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M/s. Ramesh Charities, Rep. by its M.D., Ramesh Babu Venigalla v/s R. Ratna Sudha

    C.C.C.A. No. 124 of 2013
    Decided On, 20 August 2014
    At, High Court of Andhra Pradesh
    By, THE HONOURABLE MR. JUSTICE R. SUBHASH REDDY & THE HONOURABLE MR. JUSTICE A. SHANKAR NARAYANA
    For the Appellant: G.M. Mohiuddin, Advocate. For the Respondent: S. Ravi, Senior Counsel, T. Vinod Kumar, Advocate.


Judgment Text
A. Shankar Narayana, J.

1. Impugning the judgment and decree, dated 04-06-2013, passed by the learned II Additional Chief Judge, City Civil Court, Hyderabad, in decreeing the suit with consequential directions to the defendant (1) to vacate the suit premises and handover possession thereof within two months from the date of passing the judgment, (2) to pay a sum of Rs.2,45,000/- to the plaintiff towards arrears of rent with interest at 12% per annum from the date of suit till realisation, and (3) to pay damages at Rs.75,000/- per month from the date of suit till the date of delivery of possession, the defendant preferred the instant appeal.

2. For the sake of convenience, the parties are hereinafter referred to as arrayed in the suit before the Court below.

3. The facts that are relevant for the purpose of disposal of the instant appeal are that the plaintiff is the absolute owner of the schedule mentioned property, which consists of a plot admeasuring 600 square yards bearing No.37 situated at Road No.5, Jubilee Hills, shown within the boundaries described in the schedule of the plaint and he let it out to the defendant through its Managing Director on a monthly rent of Rs.60,000/- being paid in advance for the month. The lease was an oral one. The rent was payable by the 5th day of the month in advance. Lease commenced from the 1st of November 2010. The defendant agreed to give interest-free deposit of three (3) months rent aggregating to Rs.1,80,000/- and issued two cheques one for Rs.1,80,000/- towards security deposit and the second for Rs.52,500/- towards rent for the month of November, 2010. When the plaintiff presented them through her banker, they were dishonoured on the ground of 'insufficient funds'. The plaintiff mentions that from the very inception of the lease, the defendant was irregular in payment of rents and only on her repeated requests, rent was being paid, but, however, the defendant had committed gross default in payment of rents. The plaintiff has also given the details of the amounts paid by the defendant in paragraph No.8. According to her, the defendant, thus, paid a total sum of Rs.4,26,000/- towards rents and security deposit and had become due a sum of Rs.7,20,000/- towards rent for the months of November, 2010 to October, 2011. She states that even after adjusting the interest-free security deposit towards arrears of rents, the defendant is still due an amount of Rs.2,94,000/-. According to her, in view of default in payment of rents by the defendant, she was constrained to get a legal notice, dated 24-10-2011, issued terminating the tenancy calling upon him to vacate the suit premises within fifteen (15) days from the date of notice besides demanding him to pay the rents due of Rs.2,94,000/- and damages at Rs.90,000/- per month for the unauthorised occupation. The notice sent to the address of the defendant was retuned with a postal endorsement 'addressee left'. For the second notice addressed to the defendant at the leased premises, she did not receive acknowledgement card on the date of suit. According to her, since the notice was sent by registered post with acknowledgement due, the service was complete. Thus, she sought the relief of eviction of the defendant and put her in possession of the schedule premises claiming arrears of rent of Rs.2,94,000/- with interest at 18% per annum and damages at Rs.90,000/- per month from November, 2011 for his unauthorised occupation in the schedule premises.

4. While admitting that he approached the plaintiff to obtain the schedule premises on lease, the defendant has denied the quantum of rent at Rs.60,000/- payable in advance as claimed by the plaintiff. He denied, commencement of lease from 1st November, 2010 contending that the lease commenced from 1st December, 2010. He denied issuance of two cheques for Rs.1,80,000/- towards security deposit and Rs.52,500/- towards rent for the month of November, 2010, and that the cheques were dishonoured due to insufficiency of funds as contended by the plaintiff. According to him, besides the amount shown by the plaintiff in the table, he paid an amount of Rs.49,000/- to the plaintiff on 08-04-2011 by depositing the same into the account of the plaintiff maintained in Andhra Bank, Jubilee Hills Branch, Hyderabad, and submitted the counterfoil thereof for perusal of the Court. He denied the allegation that he committed default in payment of rent and the plaintiff getting the notice issued terminating the tenancy. Even, he denied the allegation that he was in unauthorised occupation of the schedule premises and entitlement of the plaintiff for Rs.90,000/- per month towards damages and so also the amount of Rs.2,94,000/- claimed by her towards rental amount with interest at 18% per annum.

