A.S No. 362 OF 2011
Smt. Hashimunnisa Begum and another
THE HON’BLE SRI JUSTICE K.C. BHANU
A.S No. 362 OF 2011
This appeal is directed against the judgment and decree dated
30-04-2011 in O.S No.904 of 2008 on the file of the II Additional District Judge, Ranga Reddy District at L.B. Nagar, Hyderabad whereunder and whereby the suit filed by the respondent – plaintiff for eviction of the defendants from the plaint schedule property was decreed.
2. The brief facts that are necessary for the disposal of the appeal may be stated as under:
The case of the respondent – plaintiff is that she is the owner of the suit schedule property which was let out to the defendants for a period of 20 years by registered lease deed dated 18-08-1967. On expiry of the lease period it was informed to the defendants that the lease could not be extended. But as the defendants insisted, on the prerogative of the plaintiff as per the lease deed, she agreed and extended the period of lease for another 20 years i.e., up to 31-03-2007. As the lease stood determined by efflux of time, the plaintiff informed the defendants well before expiry of lease that the lease would not be extended for any further period and demanded them to vacate the premises. The plaintiff reiterated the demand through E-mail communication and also by personally meeting the Territory Manager of the defendants and others at the Regional Office of the defendants in January, 2006. According to the plaintiff, it is for the defendants to take all necessary steps for shifting of the petrol bunk and they failed to search for alternative arrangement. Thus, they have no right to continue in the schedule property after expiry of the lease period and their possession on expiry of the lease is nothing but unauthorised and illegal. The 1st defendant instead of vacating the suit schedule property filed a suit in O.S No. 715 of 2007 against the plaintiff for perpetual injunction and also filed an application in I.A No. 684 of 2007 therein for interim injunction which was dismissed by the trial Court on 08-06-2007. Questioning the same, the 1st defendant filed C.M.A No. 231 of 2007. It is the case of the plaintiff that all the time the defendants represented that they were searching for an alternative accommodation and that they enjoyed the property by installing the petrol bunk on a meagre rent of Rs.200/- per month for the first ten years and thereafter, at the rate of Rs.350/- per month for all these years. Therefore, the defendants are liable to pay Rs.1,00,000/- per month as damages and compensation for illegal occupation and they are also liable to pay a sum of Rs.12,00,000/- for illegal occupation from the date of expiry of the lease period. Hence, the suit.
3. The 1st defendant filed written statement, but the 2nd defendant remained ex parte. In the written statement filed by it, the 1st defendant admitted about entering into lease deed and the terms thereof. It is stated that they requested the plaintiff for extension of lease and the plaintiff by her conduct made them to believe that the lease would be extended. The 1stdefendant addressed letter dated 23-01-2007 for renewal of the lease of the suit schedule property for a further period of 30 years commencing from 01-04-2007 to which the plaintiff issued reply on 29-04-2007 rejecting the request for renewal of the lease. According to the defendants, they were making efforts to secure an alternative site near the plaint schedule property and it requires minimum of six months to one-year time to reallocate and shift the petrol bunk outlet to the new premises. The refusal on the part of the plaintiff to renew the lease came to the knowledge of the 1st defendant on 29-01-2007 and in view of development in and around Shamshabad, it became very difficult for the 1st defendant to locate an alternative site to shift the 40 years old petrol bunk. The defendant requested the plaintiff to give six to twelve months’ time to shift the petrol bunk to another site and apprising all these aspects to the plaintiff it requested to give time and obtained appropriate orders from the government authorities, but there is no response from the plaintiff. According to the 1st defendant, the plaint schedule property had no value at the time the defendants entered into lease with the plaintiff and only on installation of the petrol bunk that the property gained value. The 1st defendant had no intention to remain in the plaint schedule property and it only requires time to shift the petrol bunk to an alternative suitable site. The defendants are ready and willing to pay the reasonable amount if enhanced to the plaintiff till it vacates and handovers the vacant possession of the plaint schedule property but it is not liable to pay the amount claimed as damages. Hence, the suit may be dismissed.
4. On the basis of the above pleadings, the following issues were settled for trial by the trial Court:
1) Whether the plaintiff is entitled to an order of eviction against the defendants as prayed?
2) Whether the plaintiff is entitled to suit claim of Rs.12,00,000/- as prayed?
