THE HON’BLE SRI JUSTICE N.R.L.NAGESWARA RAO C.C.C.A.NO.108 OF 2005, TR.CCCA.NOS.307 AND 335 OF 2007, C.R.P.NOS.5846 OF 2009 AND 5848 OF 2009 & CROSS OBJECT6IONS (SR) NO.11712 OF 2005 JUDGMENT: The defendant in O.S.Nos.1884, 1885 and 1886 of 2001 on the file of XI Additional Senior Civil Judge, City Civil Court, Hyderabad is the appellant in all the three appeals. The defendant is a tenant of premises situated at Rajbhavan Road, Hyderabad, in the schedule premises No. 6-3-1092-A/1 belonging to the plaintiffs. The premises was initially taken on lease for a period of five years from 01.11.1991 and after the expiry of the lease period of five years, it was mutually agreed by both the parties to renew the lease for a further period of five years and accordingly a registered lease deed was entered. It was agreed that the defendant shall vacate the premises by 31.10.1996 as per the registered lease deed, dated 28.10.1991. In C.C.C.A.No.108 of 2005, which arise out of O.S.No.1886 of 2001, the rent was claimed at Rs.27,000/- per month, in Tr.C.C.C.A.No.307 of 2007, which arise out of O.S.No.1885 of 2001, the rent was claimed at Rs.12,900/- per month and in Tr.C.C.C.A.No.335 of 2007, which arise out of O.S.No.1884 of 2001, the rent was claimed at Rs.23,100/- per month. According to the case of the plaintiffs, a notice was issued on 26.07.2001 by way of abundant caution intimating the defendant about the expiry of the lease period and for handing over the possession of the property. The defendant issued a reply disputing the validity of the termination. On 21.10.2001 the plaintiffs again issued a reminder informing the defendant that the lease expires by afflux of time after 31.10.2001 and the defendant has to deliver vacant possession of the premises by 01.11.2001. The plaintiffs also claimed mesne profits at the rate of Rs.1,00,000/- per month from the date of suit, till the date of eviction of the premises by the defendant. In all the three suits, the defendant has filed a common written statement contenting that at the time of entering into the lease agreement, as defendant has to spend huge amounts, the period of lease was agreed for 25 years and the plaintiffs have agreed for the same. But, however, the lease deed was executed only for a period of five years and therefore, the defendant claimed entitlement of possession for a period of 25 years. The defendant has also objected the terms in the lease agreement about the vacation of the premises after the expiry of the period, which was fixed in the lease agreement. It was also pleaded that there was no such agreement as pleaded. It was also further pleaded that the defendant is ready for reasonable enhancement and a reply was sent to the notice issued by the plaintiffs. The defendant has invested huge amounts and he is entitled to protect his possession as per the original understanding. The profits claimed by the plaintiffs are excessive and untenable. On the basis of the above pleadings in all the three suits, common issues were framed, which are as follows: 1) Whether the plaintiff is entitled for recovery of vacant possession of the suit schedule property by evicting the defendants as prayed for? 2) Whether the plaintiff is entitled for mesne profits at Rs.1,00,000/- p.m. from the date of suit till the date of recovery of possession as prayed for? 3) Whether the quit notice issued by the plaintiff is valid under law? 4) To what relief? On behalf of the plaintiffs, PW-1 was examined and marked Exs.A- 1 to A-8. On behalf of the defendant, DWs.1 and 2 are examined and marked Exs.B-1 o B-3. After considering the evidence on record, the learned Senior Civil Judge decreed the suits of the plaintiffs and granted time to the defendant for vacating the premises. Aggrieved by the said judgment, the present appeals are filed and as the lower court has not granted the mesne profits as claimed by the plaintiffs, cross objections were filed by the plaintiffs for determination of mesne profits. The points that arise for consideration are: 1) Whether the defendant is liable to be evicted from the schedule premises? 2) Whether the plaintiffs re entitled for the mesne profits and the cross objections are to be allowed? POINT NO.1: There is no dispute about the fact that originally the lease has commenced in the year 1991 and at that time, there was said to be a lease deed and subsequently after the lapse of five years, another lease deed Ex.A-1 was executed on 28.10.1991. According to the case of the defendant, there was original agreement for the lease of the premises for a period of 25 years, as the defendant is investing huge money, but the plaintiffs have advised to take a lease deed for a period of five years and therefore, Ex.A-1 was subsequently executed without the consent of the defendant. This contention of the defendant cannot be accepted. The lease deed is a registered lease deed and if at all the defendant wants to seek the original agreement of lease for 25 years, the defendant should have instituted a suit for specific performance of the agreement for that period of lease, but the defendant did not choose to do so. Therefore, the defendant is bound by the terms of a registered lease deed Ex.A-1, which was evidently executed by the defendant. In fact, as can be seen from the terms of the lease deed, there is no ambiguity about the terms. In fact, as can be seen from the terms of the agreement, it reads as follows: “Whereas the Lessor had under a registered Lease Deed Dated 28.10.1991 and Registered as document No.2473 of 1991 registered in the office of the Joint Sub-Registrar II, Mozamjahi Market, Hyderabad Leased out the premises to M/s.Sehgal Motors a proprietory concern of Mr.Karan Sehgal for a period of Five years from 1st November, 1991 to 31st October, 1996. Whereas under the terms of the said Registered Lease Deed the Lease may be extended for a further period of 5 years on mutually agreed rent and after the expiry of extended 5 years of the Lease the Lessee undertook to vacate the premises and handover the physical vacant possession to the Lessor without asking for any further extension beyond 31st October, 2001 at any rate.” From the reading of the above clause, it is quite clear that under the original lease deed, it was agreed for a period of 5 years and there