JAWAHAR SARATHY P. Vs. VIJAYA BANK

JUDGEMENT

(1.) This appeal is filed by the appellant challenging the judgment and order dated 28.03.2013 passed in F.D.P.No.23 of 2009 instituted under Order 20, Rule 12 of the Code of Civil Procedure for holding an enquiry and determination of the damages suffered by the appellant on account of failure on the part of the respondents to quit and deliver vacant possession after termination of the tenancy.

(2.) The appellant has filed the suit in O.S.No.7097 of 2006 for the relief of ejectment, damages and other consequential reliefs. The respondents appeared through their counsel and contested the matter and thereafter, the Court below decreed the suit with cost. Being aggrieved by the said judgment and decree, the respondents herein have preferred Regular First Appeal No.1023 of 2008, the same was dismissed. Thereafter, the appellant has filed the Final Decree Proceedings against the respondents for holding an enquiry and determination of damages. The respondent No.3 appeared before the Court below and filed its objection statement. The Court below, after considering the evidence of both the parties, allowed the petition filed under Order 20, Rule 12 of the Code of Civil Procedure in part directing the respondents herein to pay an additional sum of Rs.11,000/- per month as mesne profit to the petitioner for the period from 01.06.2006 to 31.12.2010. Being aggrieved by the said order of the Trial Court, the appellant/petitioner has filed the present appeal contending that the amount as determined by the Trial Court in Final Decree Proceedings is very meager.

(3.) In this appeal, the appellant would contend that the Court below has relied upon the document produced in Xerox which is neither marked nor produced in evidence. The Court below has relied upon the alleged rental agreement between Bhagyalakshmi and Srinath. The said document was neither pleaded in evidence nor the bank was beneficiary under the said deed and the said document was not produced in the evidence to substantiate the said contention. Therefore, the order passed in the Final Decree Proceedings cannot be sustained. It is contended that the very approach of the Trial Court in relying upon the lease agreement is null and void and is directly in conflict with the provisions of Section 49 of the Registration Act, 1908. Section 49 of the said Act specifically prohibits the Court from relying upon any document registration of which is compulsory under Section 17 of the said Act. On the same ground, the lease agreement was not permitted to be relied upon by the bank in the suit and in the appeal. The Court below however has relied upon the contention of the existence of void document and held that if not for the determination of tenancy, the appellant would not be entitled to damages as claimed for. The very approach of the Trial Court is perverse and therefore, it requires interference of this Court by enhancing the damages as Rs.23,000/- per month as against Rs.11,000/- per month granted by the Court below. Hence, prayed this Court to modify the order passed in F.D.P.No.23 of 2009, insofar as the same relates to refusal of the Court in granting a sum of Rs.11,000/- per month as damages out of Rs.23,000/- as claimed.