JUDGMENT
S.R.K. Prasad, J.
1. This appeal and cross-objections are directed against the judgment and decree passed in OS No. 521 of 1991 on the file of the learned I Additional Sub-Judge, Visakhapatnam.
2. The facts that arises for consideration can be stated briefly as follows:
Defendants are the appellants. It is admitted fact that Smt. Umabala, who is the 1st defendant, is the owner of the suit schedule building bearing No. 47-11-28, described in the schedule and it is located at Dwarakanagar, Visakhapatnam. The 2nd plaintiff, who is the husband, is said to have fitted fixtures and furnitures mentioned in the schedule to the said building. The plaintiff’s claim that the property was let out to one Sri P. Venkata Reddy for running a hotel under an unregistered lease deed dated 9-6-1980 initially for a period of three years on a monthly rental of Rs. 1,500/- for building proper and Rs. 1,000/- towards rent for fixtures in the building. The lease commenced from 1-7-1980. It is also the case of the plaintiffs that the said lease period in favour P. Venkata Reddy came to an end in June 1987 and thereafter the 1st defendant taken the said premises on lease on 1-7-1987. It is alleged by the plaintiffs that it was taken on lease agreeing to pay Rs. 3,000/- to the 1st plaintiff towards building rent and Rs. 1,500/- towards hire charges for fittings and fixtures to the 2nd plaintiff. It is also pleaded that the 1st defendant was running hotel business in the name and style of Oasis Bar and Restaurant as a tenant from month to month. Rents are payable on 1st April, 1990. It is further alleged that from 1-4-1990 till the end of June, 1990 the first defendant was paying enhanced rent of Rs. 4,500/-by cheque for the building proper and Rs. 2,000/- each for the fitting and fixtures under two different receipts issued by the first and second plaintiffs separately. The plaintiffs have come with a version that the 1st defendant promised to vacate the premises by the end of July, 1991 and also agreed to pay the enhanced rent for the period July, 1990 to July, 1991 at the rate of Rs. 5,500/- for the building proper and the same existing rent of Rs. 2,000/- for the fixtures. It is further the case of the plaintiffs that instead of paying enhanced rent of Rs. 5,500/- for the building from July, 1990 onwards, the 1st defendant continued to pay Rs. 4,500/- for the building proper, while pressing to pay the balance of rent i.e., 1,000/- at a later date. It is alleged that the plaintiff issued the quit notice dated 30-7-1991 to both the defendants viz., defendants 1 and 2 terminating the tenancy with effect from mid-night of 31-8-1991 and called upon to vacate the premises.
3. It is stated that 1st defendant died during the pendency of the matter and the other defendants were impleaded, who are said to the managing partners of the 2nd defendant. As the defendants did not vacate the premises, the plaintiffs have filed the suit for eviction against the defendants from the scheduled premises and for recovery of vacant possession along with the fixtures and also sought for arrears of rent. The plaintiffs also claimed damages for use and occupation of the building from 1-9-1991 to 30-9-1991 and also for subsequent damages from the date of suit i.e., from 1-10-1991.
4. The 1st defendant died during the pendency of the suit, even before filing of the written statement. 2nd defendant filed written statement signed by P. Narayana Reddy. Defendants 4 to 6 filed a memo signed by the Counsel adopting the written statement filed by the 2nd defendant on all aspects.
5. The contentions raised by the defendants and canvassed before this Court can be briefly summarised as follows:
The 1 st contention is that the lease taken by P. Venkata Reddy for carrying on the business by entering into a partnership with nine others under the name and style of Oasts Bar and Restaurant has been continued. It is also claimed that it was leased out for seven years commencing from 1-7-1980 on a monthly rent of Rs. 1,500/- for the building and Rs. 1,000/- for fitting and fixtures for three years and Rs. 2,000/- and 1,000/- for the next two years from 1-10-1983. It is also stipulated that further enhanced rent of 10% is payable over Rs. 3,000/- for the remaining period. The said lease agreement also provides a refundable advance of Rs. 50,000/- and the same has been acknowledged by the plaintiffs. It is also further stipulated that it shall not carry any interest. The 2nd contention is that the partnership firm was reconstituted on account of retirement of three partners from 1-10-1983 by taking the 1st defendant herein as new partner under a partnership deed executed and it was again reconstituted with effect from 1-4-1989 on account of retirement of three partners including the above referred P. Venkata Reddy. It is also alleged that copies of the partnership deeds were given to the plaintiffs. The 3rd contention was that the building was taken on lease by 2nd defendant-partnership firm and not by the 1 st defendant and it was not correctly set out. The 4th contention is that the current rent is Rs. 3,000/- and Rs. 1,500/- payable towards fixtures and fittings, and the total of it comes to Rs. 4,500/-and the same is regularly paid by the 2nd defendant. The 5th contention is that when the rent for September 1991 was sent by a cheque as usual it was refused and when again rent for September, 1991 and October, 1991 was sent in November, 1991 they were again refused. Later on 14-12-1991 when it was sent by registered post it was also refused. The agreed rents are deposited by opening an account in the State Bank of Hyderabad, in Dwarakanagar Branch, at Visakhapatnam. The 6th contention is that quit notice dated 30-7-1997 issued determining the tenancy is not valid and is continuing under the original agreement as tenant holding over after expiry of the period. The 7th contention is that the claim for arrears of rent at Rs. 12,000/- is fictitious. The amount of Rs. 14,000/- claimed towards damages subsequent to filing of the suit as astronomical and the suit premises is not capable of fetching more than Rs. 4,500/-, the 8th contention is that the notice served on the alleged managing partner of the 2nd defendant is not a partner, and muchless a managing partner. Hence the defendants have sought for dismissal of the suit.
