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Judgment
S.K. Gupta, J.—Initiated by the defendants, this appeal seeks to examine the correctness of the Judgment and decree dated 30-04-1994
drawn by the learned District Judge, Jammu in an action, instituted by the plaintiff for eviction of the defendants from the demised premises of first
floor of the portion covered by an area of 657 sqft. commonly known as Amar Market building situated at Raghunath Bazar, Jammu, belonging to
the plaintiff, respondent herein, and recovery of a sum of Rs. 1,80,000/- as compensation for unauthorized use and occupation of the same unto
28th September, 1989. In culmination of the trial of the suit, the Court below has passed the decree for possession by ejectment of the second
defendant and recovery of Rs. 78,840/-as compensation for use and occupation of the premises from April, 1987 till the commencement of the
suit.
Setting in facts of the case, a portion of the building explicitly delineated in para 1 of the plaint belonging to the plaintiff was initially leased out to
defendant No. 2 for a period of 5 years effective from 19/03/1979 for housing the Post Office. The lease was extended for another period of three
years and had to expire on 20/03/1987. The plaintiff sought the possession of the premises by ejectment of the defendants on the ground that no
further lease was extended. The plaintiff further claimed a recovery of Rs. 1,80,000/- as compensation for unauthorized use and occupation of the
premises at monthly rent of Rs. 6,000/- after the expiry of the lease.
The resistance to the suit has been made on a blend of objections both preliminary and on merits. The preliminary objections relate to valuation
of the suit for the purposes of Court fee and jurisdiction being incorrect, the framing of the suit being bad in law and the verification being defective
and invalid. On merits, it is stated that in accordance with terms of the lease, the period of lease stands extended by one year. Further, the claim of
the plaintiff for enhancement of monthly rent of Rs. 6,000/- has also been refuted and controverted.
Upon Consideration of the pleadings, the following issues were struck for adjudication by the Trial Court:--
Whether the notice u/s 80 CPC served upon the defendants was not in accordance with law? OPD
Whether the value of the suit for the purposes of Court fee and jurisdiction is not fixed properly? OPD
Whether the suit has not been properly verified if so what is its effect? OPD
Whether the defendants are protected by the provisions of Houses and Shops Rent Control Act? OPD
Whether tenancy of the defendant has been terminated validly as such they are liable to be evicted from the suit premises? OPP
Whether the plaintiff is entitled to the recovery of Rs. 1,80,000/-as compensation at the rate of Rs. 6000/- per month for the period
commencing from 20.3.87 upto 20.9.89 on account of unauthorized use and occupation of the premises.
Relief.
The Trial Court recorded the evidence adduced by the parties in support of their respective claims and after analytical evaluation of the
preliminary and perceptive facts deposed to by the witnesses examined at the trial and testimonial boost these provided either way, the Trial Court
passed the decree, impugned in this appeal on twin grounds that no notice was served by the defendants on the plaintiff of their intention for
renewing the lease for a term of one year before the expiration of the lease, in terms of the lease agreement, as a consequence of which the period
of lease stood expired and the tenancy stood determined by efflux of time. The plaintiff was held entitled to claim higher rent for unauthorized use
and occupation of the premises and allowed the agreed amount of Rs. 2,628/- p.m. as enhanced rent payable for the period of their overstay after
the expiry of the lease period i.e. from April, 1987 till the institution of the suit.
The appellants have challenged the judgment and decree passed by the Trial Court to the extent of its finding on issue No. 5 with regard to their
eviction from the demised premises and as a sequel to it have deposited the amount of enhanced rent in terms of the judgment and decree of the
Trial Court.
The respondent has also filed a cross appeal to impugn the correctness of the judgment and decree dated 30/04/1994 and amended on
21/05/1994 only to the extent of its finding on issue No. 6, by virtue of which plaintiff is held entitled to enhanced rent at the rate of Rs. 2.,628/-
instead of Rs. 6,000/- p.m., claimed in the suit, effective from April, 1997 unto the date of institution of the suit.