3) Whether the plaintiff is entitled for the mesne profits @ Rs.1,00,000/- as prayed?
4) To what relief?
5. On behalf of the respondent – plaintiff, she examined herself as
PW 1 and got marked Exs.A-1 to A-3. On behalf of the first defendant, its Sales Manager was examined as DW 1, but no documents were marked. The trial Court after considering the evidence on record came to the conclusion that the defendants are liable to vacate the premises as the lease period came to an end by 31-03-2007 and directed the defendants to pay damages for use and occupation at the rate of Rs.10,000/- per month from the date the lease was expired by efflux of time till the date of filing of the suit and at the rate of Rs.25,000/- per month from the date of filing of the suit till the defendant vacates and delivers vacant possession of the schedule property to the plaintiff with interest at the rate of 12% per annum and accordingly decreed the suit. Challenging the same, the present appeal is filed.
6. The learned counsel for the appellant contended that the first respondent – plaintiff by her own conduct made the appellant – defendant No.1 to believe that the lease would be extended beyond
31-03-2007; that the appellant is running a retail outlet of petroleum products and it is not in a position to secure an alternative premises for shifting the retail outlet; that awarding of Rs.25,000/- per month towards damages is not established and proved by any documents and, that therefore, he prays to set aside the judgment and decree passed by the trial Court.
7. On the other hand, the learned counsel for the respondent No.1 – plaintiff contended that since the lease period is over by 31-03-2007, the appellant is not entitled to continue thereafter in the premises and that in the written statement, the appellant specifically pleaded that they would vacate the premises within six months or one year and even that period has elapsed and, therefore, the trial Court has rightly decreed the suit and that as the premises in question is located in a strategic locality, it would get not less than Rs.50,000/- per month as rent and therefore, the trial Court rightly awarded Rs.25,000/- per month towards damages for use and occupation. He accordingly prays to dismiss the appeal.
8. The evidence of PW 1 would go to show that the appellant – defendant No.1 entered into lease agreement with the first respondent – plaintiff on 18-08-1967 for a period of about 20 years and later it was extended for another period of 20 years which came to an end by 31-03-2007. Ex.A-1 is the letter addressed by the plaintiff to the first defendant to vacate the premises. It is admitted by her that though request was made by the appellant to extend the lease period for another 30 years, she refused to do so. Practically, the evidence of PW 1 remained unchallenged. DW 1 who is examined on behalf of the defendant No.1 stated that when the lease period expired, the company made a request to the plaintiff to extend the lease period for another 30 years. He also admitted that they intended to vacate the premises as soon as they secure a suitable accommodation. For that purpose, the appellant also identified some sites for retail outlet of the petrol bunk, but that was not materialised. So from the evidence on record, it is clear that the lease period expired by 31-03-2007. Further, a specific plea has been taken in the written statement that the appellant would require six months or one year time to vacate the premises to enable it to secure a suitable alternative site. That period is also over. Therefore, considering the evidence on record, the trial Court rightly decreed the suit directing the defendants to vacate and deliver vacant possession of the schedule property to the plaintiff, and it requires no interference by this Court. Insofar as awarding of damages for use and occupation after expiry of the lease period is concerned, the respondent – plaintiff claimed damages at the rate of Rs.1,00,000/- per month. There was a rapid growth in that area because of starting of international airport and sharp rise of rents in and around the plaint schedule premises. Considering these aspects, the trial Court rightly granted Rs.25,000/- per month towards damages for use and occupation. Considering the locality of the outlet and considerable increase of rents in that area, granting of Rs.25,000/- per month towards damages for use and occupation cannot be said to be on higher side or unreasonable. There are no grounds to interfere with the judgment and decree of the trial Court.
9. The appeal fails and is accordingly dismissed confirming the judgment and decree dated 30-04-2011 in O.S No.904 of 2008 on the file of the II Additional District Judge, Ranga Reddy District at L.B. Nagar. In the circumstances of the case, no order as to costs.
10. In view of the fact that for the last 40 years, the appellant is running a retail outlet petrol bunk, a reasonable time can be granted to enable it to secure alternative accommodation for the purpose of starting retail outlet. Accordingly, the appellant is granted time to vacate the premises till 31-12-2011.
K.C. BHANU, J