6. After trial, the 1st Additional Sub-Judge, Visakhapatnam directed eviction of defendants from the suit scheduled premises. He has also decreed the plaintiffs’ claim for arrears of rent of Rs. 4,000/- and for fixtures and fittings at Rs. 2,000/- per month from the months of July, 1991 and August, 1991. He has also held that the plaintiffs are not entitled to damages at the rate of Rs. 14,000 for use and occupation of the building from 1-9-1991 to 30-9-1991. He has also held that the plaintiffs are entitled for future damages at the rate of Rs. 4,500/- towards building rent and Rs. 2,000/- towards fixtures and fittings from 1-9-1991 from the date of the suit.
7. Aggrieved by the same defendants 2 to 6 preferred AS No. 458 of 1997; whereas plaintiffs preferred cross-objections in respect of the claims disallowed.
The points that arise for consideration are:
1. Who is the tenant of the schedule premises?
2. Whether the quit notice dated 30-7-1991 is valid quit notice?
3. What are the rents stipulated to be payable?
4. Whether the tenancy is determined and whether the respondents are entitled for possession and whether the appellants are liable to be evicted?
5. To what past and future damages are the respondents entitled to?
6. To what relief?
8. The plaintiffs have come up with a specific case that the 1st defendant took the premises on lease on 1-7-1987 after it was vacated by P, Venkata Reddy by clearing all the arrears of rent. The defendants’ contention is that during the lease period itself Venkata Reddy was running Oasis Bar and Restaurant by taking the 1st defendant as the managing partner and after expiry of lease term period they became the tenants holding over. They are entitled to continue. Obviously the original lease agreement was not produced. It is well settled that under Section 91 of the Indian Evidence Act the document has to be produced. When the unregistered lease deed dated 9-6-1980 has not seen the light of the day it cannot be said that the terms of lease under which P. Venkata Reddy was the tenant are established. In any view of the matter P, Venkata Reddy retired from partnership. Sri M.A. Reddy died. The Court now has to act upon the admissions made by both the parties.
9. PW1 is the plaintiff. She states that she let out the ‘A’ schedule property along with ‘B’ schedule fixtures to Dl on a monthly rent of Rs. 3,000/-. She also further deposed that the rent was fixed at Rs. 3,000/- p.m., for A-schedule property and Rs. 1,500/- p.m., was fixed towards fixtures and the tenancy was from month to month. D1 continued as a tenant till March, 1990. It is also in her evidence that there is no written lease-deed in favour of D1 even from the inception i.e., July, 1987. DW1 Sri P. Narayana Reddy is unable to state whether there was any written agreement between the plaintiff and the defendant. He deposed that he joined as a partner of the firm in the year 1991. According to his version, initially the rent was fixed at Rs. 1,500/- p.m. He also expressed his ignorance regarding the date when the rent was enhanced. He further deposed that he became a partner in the D2 firm and at that time, they were paying a rent of Rs. 4,500/- p.m., to the said premises. He also expressed his ignorance whether the amount of Rs. 4,500/- represents Rs. 3,000/-towards building rent and Rs. 1,500/- towards fixtures and furnitures. He Categorically deposed that the plaintiff used to issue receipts for the rents. Again the witness states that the plaintiff did not issue receipts after he became a partner. Once again he has stated that the plaintiff used to issue receipts separately for the rent and also for the fixtures. He claims that the rent was being paid by way of cheques. He also claims that the business is continuing under partnership from the year 1981 but some of the partners are walking out and some new partners are entering into the partnership. He further deposed that he came to know that D-1 paid an amount of Rs. 15,000/- as deposit. But he cannot give the exact figures. He further deposed that he did not know whether the deposit amount made by D1 was adjusted towards the repairs and maintenance of the house.