I have heard the arguments advanced by the learned counsel appearing for the respective parties and considered their rival contentions in
context with the evidence on record, meticulously.
It is not in dispute that the lease in respect of the demised premises commenced w.e.f. March 20, 1984 for a space of three years. The lease
expired on March 20, 1987. As per terms of the lease, possession of the premises could be retained by the defendants only for a period of one
year beyond the expiry of three years and that too on giving a notice of such intention to the lessor atleast three months before the expiration of the
lease and exercising the option. It is not in dispute that no such option was exercised nor any such notice was served on the plaintiff in terms of the
lease agreement. The tenancy, therefore, had expired by efflux of time on the expiry of the lease period. The plaintiff has also taken all the
precautions and by way of abundant caution, served a notice u/s 80 of the CPC and the receipt of which has even been admitted by defendant
No. 2, which goes to show that the tenancy of the appellants/defendants stood determined under the Transfer or Property Act. In the aforesaid
facts and circumstances of the case, defendants were held liable to be evicted from the demised premises as the period of lease had expired by
efflux of time and no option was exercised by serving a notice upon the plaintiff of their intention to retain the possession of the suit premises for
another period of one year beyond the period of three years. Based on these facts is also the finding returned by the Trial Court while deciding
issue No. 5 in the suit.
Mr. Parag Sharma, learned Addl. CGSC appearing for the appellants/defendants, however, submitted that the tenanted premises used for
Post Office is located at busy commercial area and in case of eviction considerable hardships will not occasion only to the business community but
also to people from other sections of society. Mr. Sharma further submitted that the Trial Court should have taken into consideration the factum of
public utility, of the Post Office and in the absence of any finding returned on this fact, the eviction of the defendants/appellants from the suit
premises, deserves to be set aside.
It is pertinent to point out that jurality of relationship as that of lessor and lessee inter-se parties when came to be established on the foundation
of the lease deed dated 19/03/1979, executed between the parties. They are governed only by its terms and conditions. As per the terms of the
lease, the defendants/appellants, if intended to retain the possession of the premises for a period of one year beyond the period of three years,
were required to exercise the option on giving a notice of such intention to the plaintiff/owner atleast three months prior to the expiration of the
lease. This having not been done, the lease stood determined by efflux of time. When the parties are governed by the terms of the lease, no other
consideration weighed with the Court while deciding the issue with regard to the determination of the lease and eviction of the tenants from the
tenanted premises. The argument put across by Mr. Sharma, therefore, is neither factually sound nor legally tenable, to merit, acceptance. No
other point has been raised and argued by the appellants counsel during debate.
In the above view of the matter, I do not find any ground to interfere with the finding returned by the Trial Court on issue No. 5, holding the
appellants/defendants liable to be evicted from the demised premises as the lease period has since expired and the tenancy stood determined by
efflux of time. Consequently, the appeal filed by the appellants/defendants deserves to be dismissed and is, accordingly, dismissed.
In cross appeal, preferred by the plaintiff/appellant, the only grievance projected is with regard to issue No. 6 by virtue of which the trial court
has returned a finding that plaintiff/appellant is entitled to enhanced rent of Rs. 2,628/- instead of Rs. 6,000/- p.m., claimed in the suit for
unauthorized use and occupation of the demised premises beyond the expiry of period of lease.
It is well settled that the claim for enhancement of rent by the landlord on account of the defendant's possession being unauthorized, must be
reasonable and not penal. It depends upon market rate of rent which after the expiry of leased premises would fetch, if vacated. Where the tenant
after the expiry of the lease continues to be in occupation of the premises despite service of notice by the landlord to evict with a warning that if
they remain in occupation, a specified sum of damages will have to be paid for wrongful use and occupation, the tenant will be liable to pay that
amount provided it is not penal. It, therefore, follows that the plaintiff would be entitled to claim higher rent provided the amount demanded is
reasonable in respect of unauthorized use and occupation of the premises beyond the period of lease. The defendants/respondents did not dispute
about their having agreed and prepared to pay at the rate of Rs. 2,628/- per month from 20/02/1988 and for this purpose, reference is made to
the copy of the minutes found on the file. These minutes pertain to the CFRAC to examine the justification for increase in rent demanded by the
landlord.