5. He contends that he approached the plaintiff in the month of November, 2010, to take the schedule property on lease for a minimum period of five years and since the schedule property was not in accordance with vastu, he requested the plaintiff to permit him to carry out necessary remedial measures, for which she had agreed and in that connection, he has issued two cheques for Rs.1,80,000/- towards deposit and for Rs.52,500/- towards advance rent after deducting service tax at source. He, thereafter, consulted vastu experts, who advised the plaintiff to cover the entire Southern open place in the first floor of the building by making constructions in an extent of 1400 square feet, for which she expressed her helplessness and requested him to invest necessary amounts agreeing to reciprocate by way of revising the terms and conditions of the lease as he prepared to invest more than Rs.12,00,000/- for making additional construction. After mutual deliberations, rent was fixed at Rs.35,000/- per month payable on completion of every month of tenancy commencing from December, 2010, and that the lease shall be for a minimum period of five years and there was no need to deposit any amount as he was supposed to invest more than Rs.12,00,000/-. Accordingly, he invested Rs.12,00,000/- trusting the plaintiff and constructed 1400 square feet of permanent shed by raising brick walls and provided false ceiling, windows, doors, flooring, electrical wiring, electrical fittings etc. After he has carried out additional constructions by spending Rs.12,00,000/-, the plaintiff betrayed him and demanded for vacating the premises within one year from the date of commencement of the lease. Thus, the defendant contends that the agreed rent was Rs.35,000/- per month and that he has paid a total sum of Rs.4,75,000/-, but not Rs.4,26,000/- and that that amount is sufficient enough to cover the period of rent till December, 2011 and part of January, 2012 and, therefore, he was only liable to pay a sum of Rs.15,000/- and he expressed his readiness to pay the said amount and sought to dismiss the suit with exemplary costs.

6. To decide the main controversy between the parties, we are of the opinion that it is absolutely indispensable to refer to the sequence of events that culminated in passing the order in I.A. No.1877 of 2012 striking out the defence under Order – XV-A of the Code of Civil Procedure, 1908 (for short 'CPC') for the default committed by the defendant in complying with the directions of the Court below in I.A. No.980 of 2012 and the earlier orders passed in I.A. No.2890 of 2011 filed under Rule – 5 of Order – XXXVIII of CPC.

7. The plaintiff has filed I.A. No.980 of 2012 in the above suit under Order – XV A of CPC seeking the relief of striking out the defence of the defendant on the ground that he failed to deposit arrears of rent as seen from the order passed in I.A. No.980 of 2012, dated 13-07-2012. The defendant has not exercised the option of filing the counter therein. Since the defendant has filed his written statement in the suit and has filed his counter in another application in I.A. No.2890 of 2011 filed under Rule – 5 of Order – XXXVIII CPC, the Court below has taken up the defence of the defendant therein and considered the relief in I.A. No.980 of 2012.

8. Concerning the relief, the Court below placed reliance on a decision in K. Zakria Shaik v. K. Saleem Basha (2011 (6) ALT 288), and while observing that the defendant has admitted the rent at Rs.35,000/- per month and that he was due a sum of Rs.15,000/- as on the date of filing the written statement, which he had filed in the month of March, 2012, without going into the dispute with regard to the rent, whether it was Rs.60,000/- and the further question whether the plaintiff was entitled to damages at Rs.90,000/- per month or any other amount, as they are triable issues, including the default in payment of rent prior to filing of the written statement, ordered the defendant to pay Rs.15,000/- and at Rs.35,000/- per month from 1st March, 2012 onwards with further direction that total arrears up to July, 2012 shall be cleared on or before 31-07-2012 and from the month of August, 2012, he shall pay Rs.35,000/- per month on or before 10th of every calendar month. The said order was made by the Court below interpreting the provisions of Order – XV-A of CPC that the Court can direct payment of admitted rent alone leaving the disputed quantum to be decided in trial and the said order does not contemplate directly striking out defence and following the decision in Zakria Shaik’s case, referred supra, such an order was made.