10. It is clear from the evidence of DW1 that Dl took it on a monthly rent of Rs. 4,500/-. Out of that amount Rs. 3,500/- is being paid towards building rent and Rs. 1,500/- towards fixtures and separate receipts have been issued. It is also clear from the evidence that he was the partner of oasis Bar and Restaurant. I have already stated that the prior lease deed has not seen the light of the day. The plaintiffs plead an oral lease which is said to have been taken by D1. D1 is no more. The defendants have come with a specific case that they were continuing as tenants holding over. It is for them to show that they were continuing as tenants holding over. In any view of the matter, DW1 is unable to throw much light about the tenancy. His statement made in the deposition that D1 paid an amount of Rs. 15,000/- as a deposit only supports the version of the plaintiff. The contention of the defendants that P. Venkata Reddy took the hotel by name Oasis Bar and Restaurant on lease, and later D1 joined in the business, and that the 2nd defendant continued the business as a tenant holding over cannot be believed from the fact that the link in between the lease taken by P. Venkata Reddy and the plaintiffs is missing since agreement is not forthcoming. The only documentary evidence produced is the legal notice issued by the plaintiffs to Venkata Reddy dated 19-5-1985 showing the tenancy of defendants, and the said notice is marked as Ex. B2. It only supports the version of PW1 in view of the determination of tenancy by the plaintiff. The evidence of PW1 is believable and trustworthy as it is supported by documentary evidence. On the strength of reliable of evidence of PW1 coupled with the admissions made by DW1 along with the documentary evidence i.e., Ex.B3, Ex.B10, and Ex.B11 I have no hesitation to find that Dl took the premises on rent and continued the business in the name and style of Oasis Bar and Restaurant to the knowledge of the plaintiffs.
11. Now coming to the validity aspect of quit notice dated 30-7-1991 issued by the plaintiffs to the defendants it is an undisputed fact that a notice was issued asking the defendants to quit the premises after determining the tenancy. Admittedly, the plaintiffs have issued a quit notice dated 30-7-1991. The office copy of the said notice is marked as Ex.A5. The defendants gave a reply to Ex.A5 quit notice under Ex.A6. Before deciding the validity of quit notice issued by the plaintiffs, it is necessary to have a look at Section 106 and 107 of Transfer of Property Act, 1882. The said Sections read as follows:
106. Duration of Certain Leases in Absence of written Contract or Local Usage :
“In the absence of a contract or local law or usage to the contrary, a lease of immovable property for agricultural or manufacturing purposes shall be deemed to be a lease from year to year, terminable, on the part of either lessor or lessee, by six month’s notice expiring with the end of I year of tenancy; and a lease of immovable property for any other purpose shall be deemed to be a lease from month to month, terminable, on the part of either lessee, by fifteen days’ notice expiring with the end of a month of tenancy.
Every notice under this section must be in writing signed by or on behalf of the person giving it and either be sent by post to party who is intended to be bound by it or be tendered or delivered personally to such party, or to one of his family or servants, at his residence, or (if such tender or delivery is not practicable) affixed to a conspicuous part of the property.”
107. Lease How Made :–A lease of immovable properly from year to year, or 1 for any term exceeding one year, or reserving a yearly rent, can be made only by a registered instrument.
All other leases of immovable property may be made either by a registered instrument or by oral agreement accompanied by delivery of possession.
Where a lease of immovable property is made by a registered instrument, such instrument or, where there are more instruments than one, each such instrument shall be executed by both the lessor and the lessee:
Provided that the State Government may, from time to time, by notification in the official gazette, direct that leases of immovable property, other than leases from year to year, or for any term exceeding one year, or reserving a yearly rent, or any class for such leases, may be made by unregistered instrument or by oral agreement without delivery of possession.”
The contention of the learned Counsel for the appellants is that the tenancy is for manufacturing purposes and mentioning of time for 15 days only in the notice is not sufficient compliance terminating or determining the lease. The learned Counsel for the appellants further contends that six months notice is required.
