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1992 Supreme(AP) 499
Andhra Pradesh High Court
Judges : I.P.RAO
Mir Liyaqat Ali - Appellant
Versus
Mohd.Yousuf - Respondent
Decided On : 09-25-92
The court held that the civil court had jurisdiction to entertain the suit as the suit shop was a subsequent construction and was exempt under G. O. Ms. No. 636 dt. 29-12-83.
Headnote:
RENT CONTROL - ARREARS OF RENT - MESNE PROFITS - JURISDICTION OF CIVIL COURT - EXEMPTION UNDER G. O. MS. NO. 636 DT. 29-12-83 - VALIDITY OF QUIT NOTICE - TRANSFER OF PROPERTY ACT, SEC. 106.
Fact of the Case:
Plaintiff filed a suit for recovery of possession of the suit mulgi after terminating the tenancy of the defendant for arrears of rent and for recovery of mesne profits. The trial court decreed the suit with respect to the relief of recovery of possession and also decreed the arrears of rent for a specific period. The plaintiff challenged the dismissal of the suit with regard to disallowing of arrears of rent for a specific period and refusing to award mesne profits as claimed in the plaint. The defendant challenged the decree for recovery of possession.
Finding of the Court:
The court found that the rent stipulated for the suit premises was Rs. 350/- per month and the plaintiff was entitled only for damages for use and occupation at that rate. The court also found that the suit shop was a subsequent construction and was exempt under G. O. Ms. No. 636 dt. 29-12-83, and therefore the civil suit was maintainable. The court further found that the quit notice issued by the plaintiff was valid and in compliance with Sec. 106 of the Transfer of Property Act.
Issues: 1. Whether the plaintiff was entitled to arrears of rent and mesne profits as claimed in the plaint? 2. Whether the civil court had jurisdiction to entertain the suit? 3. Whether the quit notice issued by the plaintiff was valid?
Ratio Decidendi: 1. The court held that the plaintiff was entitled to damages for use and occupation at the rate of Rs. 350/- per month, as the rent stipulated for the suit premises was Rs. 350/- per month. 2. The court held that the civil court had jurisdiction to entertain the suit as the suit shop was a subsequent construction and was exempt under G. O. Ms. No. 636 dt. 29-12-83. 3. The court held that the quit notice issued by the plaintiff was valid and in compliance with Sec. 106 of the Transfer of Property Act, as the landlord had given the tenant an option to choose any one of the suggested dates for termination of tenancy and to vacate the premises.
Final Decision: The court dismissed both the appeals, confirming the decision of the lower appellate court. The defendant was granted two months time for vacating the suit premises.
( 1 ) THESE two appeals arise out of a common judgment disposing of two connected appeals A. S. No. 98/90 and A. S. No. 58/90 by the learned Additional chief Judge, City Civil Court, Hyderabad.
( 2 ) ORIGINAL Suit No. 1834/87 on the file of the Court of the Vth Assistant Judge city Civil Court, Hyderabad was filed for recovery of possession of the suit mulgi after terminating the tenancy of the defendant for arears of rent at the rate of Rs. 350/- per month from 1-4-86 till the end of November 1986 and for recovery of mesne profits at the rate of Rs. 600/- per month. The trial Court decreed the suit with respect to the relief of recovery of possession and also decreed the arrears of rent for the period from 1-8-86 till the end of November 1986.
( 3 ) CHALLENGING the dismissal of the suit with regard to disallowing of arrears of rent from 1-4-86 till the end of July 1986 and refusing to award mesne profits at the rate of Rs. 600/- per month as claimed in the plaint the plaintiff has preferred A. S. No. 98/90. The defendant filed A. S. No. 58/90 challenging the decree for recovery of possession. The learned appellate Judge on a consideration of the contentions put forth by both sides, has dismissed both the appeals.
( 4 ) THE plaintiff preferred Second Appeal No. 748/91 challenging the dismissal of A. S. No. 98/90 whereas the defendant has filed Second Appeal No. 530/91 challenging the dismissal of A. S. No. 58/90.
( 5 ) THE substantial questions of law on which Second Appeal No. 748/91 is admitted pertain to the arrears of rent from 1-4-86 to 31-7-86 and the mesne profits.
( 6 ) THE only substantial question of law on which the Second Appeal no. 530/91 is admitted is that the conversion of the old room into a shop without demolition and construction of fresh basement does not amount to a new construction, thereby attracting the exemption under G. O. Ms. No. 636 dated 29-12-83.
( 7 ) BOTH the courts below have arrived at a concurrent finding of fact that the rent stipulated for the suit premises is Rs. 350/- (Rupees three hundered and fifty only) per month and as such the plaintiff is entitled only for damages for use and occupation at Rs. 350/- per month. The courts did not accept the plaintiff s contention that he is entitled for damages at Rs. 20/- per day and held that the said claim is without any basis.
( 8 ) AS regards Second Appeal No. 530 of 1991 it is contended that the civil court has no jursidiction to entertain the suit because the demised premises is a part of old construction existing since 40 years prior to this suit. But the lower appellate court relying upon the recitals in Exs. A-5 to A-9 which are marked by way of additional evidence during the appeal held that the suit shop is a subsequent construction. Ex. A-5 shows that permission was soughtfor removal of roof covered by portions marked as a in that plan. Ex. A-8 sale deed of the year 1969 shows that the subject matter of that sale consisted of one varandah of 10 x 6 feet, one room measuring 12 x 8 feet, one store room measuring 8 x 6 feet and kitchen of 9 x 6 feet. But Ex. A-9 gift deed shows that four rooms and two shop rooms towards the road were gifted to the plaintiff and admittedly one of two shoppremises is the subject matter of dispute. The above documentary evidence clearly supports the view taken by both the courts below that the shop premises which is the subject matter of suit was constructed subsequent to the demolition of the existing building. Whether that construction was made legally or illegally is not a relevant question here. Inasmuch as the construction of the demised premises is subsequent to the date of Ex. A-5,1 hold mat it is exempt under G. O. Ms. No. 636 dt. 29-12-83 and as such the civil suit is maintainable.
( 9 ) THE learned counsel for the appellants in Second Appeal No. 530 of 1991 tried to argue that Ex. A-2 quit notice issued by the plaintiff is invalid and illegal and on that ground also the d