9. Subsequent to passing of orders in I.A. No.980 of 2012, the plaintiff resorted to Order – XV-A read with Section 151 of CPC, by filing I.A. No.1877 of 2012 requesting the Court below to strike out the defence as the defendant failed to comply with the directions of the court passed in I.A. No.980 of 2012, dated 13-07-2012. The Court below while observing that despite service of notice and affording adequate opportunity to the defendant, he did not choose to file any counter indicating compliance of direction of the Court, allowed the petition striking out the defence of the defendant; that order was dated 27th November, 2012.

10. The Court below, basing on the pleadings settled five issues for trial on 13th July, 2012. However, since the Court below did not mention the issues in the judgment impugned, we would like to mention the same, which are as under:

'1. Whether the termination of lease is proper and valid?

2. What was the monthly rent agreed by the parties?

3. What is the period of default and what is the entitlement of plaintiff towards arrears of rent?

4. Whether the plaintiff is entitled for damages at Rs.90,000/- p.m. as claimed by her or any other amount ?

5. Whether the plaintiff is entitled for decree of eviction ?

6. To what relief?'

11. The plaintiff examined herself as PW.1 and exhibited six documents as Exs.A-1 to A-6 to prove her claim. Since the defence was struck off, the defendant had no chance to let in any evidence on his behalf, but, however, he took part in the proceedings and got cross-examined the plaintiff.

12. The Court below, took up issue Nos.1, 2 and 5 together for discussion and on appraisal of evidence on record, both, oral and documentary, found issue No.1 in favour of the plaintiff holding that the termination of lease is proper and valid. On issue No.2, arrived at that the rent agreed by the parties was Rs.60,000/- per month, but not Rs.35,000/-, as contended by the defendant and thus, found in favour of the plaintiff. On issue No.5, basing on the findings on issue Nos.1 and 2, held that the defendant is liable to vacate the premises and accordingly decided the said issue also in favour of the plaintiff.

13. Concerning the period of default touching issue No.3, on appraisal of evidence of PW.1 and the contents of Ex.A-1, acceded to the submission of the plaintiff holding the said issue in favour of the plaintiff.

14. Concerning damages covered by issue No.4, as against the plea of the plaintiff to grant Rs.90,000/- per month, held that the defendant is liable to pay damages at Rs.75,000/- per month from the date of suit till the date of deliver of possession and accordingly decreed the suit. Thus, the Court below while decreeing the suit directed the defendant to vacate the suit schedule property and handover possession thereof to the plaintiff within two (2) months with further directions to pay Rs.2,45,000/- towards arrears of rent with interest at 12% per annum from the date of suit till realisation and to pay damages at Rs.75,000/- per month from the date of suit till the date of delivery of possession, however, directed the parties to bear their own costs.

15. It is that judgment and decree, which the defendant challenged contending in the grounds of appeal, that the finding of the Court below that termination of lease as proper and valid is improper for the reason that the legal notice, dated24-10-2011, terminating the lease was returned with an endorsement 'addressee left' and the conclusion thereon arrived at by the Court below placing reliance on Ex.A-5 letter is not correct.

16. The next ground is that the Court below deviated in appreciating the pleadings and the evidence on record that the period of lease as agreed between the parties was five years and as per the understanding, the defendant can make construction over an area of 1,400 square feet, which he did undertake by investing Rs.12,00,000/- and despite the fact that the plaintiff did not refer or dispute the improvements made by him, somehow, the Court below did not appreciate it in proper perspective.

17. It is also contended that the Court below committed wrong in allowing I.A. No.980 of 2012 filed by the plaintiff with a prayer 'to strike off the defence of the defendant' by order, dated 13-07-2012, and directing payment of arrears of rent in the absence of trial or evidence, though, such a relief was not sought and thus, it is opposed to the law laid down by this court in M/s. Tanmai Jewels Pvt. Ltd., Hyderabad and another v. ch. Sreesaila Kumari and another [ 2013 (6) ALD 359 (DB) ]. It is further contended that the court below committed wrong in allowing I.A. No.1877 of 2012, by order, dated 27-11-2012, forfeiting the right of the defendant to defend the case for failing to comply with the orders in I.A. No.980 of 2012 and proceeding to decree the suit on the sole premise that no evidence was let in by the appellant.

18. It is, still, further contended that the Court below relying solely on the oral evidence of the plaintiff held that the agreed rent was Rs.60,000/- and that the security deposit was Rs.1,80,000/- and that the commencement of lease was from 01-11-2010, in the absence of other supporting evidence, which is not in accordance with the settled principles of law.

19. It is lastly contended that since the Court below determined the damages at Rs.75,000/- per month without any enquiry or material on record, it is unsustainable.