12. The learned Counsel for the respondents contends that the lease is for month to month, The rent is payable only on monthly basis and it cannot be said that manufacturing process is going on in the premises and when the lease is month to month, 15 days notice is sufficient. He has also laid stress on the words “in the absence of contract or local law or usage to the contrary” and contends that the lease is only a monthly lease and when such is the case 15 days notice is sufficient. It expires by the end of the month of tenancy. Before proceeding further, it is necessary to determine whether any manufacturing process is going on in the schedule premises.
13. The earliest decision which dealt with manufacturing process is reported in Brohmananda Das v. Nagendra Chandra, . The relevant portion at para 6 reads as follows:
“The use of word “manufacture” to describe the process of preparation of sweets — though not unknown — is, generally speaking, not very appropriate and as a general rule it cannot be held that preparation of sweetmeats would answer the test of “manufacture” for purposes of Section 106 of the Transfer of Proper Act, normally it does not act. 1946 Cal. 317 distinguished.
There can be no doubt also that whatever the meaning of the word “manufacture” may be, the lease in question was at least as much for sale of sweets as for preparing the same in the disputed premises. That being so, it was not solely for manufacturing purposes but was as much for other purposes as well. It was, therefore, a lease for “any other purpose” within the meaning of Section 106 and the test of primary purpose would not help the appellant. It seems to me further that the primary purpose of running a sweetmeat shop is to sell sweets, whether manufactured at the spot or brought from elsewhere. The test of primary purpose would, therefore, rather go against the appellant. Accordingly, the disputed tenancy cannot be held to be one for “manufacturing purposes” so as to require a six months notice to quit for its termination.
It is stated in the decision that the primary purpose is to sell the sweet whether manufactured at the spot or brought from elsewhere. The test of primary purpose would, therefore, rather go against the appellant. Therefore, the disputed tenancy cannot be held to be a one manufacturing purpose. The tests that have to be determined have been clearly adumbrated in a decision reported in Idandas v. Anant Ramchandra, AIR 1982 SC 127. The relevant portion at para 10 reads as follows:
“That it must be proved that a certain commodity was produced;
That the process of production must involve either labour or machinery:
That the end product which comes into existence after the manufacturing process is complete, should have a different name and should be put to a different use. In other words, the commodity should be so transformed so as to lose its original character.”
It appears in that case lease was granted for running a flour mill wherein wheat was transformed by manufacturing process which involved both labour and machinery, into flour. The Supreme Court has held that there is manufacturing process and that the lease is also for manufacturing purpose. It is clearly stated that the burden of proof lies upon the tenant to show that it is manufacturing process. It is also stated by the Supreme Court in a decision reported in Aspinwall and Co., Limited v. Commissioner of Income Tax, (2001) SCC 525, that converting and receiving the raw coffee berries making it undergo nine processes to reach the shape of coffee beans, certainly amounts to manufacturing process. It is clearly stated by the Supreme Court that conversion of the raw berry into coffee beans would be manufacturing activity. It is also stated in Sureeswar Pandit v. Asma Khatoon, AIR 1995 SC 41, that Pottery business being a manufacturing process and lease being for a manufacturing process, notice under Section 106 for six months is necessary. It is stated by the Apex Court in the decision reported in Ram Kumar v. Jagdish Chandra, , that the rule of construction embodied in Section 106 of T.P. Act applies not only to express leases of uncertain duration but also to leases implied by law which may be inferred from possession and acceptance of rent and other circumstances. It is also observed in the decision at para Nos. 13, 15 and 16 which read as follows:
“The section lays down a rule of construction which is to be applied when there is no period agreed upon between the parties. In such cases the duration has to be determined by reference to the object or purpose for which the tenancy is created. The rule of construction embodied in this section applies not only to express leases of uncertain duration but also to leases implied by law which may be inferred from possession and acceptance of rent and other circumstances. It is conceded that in the case before us the tenancy was not for manufacturing or agricultural purposes. The object was to enable the lessee to build structures upon the land. In these circumstances, it could be regarded as a tenancy from month to month, unless there was a contract to the contrary. The question now is, whether there was a contract to the contrary in the present case. Mr. Setlvad relies very strongly upon the fact that the rent paid here was an annual rent and he argues that from this fact, it can fairly be inferred that the agreement between the parties was certainly not to create a monthly tenancy. It is not disputed that the contract to the contrary, as contemplated by Section 106 T.P Act, need not be an express contract, it may be implied, but it certainly should be a valid contract. If it is no contract in law, the section will be operative and regulate the duration of the lease. It has no doubt been recognized in several cases that the mode in which a rent is expressed to be payable affords a presumption that the tenancy is of a character corresponding thereto. Consequently, when the rent reserved is an annual rent., The presumption would arise that the tenancy was an annual tenancy unless there is something to rebut the presumption. But the difficulty in applying this rule to the present case arises from the fact that a tenancy from year to year or reserving a yearly rent can be made only by registered instrument, as laid down in Section 107, T.P. Act. The Kabuliyat in the case before us is undoubtedly as registered instrument, but ex-concesis it is not an operative document at all and cannot consequently fulfill the requirements of Section 107 of T.P. Act.