after, an option was given to extend it for another period of five years and after 31.10.2001, there shall be no further extension between the parties. Therefore, the plaintiffs and the defendant are bound by the terms of the lease and therefore, by the stipulated terms in Ex.A-1, the lease comes to an end by afflux of time i.e., 31.10.2001. There after, the possession of the defendant in the premises can only be a trespasser and if there is any acceptance of rent or payment of the rent, it is a different situation. According to the case of the plaintiffs, a legal notice was issued to the defendant on 26.07.2001 and that after the expiry of the period of lease, i.e., 31.10.2001, the defendant shall surrender possession by 01.11.2001. According to the contention of the learned counsel for the appellant/defendant, the notice itself was issued by the plaintiffs for delivery of possession of the property by 01.11.2001 and the suits were filed on 01.11.2001 itself without waiting for the period stipulated in the notice and therefore, the suits are pre-matured. In support of his contention, the learned counsel for the appellant relied upon the judgments of the Supreme Court reported in VITHALBHAI PVT.LTD., VS. UNION OF INDIA[1], BEG RAJ SINGH VS. STATE OF U.P. AND OTHERS[2], M/S.BAY BERRY APARTMENTS PVT. LTD., AND ANOTHER VS. SHOBHA AND OTHERS[3] and KAMDO,A;;A RAGJAVAOAJ AMD CO., VS. NATIONAL INSURANCE CO. AND ANOTHER[4]. The reliance is placed more on the decision reported in VITHALBHAI PVT.LTD., VS. UNION OF INDIA (Supra-1), wherein it was held that merely because a suit is filed prematuredly, the court cannot dismiss the same but according to the counsel for the defendant, the plaintiffs having given the date for delivery of possession of the property, they cannot be allowed to institute the suits pre-maturedly. I do not find much strength in the contention of the learned counsel for the appellant. It is settled law that when the parties agreed that a particular lease shall terminate by afflux of time, the notice under Section 106 of Transfer of Property Act is not necessary. Merely because the landlords have alerted the tenant that his lease is going to expire by 31.10.2001 and deliver possession by 01.11.2001, the right of the landlords to institute the suit soon after the termination of the lease by afflux of time cannot be said to be defeated. In fact, the period of lease expires by 31.10.2001. Therefore, the contention that the suits having been filed on 01.11.2001 without the cause of action cannot be accepted as legally tenable. In fact, it was only a demand made by the landlords to vacate the premises by 01.11.2001. At no point of time, the defendant expressed willingness to deliver vacant possession of the property and on the other hand, the defendant wanted to stick on to the possession of the property and therefore, there is no point in arguing that by 01.11.2001, the cause of action for filing of the suit has not arisen. The decisions relied on by the learned counsel for the appellant have no application to the facts of this case and I have no hesitation to hold that the tenancy was terminated by afflux of time i.e., by 31.10.2001. The plaintiffs have got every right to institute the suits for eviction, since there seems to be some urgency for possession of the property and also the fact that there is no inclination on the part of the tenant to vacate the premises. Therefore, in view of the above circumstances, the points raised by the learned counsel for the appellant is invalid and mere issuance of notice calling upon the defendant to vacate the premises by 01.11.2001 does not confer any right of further continuation of the appellant in the suit premises. When once it is held that no notice under Section 106 of Transfer of Property Act is necessary, the right of the landlords to institute the suits for recovery of possession is valid and the tenant cannot raise any grounds of defence about the bona fides or the difficulties, which he expects to place. Therefore, the order of eviction by the learned Senior Civil Judge is in accordance with law and the contentions raised by the appellant are not tenable. So far as the cross objections are concerned, evidently, till 31.10.2001, the status of the defendant is only as a tenant and from 01.11.2001, the possession is unauthorised and therefore, the plaintiffs will be entitled for damages for use and occupation subsequent to the filing of the suit with effect from 01.11.2001. In fact, as can be seen from the judgment of the lower court, it has not considered this aspect and it has not denied the right of the plaintiffs for the mesne profits. It is also verymuch settled that under Order 20 Rule 12 C.P.R., even if the lower court has not granted the mesne profits during the pendency of the suit, the appellate court can consider the same and pass the necessary relief. In fact, the plaintiffs have filed cross objections valuing the mesne profits. As rightly contended by the learned counsel for the appellant that except the evidence of the plaintiff, there is no other evidence on record to show as to what is the quantum of mesne profits or damages for use and occupation of the plaintiff after 01.11.2001 and this has to be only determined by an enquiry to be conducted by the Commissioner in the lower court. Therefore, accordingly, the cross objections are to be allowed. In the result, C.C.C.A.Nos.108 of 2005, 307 and 335 of 2007 are dismissed and the cross objections are allowed and the lower court is directed to conduct enquiry into the quantum of the mesne profits or damages for use nad occupation for the period from 01.11.2001, for which, the plaintiffs will be entitled. The appellant is granted three months time for vacation of the premises. Till the determination of the mesne profits by the lower court, the appellant shall continue to pay the rents till the date of vacation of the premises. In view of the judgment in the main appeals, the learned counsel for the petitioner wants to withdraw the civil revision petitions and accordingly they are dismissed as withdrawn. Each party do bear their own costs. ______________________ N.R.L.NAGESWARA RAO J., Dt.24.03.2011 tjs. [1] ) 2005 (2) Supreme 518 [2] ) 2003 (1) SCC 726 [3] ) AIR 2007 SC 226 (1) [4] ) 2009 (9) SCALE 480