20. The defendant, therefore, sought to set aside the judgment and decree challenged herein.

21. Heard Sri G.M. Mohiuddin, learned counsel for the defendant (appellant), and Sri S. Ravi, learned senior counsel representing Sri T. Vinod Kumar, learned counsel for the plaintiff (respondent), and perused the material on record.

22. Learned counsel for the defendant contends that the commencement of lease was from 01-12-2010 but not from 01-11-2010 and that the agreed rent was Rs.35,000/- per month but not Rs.60,000/- as pleaded by the plaintiff and that there was no valid termination of tenancy under law and merely based on Ex.A-5, it cannot be concluded that the requirement for effecting notice, was proper. It is his next submission that despite the understanding between the plaintiff and the defendant, pursuant to which only the defendant invested Rs.12,00,000/- for construction on the southern side of the building in the first floor, preceded by negotiations between the parties, to satisfy vastu and to assist the plaintiff, the same was not taken note by the Court below, and ruled against the defendant. It is his further contention that determination of damages at Rs.75,000/- per month by the Court below is without any basis and thus sought to set aside the judgment and decree.

23. The learned counsel for the plaintiff (respondent), on the other hand, contended that the agreed rent was Rs.60,000/- and not Rs.35,000/- and that the notice of termination of tenancy was proper and valid in view of the communication of the Sub Post-Master, Somajiguda, dated 11-04-2012, under Ex.A-5 proving that the notice under Ex.A-5 was effected on the defendant. It is also submitted that the Court below rightly held that the defendant failed to substantiate the alleged investment of Rs.12,00,000/-, as no evidence was let in therefor. It is his submission that determination of mesne profits at Rs.75,000/- per month cannot be faulted as agreed rent in the year 2011 itself was Rs.60,000/- per month, which can be gathered from the proved facts. It is his further submission that striking out defence under Order – XV-A of CPC by the Court below is in accordance with law as no proof of compliance was placed before the Court below, it is his submission that there is absolutely no merit in the appeal and sought to dismiss the same.

24. In view of the contentions raised by the learned counsel on either side, the main points that arise for consideration in this appeal are:

1. Whether there was valid termination of tenancy?

2. Whether the rent agreed was Rs.60,000/- per month, as prayed for by the plaintiff, or Rs.35,000/- as contended by the defendant?

3. Whether determination of damages at Rs.75,000/- per month for use and occupation by the defendant can be sustained?

POINT No.1:

25. The relationship of landlord and tenant between the parties is not in dispute. It is also not in dispute that no lease deed or rental agreement was entered into between the parties, in which case, it has to be construed that the tenancy was from month to month as envisaged by the provisions of Section 106 of Transfer of Property Act, 1882 (for short, 'the Act'). We have already adverted to the pleadings and the submissions made by the learned counsel on either side on this aspect of the case.

26. The requirements as per Section 106 of the Act are that the tenancy is terminable on the part of either lessor or lessee by fifteen (15) days notice expiring the month of the tenancy and that the notice must be in writing, signed by or on behalf of the person giving it, and either be sent by post to the 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.

27. Thus, Section 106 of the Act contemplates that if the notice is sent by post, if it is proved that the letter containing the notice to quit is properly addressed, prepaid and posted by registered post service, be deemed to be effected since the same had been held to amount to a presumption under Section 27 of the General Clauses Act 1897, which unless rebutted, would prove the fact of service.

28. We would like to place reliance on a decision of the Patna High Court in Matadin Sharma v. Upendra Sharma (AIR 1972 PATNA 292 (V 59 C 80)), rendered by a learned single Judge, in the context of above presumption, quoted a few lines from the decision of the Privy Council in Harihar Banerji v. Ramshashi Roy (AIR 1918 PC 102), where Lord Atkinson after approving the decision of the High Court to the effect that if a letter, properly directed, is proved to have been put into the post office, it is presumed that the letter reaches its destination at the proper time according to the regular course of business of the post office and is received by the persons to whom it is addressed. We would like to extract the observations of their Lordships thus:

'If a letter properly directed, containing a notice to quit, is proved to have been put into the post office, it is presumed that the letter reached its destination at the proper time according to the regular course of business of the post office; and was received by the person to whom it was addressed. That presumption would appear to their Lordships to apply with still greater force to letters which the sender has taken the precaution to register, and is not rebutted, but strengthened, by the fact that a receipt for the letter is produced, signed on behalf of the addressee by some person other than the addressee himself.'