But one serious objection to this view seems to be that this would amount to making a new contract for the parties. The parties here certainly did not intend to create a lease for one year. The lease was intended to be for a period exceeding one year, but as the intention was not expressed in the proper legal form, it could not be given effect to. It is one thing to say that in the absence of a valid agreement, the rights of the parties would be regulated by law in the same manner as if no agreement existed at all, it is quite another thing to substitute a new agreement for the parties which is palpably contradicted by the admitted facts of the case.
It would be pertinent to point out in this connection that in the second appeal preferred by the plaintiff against the dismissal of his earlier suit by the lower appellate Court, the High Court definitely held that the defendant’s tenancy was one from month to month under Section 106 TP Act, and the only question left open was whether payment to the Receiver amounted to payment to the plaintiff himself. In this suit the defendant admitted in his written statement that payment to the receiver had the same effect as payment to the plaintiff, and the trial Judge took the same view as was taken by the High Court on the previous occasion, that by payment to and acceptance of rent by the Receiver, the defendant became a monthly tenant under Section 106 of T.P Act. In his appeal before the District Judge, which was the last Court of facts, the only ground upon which the defendant sought to challenge this finding of the trial Judge was that the receiver was an unauthorised person because of the decision of the Judicial Committee which set aside his appointment and consequently acceptance of rent by such person could not create a monthly tenancy. This shows that it was not the case of the defendant at any stage of this suit that because one year’s rent was paid, a tenancy for one year was brought into existence. We, think, therefore, that on that facts of this case, it would be quite proper to hold that the tenancy of the defendant was one from month to month since its inception in 1924. This view finds support from a number of reported cases vide Dabendra Nath v. Shyama Prsanna 11, Cal. W.N. 1124 Akloo v. Emanan, 44, Cal. 43 And In all these cases the rent payable was a yearly rental. On this finding no other question would arise and as the validity of the notice has not been questioned before us, the plaintiff would be entitled to a decree in his favour.”
14. The defendants have not specifically pleaded as to the nature of manufacturing process going on. It is a Oasis Bar and Restaurant. Naturally raw products are taken and eatables were sold. Therefore, under any stretch of imagination, it cannot be said that there was no manufacturing process in the premises. I am of the considered opinion after taking into consideration of the working of Oasis Bar and Restaurant that manufacturing process is going on with the knowledge of plaintiffs, and it must be taken as manufacturing process only within the meaning of Section 106 of T.P Act.
15. It is next to be seen whether the lease is a oral one?
Obviously, the lease is monthly lease. It is a oral one. The attempt made by the learned Counsel for the respondents is to show that six months notice is required only when the lease is for year to year and it does not cover a monthly lease. It cannot be disputed if the lease is for year to year it requires registration, in view of Section 107 of T.P Act. Admittedly, the rent is being paid on monthly basis. It is also contended that the clauses mentioned under Section 107 of T.P Act are subject to contract or local law or usage to the contrary. There is absolutely no evidence regarding local law and usage. There is no express agreement coming forth before this Court and no evidence is placed on that aspect. In any view of the matter, the lease was for manufacturing purpose and it is a monthly lease. In such cases, it is clearly stated in Samir Mukherjee v. Davinder K. Bajaj and Ors., 2001 (3) ALD 80 (SC), that the period of notice for termination of lease is only 15 days but not six months as can be seen from the observations made by the Apex Court in paras 5 and 6 which are extracted below:
“Section 106 lays down a rule of construction, which is to apply when the parties have not specifically agreed upon as to whether the lease is yearly or monthly. On a plain reading of this section, it is clear that legislature has classified leases in two categories according to their purposes and this section would be attracted to construe the duration of a valid lease in the absence of a contract or local law or usage to the contrary. Where the parties by a contract have indicated the duration of a lease, this section would not apply. What this section does is to prescribe the duration of the period of different kinds of leases by legal fiction-leases for agricultural or manufacturing purposes shall be deemed to be lease from year to year and all other leases shall be deemed to be from month to month. Existence of a valid lease is a prerequisite to invoke the rule of construction embodied in Section 106 of Transfer of Property Act.