Mr. C.S. Azad, learned counsel appearing for the appellant/plaintiff, however, relying on the evidence, examined before the trial court,
submitted that the plaintiff is entitled to rent of Rs. 6,000/- per month and the trial court has not considered the evidence in its proper perspective
and declined the same without any justification.
The evidence assembled by the plaintiff consisted or the statements of Bishan Dutt -- property dealer, Abdul Qayoom and Haji Nazir Dar to
prove the prevalent market value of the rent of the building in the area. According to PW -- Bishan Dutt, the market rate of rent was Rs. 12/- per
sqft carpet area in the year 1987 but he could not show that lease of any property was secured in the area at the rate narrated by him. He also
could not give the detail of the lease secured in respect of property in Amar Market. Whereas the evidence of PW -- Abdul Qayoom is to the
effect that in the year 1984, he had taken a room for his office at monthly rent of Rs. 800/- the plaintiff's sister. The room has the carpet area of 70
sqft. and located on the front floor of the building. Similarly PW -- Haji Nazir Dar stated to be in possession room with carpet area of 75 sqft and
paying a monthly rent of Rs. 800/-. He also stated to have taken this room from plaintiff's sister.
In estimating the evidence of the aforesaid witnesses, the evidence of PW- Bishan Dutt is too hypothetical to be considered. As regards the
evidence of PWs--Abdul Qayoom and Haji Nazir Dar, they are in possession of small accommodations and the rent cannot be taken as a guide to
determine the rent of a large accomodation. The accommodation in occupation of the respondents is 657 sqft carpet area, so the evidence
provided by these witnesses is not of much relevance and is, thus, inconsequential, as the market value of rent of a small accommodation cannot be
considered to be the safe guideline to determine the market rate of rent of a large area. One can get more demand for small accommodation with a
higher rent but may not get for a bigger accommodation. What was required of the plaintiff to prove in such event was as to what amount his
premises would fetch in case of its vacation by the defendants after their lease is expired. There is not an iota of evidence placed on record to
suggest that there were customers readily available to take the demised premises on monthly rent of Rs. 6,000/-. The demand of the plaintiff is
based only on the plea that the defendants, having remained in unauthorised possession of the premises beyond the period of lease, are liable to
pay at the enhanced rate of rent of Rs. 6.000/-. No witness has been examined by the plaintiff to prove that he is willing to pay the amount claimed
by the plaintiff as rent of the premises in of its vacation by the defendants. In the absence of such material evidence, the statements made by the
witnesses examined by the plaintiff would, therefore, be of no avail to support his claim. The plaintiff having not succeeded in proving by evidence
that the amount claimed for unauthorized use and occupation or the premises by the defendants beyond the expiry of period of lease to be the
market value of rent prevalent, it cannot be said to be a reasonable amount of compensation. Evidence of such sale instances cannot be relied upon
as is handed down by the Apex Court in case entitled State of Jammu & Kashmir Vs. Mohammad Mateen Wani and Others, . The Trial Court,
after examining the issue raised analytically and on proper assessment of the evidence produced by the plaintiff, rightly held him entitled to
enhanced rent at the rate of Rs. 2,628/- p.m. as compensation for use and occupation of the premises from April, 1987 till institution or the suit. In
the absence of any evidence or proof to justify the claim of the plaintiff, rent at the rate of Rs. 6,000/- p.m. could not be allowed.
In the above view of the matter, I do not find any ground to interfere with the well reasoned judgment of the Trial Court impugned in this cross
appeal.
In the result, the inevitable conclusion reached is that there is no merits in this cross appeal also and is, accordingly, dismissed. Under the
peculiar circumstances of the case, there will be no order as to costs.