The learned single Judge also quoted a Bench decision of the Calcutta High Court in Commissioner of Income-tax v. Mulchand Surana (AIR 1956 Cal 537), in support of the view he has taken.

29. In Commissioner of Income-tax’s Case (Supra 4), a Division Bench of Calcutta High Court, while dealing with a similar situation under the provisions of Section 34 of Income Tax Act as to proper and sufficient service of notice referred to Illustration (b) of Section 16 and Illustration (f) of Section 114 of the Evidence Act, in the context of the main presumption inlaid in Section 27 of the General Clauses Act. Illustration (b) of Section 16 of the Evidence Act reads thus:

'The question is, whether a particular letter reached A. The facts that it was posted in due course, and was not returned through the Dead Letter Office, are relevant.'

Illustration (f) of Section 114 of the Evidence Act reads thus:

'The Court may presume that the common course of business has been followed in particular cases.'

Section 27 of the General Clauses Act which provides presumption relates to a presumption of fact, which can be rebutted and it reads thus:

'Where any Central Act or Regulation made after the commencement of this Act authorizes or requires any document to be served by post, whether the expression 'serve' or either of the expressions give' or 'send' or any other expression is used, then, unless a different intention appears, the service shall be deemed to be effected by properly addressing, pre-paying and posting by registered post, a letter containing the document, and, unless the contrary is proved, to have been effected at the time at which the letter would be delivered in the ordinary course of post.'

30. Thus, in our view, Ex.A-1 sent by registered post with acknowledgement due satisfies the requisites of Section 106 of the Transfer of Property Act, driving us to construe that there has been valid termination of tenancy.

31. Besides the presumption drawn basing on Ex.A-1 as to service of notice of termination of tenancy, there is positive evidence to show that the notice was effected on the defendant. The plaintiff has taken pursuant relevant steps as a man of ordinary prudence would do in addressing the postal authorities, since she did not receive acknowledgement nor the registered envelope sent to the address of the premises let out. The evidence of PW.1 shows that she got the notice sent to the residential address of the Managing Director of the defendant and to the tenanted premises. Since the acknowledgement was not received, a letter, dated 10-04-2012, was addressed to the Senior Superintendent of Post Office, Hyderabad City, for which Ex.A-5 reply was given stating therein that the Sub Post-Master, Jubilee Hills, intimated over phone, the Registered Letter U/R was delivered to the addressee on 27-10-2011. It is, therefore, abundantly clear that service of quit notice was properly effected on the defendant, and, therefore, the submission of the learned counsel for the defendant that the plaintiff failed to place sufficient proof as to effecting Ex.A-1 notice is without any merit. The point is accordingly answered.

POINT No.2:

32. Two aspects require consideration under this point. First, whether the tenancy did commence from 01-11-2010 or from 01-12-2010, as contended by the rival parties. Ex.A-6, statement of account of the plaintiff with the Andhra bank, for the period from 01-11-2010 to 29-02-2012 would clinch the issue. The second and third entries therein would show that the cheques for Rs.1,80,000/- and Rs.52,500/- issued by the defendant, when sent to the bank, were not credited to the account of the plaintiff, as they were rejected on the same day that was on 11-11-2010 for 'insufficient funds'. The cheque for Rs.52,500/- was again tendered on 15-11-2010, but the same was rejected on the same day for 'insufficient funds.' The cheque for Rs.1,80,000/-, which was tendered on 18-11-2010, was also rejected on the same day for 'insufficient funds.'

33. Thus, the above entries, in our view, lead to an inescapable inference that the amount of Rs.1,80,000/-, which is termed as interest-free deposit for three (3) months rent, would invariably indicate that the agreed monthly rent was Rs.60,000/- but not Rs.35,000/-. Even the second cheque for Rs.52,500/- after deducting the amount towards tax at source level would further strengthen the case of the plaintiff that the agreed rent was Rs.60,000/- per month while condemning the plea of the defendant that the rent was Rs.35,000/-. It is no doubt true, it was suggested to the plaintiff that the monthly rent was Rs.35,000/-, but it was bluntly denied by her. It appears, in the absence of a written rent note, the defendant appears to have intended to take undue advantage of the same contending that the agreed rent was Rs.35,000/- but not Rs.60,000/-. So, in view of the entries in Ex.A-6 statement of account and the evidence of PW.1, we have no hesitation in holding that the agreed rent was Rs.60,000/- per month but not Rs.35,000/-. The point is accordingly answered.