Section 107 prescribes the procedure for execution of a lease between the parties. Under the first paragraph of this section a lease of immovable property from year to year or for any term exceeding one year or reserving yearly rent can be made only by registered instrument and remaining classes of leases are governed by the second paragraph that is to say all other leases of immovable property can be made either by registered instrument or by oral agreement accompanied by delivery of possession.
16. No doubt the contra version is also forthcoming from the decision cited by the learned Counsel for the appellants as can be seen from mentioned (supra). The decision reported in 2001 (3) ALD 80 (SC) mentioned supra applies with all force to the facts of this case and the entire Law has been summarised by the Apex Court in the decisions cited by the learned Counsel for the appellants. In the quit notice only 15 days time is given. If the principles laid down by the Supreme Court are applied, the quit notice is a valid quit notice. It is also contended that the defendants are tenants holding over. Reliance is placed on a decision reported in Golkonda Real Estate and Fin Cor, v. SCH S.R. Somayajulu, , claiming that fresh quit notice is mandatory. The relevant portion at paras 7 and 8 reads as follows:
“The ruling in P. Lakshmanchandji v. V. V.S.R Murthy relied upon by the learned Counsel for the appellants-plaintiff is of no assistance to them. In that case interpreting Section 113 of the Transfer of Property Act and Illustration (a) to it, Alladi Kuppuswami, J as he then was after reviewing the case law on the subject held:
“Reading the illustration together with the main part of the section it will follow that even the acceptance of the rent subsequent to the notice would operate as a waiver only if it shows an intention to treat the lease as subsisting.”
In that case while accepting the rents for the period subsequent to the quit notice, receipts were issued with endorsement ‘without prejudice’, which clearly indicate that the intention of the lessor not to treat the lease as subsisting. In the case on hand no such receipts were issued and no evidence was brought on record to show that the appellants-plaintiffs were not treating the lease as subsisting after the issuance of quit notice by accepting the rents for the period between April, 1969 and December, 1969. The conduct of the appellants plaintiffs in accepting the rents tendered by the respondent-defendant for the period subsequent to the quit notice without any reservations clearly leads to the inference that they were treating the lease ask subsisting and therefore it must be held that they waived the notice and accordingly we agree with the view of the learned single Judge that the respondent-defendant became a tenant holding over and so fresh quit notice is mandatory requirement.
As regards the application of principle of estoppel, Sri Subrahmanya Narsu vehemently advanced arguments. We are of the considered view that in the particular circumstances of this case, it has no application. The trial Court’s finding that the 1st appellant-1st plaintiff-firm became the owner has not been disputed in the first appeal and so that finding became final and binding. Even before us no objection whatever was raised about the ownership of the 1st appellant-1st plaintiff-firm. The lease agreement, Ex.A4 was between the 3rd appellant-3rd plaintiff and the respondent-defendant. When it is the case of the appellants-plaintiffs that the 1st appellant-1st plaintiff-firm became the owner on 1-10-1972 it was their bounder duty to serve a notice to quit on the respondent-defendant. For this the contention of the learned Counsel for the appellants-plaintiffs is that such a plea was not taken by the respondent-defendant in his written statement. What the leaned Counsel says is true. It is also equally true that it is for the appellants-plaintiffs to prove what they have pleaded the pleading is grounded on the footing that the 1st appellant-1st plaintiff became the owner of the plaint schedule premises and therefore is entitled to seek eviction. Failure to apprise the respondent-defendant about the change of ownership and absence of attornment of tenancy disable the appellants plaintiffs from successfully claiming eviction of the respondent-defendant. The inconsistent plea taken by the respondent-defendant in his written statement will not have the effect of the appellants-plaintiffs getting the decree in the absence of there being no evidence at any point of time prior to the suit that the respondent-defendant was informed about the change of ownership of plaint schedule premises.
I have already stated that the quit notice is a valid notice. It determines the tenancy and cannot be a tenant holding over. When once it determines the tenancy, the possession becomes unlawful. The defendants are entitled to continue till they are lawfully evicted through the process of the Court.
17. Coming to the aspect of dispute with regard to payment of rents, the learned Counsel for the appellants contends that they accepted the rent for two months and refused to receive the rents sent by the respondents. The contention of the learned Counsel for the respondents is that he accepted the rents upto the time of determination of tenancy which comes to an end by end of the month. He refused to receive the remaining portion of the rents. The plaintiff appears to have refused the rent after determination of tenancy. There is some substance in the contention of the learned Counsel for the respondents.
