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TMI Blog1998 (8) TMI 633X X X X Extracts X X X X X X X X Extracts X X X X ..... dings initiated by the landlord for eviction of the tenants. Therefore, we are not concerned with CCCA 13 of 1995 any more. 2. As all the suits are disposed of by a common judgment, all the three appeals also can be conveniently disposed of likewise and the parties will be referred, to as arrayed in OS 1003 of 1983 in which evidence was recorded. The respondent-landlord in CCCA 196 of 1994 and CCCA 64 of 1995 filed cross-objections in so far as the decrees went against him. 3. The landlord let-out the premises bearing No. 5-9-48/4, ground floor at Basheerbagh, Hyderabad for a rent of ₹ 525/-pcr month and later enhanced to ₹ 550/-somewhere in 1976. At that time the first floor portion over the ground floor was not constructed and the first defendant offered to construct the first floor initially at his cost subject to adjustment of construction cost payable with interest at 36% per annum from out of the stipulated rent of ₹ 1,500/- for the two mulgis to be constructed on the first floor. Accordingly, the landlord agreed and the first defendant constructed mulgis and he has been using the first floor portion also after completion of the mulgis. The tenants who ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s to deliver vacant possession of first floor mulgis constructed on ground floor mulgis 48/3 and 48/4. The landlord is also entitled to recover the arrears of rent for the months of May and June, 1983 at the rate of ₹ 1,500/- per month and fixture mesne profits from 1-7-1988 at the rate of ₹ 1,500/- till the date of realisation. The first defendant-tenant was held entitled for refund of deposit amount of ₹ 4,500/- from the plaintiff. OS No. 1 of 1984 filed by the first defendant-tenant was decreed for a sum of ₹ 95,898/- with interest at the rate of 12% per annum from 2-9-1984 till date of suit. The lower Court also decreed OS 922 of 1991 for arrears of rent from 2-9-1981 to April, 1983 for a period of 20 months at ₹ 1,500/-per month. 5. Sri Vilas V. Afzidpurkar, learned Counsel appearing for die landlord submits that when adjustment of rent out of the construction cost was admitted in OS 630 of 1983 which is renumbered as OS 922 of 1991 and OS No.700 of 1983 permitting amendment of the pleading of the landlord which was once refused is illegal and as such the landlord should not be permitted to take advantage of the amended pleas and inasmuch as th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ₹ 95,898/-after giving credit to a sum of ₹ 12,000/-being the rent for the period from 1-3-1981 to 1-9-1981. He also passed a confirmation letter dated 26-11-1980 confirming an amount of ₹ 90,000- as on 1-12-1980 after adjusting an amount of ₹ 45,000/-. It is also agreed by the plaintiff that the amount shall carry interest at 3% per month from 1-12-1980. The plaintiff issued further reply under Ex.B16 dated 28-1-1983 denying the said adjustment or confirmation letter. It is curious to note that the plaintiff has asserted in this notice that the construction charges incurred by the first defendant was already adjusted in the past rents long back. No details whatsoever about amount incurred towards construction or the mondily rents for which the said charges were adjusted are forthcoming. Ex B-7 is receipt issued by the plaintiff to the first defendant on 9-5-1979 stating that he received a sum of ₹ 50,000/-from the first defendant. Ex B8 is another receipt issued by him for a sum of ₹ 200/- being the rent for door No.5-9^18/4 for the period between 19th and 31 st October, 1980. Under Ex.B9 dated 26-11-1980 he confirmed that as on 1st December, 19 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er to alter or modify an interlocutory order which docs not decide the merits of the controversy in issue in the suit, but is only a step in reaching the decision in the dispute. In other words, all interlocutory orders \\ill not operate as res judicata within the meaning of Section 11 of Civil Procedure Code. For example, orders relating adjournment of the case, appointment of receiver or commissioner, stay of proceedings, casting of issues, summoning witnesses, calling for documents, remanding the case and many more such orders cannot operate as res judicata since they do not decide any matter in dispute arising in the suit. Even the same Court in respect of such orders has power to alter or vary them by subsequent applications on proof of new facts and subsequent events. Such fresh applications might be rejected if they arc filed without subsequent events as an abuse of the process of the Court and thus they may attain finality eventhough they do not strictly come within the meaning of Section 11 CPC (refer ). However, the appellate Court has got all the powers of the trial Court in addition to special powers conferred by the Code of Civil Procedure. Sub-section (1) of Section 1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . In Ex.B16 the notice that preceded the filing of the suits issued by the plaintiff, it is clearly admitted that the construction charges were already adjusted in the past rents meaning thereby UK construction charges are the liability of the plaintiff and so he adjusted the same towards past rents. In the plaints in OS 630 of 1983 (OS 922 of 1991) and OS 700 of 1983, the plaintiff admitted tliat the defendants have constructed the first floor non-residential portion at their cost and the same was agreed to be adjusted in monthly rents. Having regard to these pleas, it is now not open to the plaintiff to turn-round and say that the defendants constructed the first floor non-residential portion at their cost without any liability on the part of the plaintiff to bear all or any portion of the cost of construction as may have been incurred by them. No intelligible reason is assigned why an altogether different plea was taken at the earliest point of time and no satisfactory explanation whatsoever is forthcoming. Added to that, as already seen the plaintiff himself has issued to the defendants Ex B9. BIO and B11, which clearly show that he has admitted his liability for the expenditur ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... are of the view that the case on hand is not such an extreme case and the defendants cannot spring a surprise on the plaintiff by taking one or two sentences from the deposition of the plaintiff that the Court has no jurisdiction and that the suit for eviction is not maintainable. Had there been a proper plea to this effect the opposite party would have been in a position to traverse the same and he would be put on notice as to the exact case of the plaintiffs which he is required to meet. In addition to this, the learned Counsel for the landlord submits that 5-9-48/3 originally belongs to his wife and the same was gifted to their daughter who again gifted the same through a gift-deed dated 24-11-1978 to his son as such there is no change in the ownership of the property after the construction of the first floor portion or commencement of the lease from 1-10-1980 and the defendants recognised the plaintiff as their landlord. In view of all these, we have no hesitation to hold that the contention of the defendants in this regard has no substance. Learned Counsel for the plaintiff submits that the plaintiff had issued a notice to the defendants on 23-4-1983 terminating the tenancy fr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... learned Counsel also relies on the decision of the Supreme Court rendered in State Bank of Patiala and another v. Harbans Singh, and submits that in respect of a loan advanced by a bank for construction of building with an agreement to lease-out the building back to the bank on simple interest at 15% per annum on the amount would be reasonable. Relying on the said judgment, we feel that the plaintiff in OS 1 of 1984 is entitled to interest at 15% per annum from 2-9-1981 till the date of suit and at 12% from the date of suit till date of realisation. 12. In the result, CCCA 196 of 1994 is allowed partly to the extent indicated above and the first defendant is entitled to refund of a sum of a ₹ 4,500/- being the deposit of rent for three months with the plaintiff and the cross-objections filed by the plaintiff are dismissed. CCCA 64 of 1995 is dismissed so far as relief of eviction of the defendants is concerned, and the cross-objections filed by the respondent in this appeal are dismissed, but mesne profits arc restricted to the extern indicated above. CCCA 177 of 1995 is filed by the tenant questioning the decree granting arrears of rent from 2-9-1981 to April, 1983 at the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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