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2006 Supreme(AP) 1513
IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD
L. NARASIMHA REDDY, J.
St. Marys Educational Society, rep. by its Secretary and others -Appellants
Versus
Dr. Qutubuddin Ahmed and others -Respondents
Second Appeal Nos.1293 of 2003 and 1126 of 2005
Decided on 13-12-2006.
Advocates appeared :
Mr. B. Natin Kumar, Counsel for the Appellants.
Mr. V. Venkataramana. Counsel for Respondent Nos.1 and 2.
Headnote:
Transfer of Property Act – Section 53-A – Civil Procedure Code – Order XX Rule 12 – Sale of Property – Possession – Whether there existed a valid lease in favour of the defendants, up to the year 2017 – Whether the defendants are entitled for the benefit under Section 53-A of the Act – Whether the decree passed in the suit, insofar as it relates to the deposit of RS.30,00,000/-, as compensation, for the building, accords with the prayer in the suit, or suffers from any infirmity – Whether the courts below were justified in passing a decree for mesne profits, without ordering any enquiry into it – Held, Courts below have unfortunately omitted to take these aspects into account, and have straightaway passed a decree for mesne profits for the period subsequent to the date of filing of the suit – There is clear infraction of the mandatory procedure prescribed under C.P.C – Decree passed by the trial Court, as modified by the lower Appellate Court for mesne profits: accordingly deserves to be set aside – Plaintiffs would be entitled for a decree for eviction of the defendants, but as a condition precedent, the value of the building must be assessed by appointing a Chartered Engineer, and so assessed, must be paid the cost of the building – Plaintiffs are entitled for a decree, for the rents up to the date of filing of the suit, and for subsequent period, it shall be open to them to file an application for appointment of a Commissioner, for ascertainment of the same – Plaintiffs are running an Educational Institution, they deserve to be granted reasonable time – Second Appeals Partly Allowed
These two Second appeals are filed by the defendants 1 to 3 in O.S.No.610 of 1997. on the file of the II Senior Civil Judge, City Civil Court, Hyderabad. The parties to both the Second Appeals are common. The respondents 1 and 2 filed the suit, for the relief of delivery of vacant possession of the plaint schedule property, on payment of the value of the suit building, to be ascertained by a Commissioner, that may be appointed by the court. They also claimed mesne profits, at the rate of RS.35/- per sq. feet, per month, from the date of filing the suit, till the date of delivery of possession. . Respondents 4 and 5 in the appeals were impleaded as defendants 4 and 5, in the suit. For the sake of convenience, the parties are referred to, as arrayed in the suit.
2. The plaintiffs are the owners of premises bearing door No.3-6-137, Himayatnagar, Hyderabad, admeasuring 1,612 sq. yards, with an old building, thereon. The 1st defendant is an Educational Society defendants 2 and 3 are its members. With a view to establish and run a Junior College in the said premises, defendants 1 to 3 (for short "the defendants") approached the plaintiffs. Both of them agreed on certain terms, such as, that the suit schedule property shall be leased for a period of 15 years, w.e.f 2-1 0-1987 to the defendants, that a building shall be constructed by the defendants, with their own funds, in accordance with the plan to be sanctioned in the name of the plaintiffs by the Municipal Corporation of Hyderabad, that the defendants shall deposit a sum of Rs.50,000/-, and that the monthly rent shall be RS.7 ,000/-. Initially, an agreement was entered into on 11-8-1986. Thereafter, a lease deed was executed on 2-1 0-1987, but it was not registered.
3. The defendants were inducted into possession and construction was undertaken. Few years thereafter, notices were exchanged between the parties, in the matter of, payment of certain additional amounts, as advance to the plaintiffs. Alleging that the defendants constructed large halls in the 5h floor of the building, without permission from the Municipal Corporation of Hyderabad, failed to demolish an old structure, which too was a condition Imposed by the Municipal Corporation, for undertaking new construction, and that they have subleased part of the premises in favour of defendants 4 and 5, the plaintiffs got issued legal notice dated 20-2-1997.The defendants, in turn issued a reply dated 3-3-1997 denying the allegations contained in the notice. Not being satisfied with the reply issued by the defendants, the plaintiffs filed the suit for the reliefs referred to above.
4. On behalf of the defendants, a common written statement was filed. It was alleged that on their own accord, the plaintiffs have agreed to extend the period of lease till the year 2017 beyond the initial period of 15 years, and received a sum of Rs.6,00,000/-, as advance.
As regards the alleged deviation from the plan, they pleaded that the plaintiffs themselves filed a suit in the Court of X Assistant Judge, City Civil Court, Hyderabad, and obtained a decree for regularization of minor deviation. It is stated that while extending the period of lease, several conditions, such as, increase of the rent by 15%, for very span of 5 years, was agreed to. They flatly denied the sublease of the premises in favour of the defendants 4 and 5. They contended that the plaintiffs are in the habit of making unreasonable and unjust demands for payment of huge amounts, without any basis, and that the suit is not maintainable, since it is filed before the expiry at agreed period. The rate at which the mesne profits were claimed is stated to be excessive and unreasonable.
5 During the pendency of the suit defendant No.4 died and his legal representatives were not brought on record.
Defendant No.5 was set ex parte.
6. Through its judgment dated 20-1-2003, the trial court decreed the suit, directing that the plaintiffs shall pay a sum of Rs.30,00,000/towards cost of