18. Coming to the aspect of the quantum of rent that is payable, the plaintiffs mainly placed reliance on two documents said to have been signed by one Dalaiah on the reverse of the receipts and contends that Rs. 3,000/- is fixed towards rent and Rs. 1,500/- is fixed towards furniture and fixtures. Obviously, the said Dalaiah was not examined. The attempt made by the learned Counsel for the respondents is to show that the defendants have suppressed the records maintained by them and had they been produced, they would have shown the name of Dalaiah, who was working under them and issued receipts. The explanation given by the defendants is to show that the amounts were paid and after statement of the disputes under A.P. Shops and Establishments Act, they were destroyed. Be that as it may, no documentary evidence is forthcoming to show that Dalaiah was working under the defendants. It is for the respondents to show that Dalaiah was working under the defendants. There is no documentary proof except the receipts. More over the entries found in those receipts do not inspire confidence to believe them as they do not bear the signatures of both the plaintiffs. Moreover, they do not contain the signatures from the owner of the shop and the endorsements made is “receipt received paid Rs. 2,000/- cash”. Keeping this in mind, this Court has observed that the said receipt do not inspire confidence. Therefore, it is rightly contended by the learned Counsel for the appellants that much reliance cannot be placed on the counterfoils produced before this Court in view of the principles laid down by the Apex Court in AIR 1982 SC 127 where under it is stated that entry in the counterfoil being an admission in his own favour was not admissible against the appellants.
19. It is now to be seen as to what is the rent payable including the rent for fixtures. The contention of DW1 is that Rs. 4,500/- represents Rs. 3,000/- towards building rent and Rs. 1,500/- towards fixtures. In view of the admission made by him, I find that the said amount should be taken as a rent. It is also contended by the learned Counsel for the appellants that inspite of sending the rents by MO they are refused to receive the same and forced to open a bank account and deposit the amounts in the bank. The refusal is admitted by PW1. But it is contended by PW1 that they have received the rents till last day of the month upto determination of tenancy and thereafter they have refused to receive the rents. The plaintiffs claim that they have justified in receiving the rents and the possession becomes unlawful after determination of tenancy.
20. Adverting to the same, a close scrutiny of the evidence of PWs. 1 and 2 and documentary evidence discloses that the rent is accepted till the determination of tenancy and subsequently the owner started refusing to receive the rents and ultimately the appellants are forced to deposit in a bank. It can be said that the refusal is a valid refusal. It is also contended by the learned Counsel for the appellants that the tenancy is said to have been taken by D1 and running Oasis Bar in that view of the matter, the suit itself is not maintainable as all the partners are not impleaded and it is an unregistered firm. Adverting to the same, the Oasis Bar and Restaurant was being managed by the partners of the firm. The legal representatives of the defendants are also made parties to the suit. In that view of the matter and in view of my finding that both the D1 and D2 are tenants, the suit is maintainable. It is also contended by the learned Counsel for the appellants that P. Venkata Reddy is a necessary and proper party to the suit. Adverting to the same, the Court has already found that the lease of P. Venkata Reddy was determined by issuing a quit notice. In view of the same, there is no need to implead the said P. Venkata Reddy as a party. The respondent Counsel draws my attention to Order 1, Rule 13 CPC which states that such an objection shall be raised before settlement of issues. I agree with the same and find that it is not raised before settlement of issues. It is also contended by the learned Counsel for the appellants that P. Venkata Reddy was running a non-vegetarian hotel attached to the Bar. In any view of the matter, he is neither a partner of the firm nor has got any interest in the business. In view of the same, the suit is certainly maintainable without impleading the said P. Venkata Reddy as a party to the suit. It is contended by the learned Counsel for the appellants that the amount claimed towards rent is excessive. Adverting to the same, the admissions made by DW1 shows that the rent was stipulated only Rs. 4,500/-per month. Out of which, Rs. 3,000/- towards building rent and Rs. 1,500/- towards fixtures. It is also contended that they are also entitled for damages for the months of 1-9-1991 to 30-9-1991 and from July 1991 and August, 1991 towards arrears of rent. The learned Counsel for the respondents have preferred cross-objections. It is contended by them that the future damages may be left over for determination on a separate application under Order 20, Rule 12 CPC. The possession of tenancy is clearly mentioned after determination of lease in Bhavanji v. Himatlal, . In view of the principles laid down by the Supreme Court, I have no hesitation to find that he is not a tenant holding over and his possession becomes unlawful after the date of determination of the term of tenancy and only damages can be awarded after due enquiry. My attention is also drawn by the learned Counsel for the respondents that the defendants have not placed any evidence and it is not possible to place evidence in respect of future profits. It is stated in Rajaram v. K.P. Singh, AIR 1973 Gauhati 17, at paras 8 and 9 as follows:
The second submission of learned Counsel is that the decree for future compensation is illegal. The learned Munsif decreed future compensation at the rate of Rs. 57/- per month from November 1968, till the date of delivery of possession of the house to the plaintiff. A decree of future rent for mesne profits may be passed under Order 20 Rule 12 of the Code of Civil Procedure, the material portion of which may be quoted:
(i) Where a suit is for the recovery of possession of immovable property and for rent or mesne profits, the Court may pass a decree–.
