing a suit for eviction would not arise. (c) The first appellate Court holus bolus at its own whims a fancies simply fixed the damages for use and occupation per month in a s of Rs.20,000/-, when in fact the agreed rent during the year 2005 was on Rs.8,000/-. Within a period of three years there could not have been 1/2 times increase in the rental value of the building. Accordingly, the learned counsel for the appellant prays for setting asi the judgment of the first appellate court and for restoring the judgme of the trial Court in dismissing the suit. 8. By way of torpedoing and pulverising the arguments as put for and set forth on the side of the appellant/defendant, the learned couns for the respondents/plaintiffs would expatiate and develop his argumen which could tersely and briefly be set out thus: (a) Absolutely there is no iota or shred, shard or molecular exte of evidence to display and demonstrate that even after the termination tenancy by the plaintiffs, the defendant paid rent and that it w received by the plaintiff. In the absence of such evidence, t appellant for the first time cannot try to press into service the pl that he continued to pay rent and that it was allegedly received by t landlord. (b) The first appellate Court placing reliance on the evidence P.W.1/the landlord appropriately and appositely, correctly a https://hcservices.ecourts.gov.in/hcservices/ convincingly quantified the damages for use and occupation per month in sum of Rs.20,000/- warranting no interference in the Second Appeal. Accordingly, the learned counsel for the respondents prays for t dismissal of the Second Appeal. 9. The first appellate Court took into account the fact that t tenancy was validly terminated by virtue of Ex.A9/Termination Noti ending with the tenancy month of April 2007, wherefore it is pellucid and palpably clear that 15 days notice was given. Over and above th the suit itself was filed on 24.06.2007 for eviction long after 15 da from the date of termination of tenancy and in such a case, the questi of finding fault with the termination notice would not arise. 10. The pertinent point to be considered is as to whether aft 30.04.2007 the tenant paid rent as claimed by him to the landlord a whether the landlord received without any demur any amount as rent. T animus is the most important factor. The learned counsel for t plaintiff would correctly point out that unless and until there is cle and clinching evidence to demonstrate and exemplify that the landlo received rent even after terminating the tenancy, the question fastening the plaintiff with any liability to accept the alleged fre tenancy would not arise. He would also hasten to add that the chequ issued by the defendant were received by the plaintiffs, not towar rent, but in commensurate and in concinnity and in parimateria with t claim made by him for damages for use and occupation. 11. I could see considerable force in his submission. Absolute there is no pint or jot of evidence on the side of the defendant highlight and spotlight the fact that those cheques issued by the tena even after termination notice, were received by the plaintiff only towar rent. In such a case, automatically no presumption would arise that tho cheques issued by the defendant after termination notice, were received the plaintiff only towards rent. In such a case, I am of the consider view that the first substantial question of law should be decided against the appellant/defendant and in favour of the plaintiffs. POINT NO.2: 12. A mere poring over and perusal of the judgment of the fir appellate Court would speak volumes to the effect that the first appella Court was not at all justified in indulging in surmises and conjectur and that too based on the scanty and patchy evidence of P.W.1, who is interested witness. Indubitably and indisputably, the building is a n one. However, the tenancy itself commenced during the year 2005. The su was filed in the year 2007 almost two years thereafter and in such a ca there could be no justification on the part of the landlord to cla damages for use and occupation in a sum of Rs.20,000/- per month, so say 2-1/2 times more than the rental value of the building. When wi https://hcservices.ecourts.gov.in/hcservices/ wide open eyes, the rent was agreed as Rs.8,000/- in the year 2005, I at a loss to understand as to how during the year 2007 the rental val would have got increased by 2-1/2 times. This basic common sen principle was not taken into account by the appellate Court warranti interference in the Second Appeal. 13. The learned counsel for the plaintiffs would in all fairne submit that perhaps the fixation of damages for use and occupation by t first appellate Court might be on the higher side, however taking in account the prevailing high rate of rent in that area, viz., Saligrama the quantification can be allowed to remain as such. 14. Whereas, the learned counsel for the defendant would submit th unless there is evidence to establish and demonstrate that Rs.20,000/- p month would be the rental value for the building, it cannot be fixed in sum of Rs.20,000/- towards damages for use and occupation. 15. I would like to point out incidentally that mutatis mutandis t provisions relating to fixation of rent under the Tamil Nadu Buildin (Lease and Rent Control) Act should have been resorted to for the purpo of quantifying the rental value of the building and consequently f assessing the damages for use and occupation, but that exercise was n undertaken by the first appellate Court. If the matter is now remanded the first appellate Court, it will cause more damage to either parties a the remedy would worse than the disease. As such, by applying the rou and ready method, I am of the view that the earlier rental value Rs.8,000/- could be increased by half its extent and this Court cou ultimately quantify it in a sum of Rs.12,000/- per month. I am ful aware of the fact that even rough and ready method should not be resort to by the trial Court and the first appellate Court. However, since t matter is at the stage of Second Appeal and the matter has to be dispos of, for enabling the parties to have finality in the litigative proces I have resorted to this rough and ready method in quantifying the damag for use and occupation with regard to the building concerne Accordingly, the second substantial question of law is decided to t effect that the damages for use and occupation per month should reduced to Rs.12,000/- per month from the date of suit till the date payment. 16. The learned counsel for the appellant would also submit th already certain amounts have been paid by way of cheques and if necessarily, the plaintiff should give due deduction to it and it is all matter of calculation. Accordingly this Second Appeal is disposed of. costs. Consequently, connected miscellaneous petition is closed. https://hcservices.ecourts.gov.in/hcservices/ 17. I am of the view that six months' time from today could granted for the appellant/defendant/tenant to hand over the possession the respondents/plaintiffs, subject to payment of future damages for u and occupation every month at the aforesaid rate without committi default during that period of six months from today and an affidavit that effect shall be filed within a period of fifteen days from the da of receipt of a copy of this order. Gms Sd/- Asst. Registrar //True Copy// Sub Asst. Registrar To 1. V Addl. Judge, City Civil Court, Chennai . 2. VIII Asst. Judge, City Civil Court, Chennai. + 1 cc to Mr.V.Giridhar Advocate SR.3505 + 1 cc to Mr.K.V.Sundararajan, Advocate SR.4204 S.A.No.63 of 20 MBS (CO) RRI/19.5.2011 https://hcservices.ecourts.gov.in/hcservices/