POINT No.3:

34. The Court below determined the damages at Rs.75,000/- per month. The plaintiff, of course, sought Rs.90,000/- per month towards damages for use and occupation by the defendant after the period of lease was determined. However, the plaintiff has not placed any material to show that there was hike in rents in the locality entitling her to claim the enhanced amount towards damages. Except the plea in her plaint to that effect and getting incorporated the same in her affidavit in chief-examination, no convincing evidence is placed to show that she is entitled to more than Rs.60,000/- per month towards damages. It is no doubt true, in the cross-examination, that part of the case of the defendant was not confronted to her, but that would not in any way clothe the plaintiff to entitle for Rs.90,000/- per month towards damages. The Court below has not assigned any reason leaving apart plausible reason in determining the amount at Rs.75,000/- per month towards damages from the date of suit till vacation of the premises.

35. Therefore, we are of the considered view that the plaintiff is entitled to Rs.60,000/- per month towards damages and to that extent, the finding of the Court below requires modification.

36. We, accordingly hold that the plaintiff is entitled to Rs.60,000/- towards damages for use and occupation of the tenanted premises from the defendant from the date of suit till vacation of the premises. The point is accordingly answered.

37. Incidentally we also would like to observe that the alleged investment of Rs.12,00,000/- as contended by the defendant suffers for want of legally acceptable evidence. No piece of documentary evidence is forthcoming either touching the alleged understanding between himself and the plaintiff or the location where the construction was made, more particularly, on the southern side of the first floor. Though, the defendant filed colour photocopies of the photographs in the material papers, but, in our opinion, they do not deserve any consideration as they do not constitute documentary evidence for not getting them exhibited before the Court below.

38. We, now advert to the submission of the learned counsel for the defendant that the order passed by the Court below in I.A. No.980 of 2012 amounted to granting relief which was not asked for. We have perused the orders passed by the Court below in all the three interlocutory applications. We would like to

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observe that the order forfeiting the right of the defendant to lead defence, in other words, striking out the defence under Order – XV-A of the Code was made in I.A. No.980 of 2012, dated 27-11-2012, as admittedly, the defendant has committed default in complying with the order, dated 13-07-2012, in I.A. No.980 of 2012. The defendant did not even choose to file any counter when notice therein was effected and, thus, constrained the Court below to pass the orders in I.A. No.1877 of 2012 striking out the defence of the defendant, which, in our view, is in accordance with law. 39. It is pertinent to mention at this stage that Order – XV-A of CPC was inserted in the First Schedule after Order – XV CPC by introducing an amendment through issuance of G.O. Rt. No.156, LAW (L.A.&J-Home Courts-D1), dated 29-01-2005, making it applicable to the erstwhile State of Andhra Pradesh. It provides for an effective remedy by conferring power on the Court to direct the defendant to deposit such amount on account of arrears up to the date of the order and, thereafter, continue to deposit in each succeeding month, the rent claimed in the suit, further empowering the Court to struck off defence of the defiant upon default committed by him. Hitherto, Order – XXXIX Rule 10 of CPC used to come to the rescue of the landlords/plaintiffs for giving protection against the defendant/tenant during the pendency of the suits to pay mesne profits/damages for use and occupation with the limitation that such direction was limited to the extent of payment of admitted amount/rent only, which is now obviated by introduction of Order – XV-A of CPC clothing the Court with the insignia of power to give direction to the defendant to deposit such amount as the Court may direct, of course, through the process of adjudication. 40. In the instant case, as mentioned by us in the above, the Court below has resorted to passing relevant orders in I.A. No.980 of 2012 and I.A. No.1877 of 2012, which, in our view, do not suffer from any infirmity. 41. We are, therefore, not inclined to agree with the submission of the learned counsel for the defendant (appellant) that the Court below granted the relief in I.A. No.980 of 2012 that has not been asked for. 42. In view of the findings tendered by us on the points referred to hereinabove, the appeal is partly allowed by reducing the amount of Rs.75,000/- per month to Rs.60,000/- per month towards damages granted by the Court below and in all other respects the judgment and decree of the Court below is confirmed. 43. As it is represented by the learned counsel for the defendant (appellant) to grant time to secure accommodation, the defendant is granted three (3) months time to vacate the premises subject to filing a written undertaking to vacate the premises within a period of two weeks from today before the Registry by serving a copy to the other side. 44. With the above directions, the appeal is allowed in part. There shall be no order as to costs. 45. As a sequel thereto, Miscellaneous Applications, if any, pending stand disposed of.
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