(c) directing an inquiry as to rent or mesne profits from the institution of the suit until —
(i) the delivery of possession to the decree holder;
(ii) the relinquishment of possession by the judgment-debtor with notice to the decree-holder through the Court,
(iii) the expiration of three years from the date of the decree, whichever event first occurs;
(2) Where an inquiry is directed under Clause (b) or Clause (c) a final decree in respect of the rent or mesne profits shall be passed in accordance with the result of such enquiry.
Order 20 Rule 12(c) does not contemplate immediate passing of a decree for future compensation from the institution of the suit till the delivery of possession to the decree-holder. It only contemplates an enquiry into the matter and the decree may be passed only at a subsequent stage. This provision was examined in a Bench decision of this Court in the case of Surajmal Jail v. Kankalata ILR 16 Assam 1 = (AIR 1964 Assam 102). The Court has held:
“The reading of these Orders and rules (Order 20, Rule 12) shows that the plaintiff cannot be given a decree for compensation for wrongful possession after the period of the suit till the recovery of possession at the rate of Rs. 200 per month. If the Court desire that an enquiry should be made as to the rent or mesne profits from the institution of the suit till the delivery of possession, a preliminary decree has to be passed to that effect and a final decree in respect of the rent or mesne profit is to be passed in accordance with the result of such inquiry. The decree thus in so far as it orders the payment of rent, at the rate of Rs. 200/- per month from the date of the suit till the date of possession, cannot stand”.
This decision covers the present case. In the instant case the learned Munsif did not order any enquiry but forthwith decreed future compensation at the rate of Rs. 57/- per month from the date of the suit till the date of recovery of possession. The decree for future compensation is unsustainable. The decree passed by the Munsif was upheld by the learned Assistant District Judge.”
It is also observed by the Supreme Court in Dalhouse Properties v. Sooraj Mull, AIR 1977 SC 223, at para-3 and the relevant portion reads as follows:
“that the trial Court went wrong in denying the plaintiff an opportunity to prove the amount of mesne profits from the date of the institution of the suit until delivery of possession. The High Court did not correct the error while examining the plaintiffs appeal, and laboured under the mistaken impression that the plaintiff did not make any attempt to give evidence on the point during the course of the trial. That was obviously a mistake as the High Court failed to notice that the plaintiff had in fact been prevented from proving its claim for mesne profits at the “present rental value.”
Applying the said principles to the facts of this case, I have no hesitation to find that enquiry regarding the determination of future mesne profits has to be relegated in a separate application to be filed under Order 20, Rule 12 CPC.
21. To sum up, I Find D1 and D2 are tenants of the schedule premises. I also find that the quit notice is a valid quit notice. The stipulated rents payable are Rs. 4,500/-which represents Rs. 3,000/- towards building rent and Rs. 1,500/- towards fixtures and furniture. The respondents are certainly entitled to evict the appellants and entitled for possession. The future damages shall be determined on an application to be filed under Order 20, Rule 12 of CPC.
22. Accordingly I answer the points 1 to 6 partly in favour of the respondents.
23. In view of my findings that the future damages cannot be determined and has to be relegated under Order 20, Rule 12 CPC by way of separate proceedings by filing separate application, the decree passed by the learned Subordinate Judge, Viskahapatnam to the extent of granting damages at the rate of Rs. 4,200/- and Rs. 2,200/- towards fixtures and fittings, from 1-9-1991 till the date of delivery of possession is liable to be set aside. It is set aside. The plaintiffs are entitled for mesne profits to be determined under Order 20 Rule 12 CPC.
24. In the result, this appeal is liable to be partly allowed and accordingly it is partly allowed. The cross objections are also allowed partly. A decree is also passed a awarding a sum of Rs. 4,500/- towards damages for a period of one month i.e., 1-9-1991 to 30-9-1991. Rest of the claim is dismissed while confirming the judgment and decree of the lower Court. Both parties are entitled to costs on the respective amounts on which they have succeeded. Time for vacating the premises is six months.