T. Ramaprasada Rao, J.
1. The Union of India and the Executive Engineer, C.P.W.D. Madras, who were the defendants in O.S. No. 5383 of 1967, Gity Civil Court Madras, are the appellants. The Andhra Bank Limited, owned premises No. 6, Linghi Chetty Street, Madras-1, which had three floors. The Executive Engineer, C.P.W.D on behalfof the Union of India took on lease the second and the third floors of the above premises from 1st July, 1955 on a monthly rent of Rs; 1,150 and on an increased rent of Rs. 1,500 with effect from 1st July, 1959. Certain fittings and fixtures also formed part of the demise. The tenancy continued without any complexity till 30th June, 1962 by which time, the period of the lease expired. The plaintiffs under Exhibit B-2 made it known that on the expiry of the lease, they were not willing to renew the lease and also put on notice the defendants of the fact that they have not expressed their desire in writing for renewal of the lease as contemplated in the original agreement of lease. Under Exhibit B-2, the plaintiffs also notified the defendants that they were in arrears of rent by then. Under ExhibitB-3 dated 24th December, 1962, the defendants expressed their desire to continue as tenants of the premises in question on the same terms and conditions for a further period of three years. On receip t of this, the pla in-tiffs through their lawyer and under Exhibit A-1, detcrmirsed the tenancy of the defendants, as there was no notice in accordance with the terms of the original lease from the defendants requesting foi a renewal of the lease for a further term. The defendants were, therefore, called upon to quit and deliver vacant possession. Ihis was followed by another letter Exhibit A-2, which ran as follows:
9/4016 29th August, 1963The Executive Engineer, Madras Central Division,G.P.W.D., Madras.without prejudice. Dear Sir,Re : Premises - rent.
With reference to your letter No. 3722-M dated 27th August, 1963, we have to state that the amount of Rs. 7,500 was received without prejudice to our legal adviser's letter No. 248 of 1963 dated 24th March, 1963, and kept in suspense account-
If you require further lease, we are prepared to renew the lease for a further period of 3 yeirs from 1st April, 1963 on an enhanced rent of Rs. 2,400 per month, at Us. 40 per 100 sq. ft. The C.P.W.D. pays rent Rs. 45 to Rs. 50 per 100 sq. ft. to our next building 'Mysore Bank Building.
Due to high cost of maintenance and increase in local taxes, we were compelled to enhance the rent as above.
We are not in favour of continuing the lease at Rs. 1,500 p.m. any further. Please treat the matter as specially urgent and communicate your acceptance to us immediately.
(Sd.) * *
The plaintiffs made their position clear under Exhibit A-2 that they were not willing to extend the period of the lease and accept the defendants as tenants, unless they were prepared to pay an enhanced rent of Rs. 2,400 per month. They set out the hypothesis under which they have estimated the rent at Rs. 2,400. After an attempt was made by the State Government to requisition the demised property for the use and occupation of the Union Government, which apparently, did not fruition, as is seen from Exhibit B-1, which is a letter from the Collector of Madras to the defendants, the result was that the defendants were continuing ir possession cf the property after the determination of the lease and after the landlords had made it clear that they should pay an enhanced rent of Rs. 2,400 permonth on and after the date of termination of the lease. Ir fact, the plaintiff under Exhibit A-4 requested the Collector of Madras to withdraw the notification issued under the Requisitioning and Acquisition of Immovable Property Act, 1952 and explained in detail their stand that they were willing to further accommodate the Union Government in the premises provided they were prepared to pay either as rent or as damages for use and occupation of the premises at the rate of Rs. 2,400 per month. The defendants were reminded by Exhibit A-5 dated 30th June, 1964 that the defendants had not replied to the demand for enhanced rent made by the landlords. They have also informed the defendants through the Assistant Engineer C.P.W.D. that if rents are paid at the old rate of Rs. 1,500, it will only be received as part payment of rent and that they were of the view that the defendants are agreeable to pay the difference of Rs. 900 in rent from 1st April, 1963 onwards. Finding that no rents were paid from 1st March, 1964 to 30th September, 1964, the plaintiffs demanded such rent at Rs. 400 per month ard also reminded the defendants that the difference at the rate of Rs. 900 per month towards the rent for the period commencing from April 1963 to February 1964,was still outstanding. They asked for the payment of such arrears of rent. Further reminders for payment of the arrears of rent at the enhanced rate from the plaintiffs were of no avail. Ultimately, the premises was vacated on 18th April, 1966, but without the defendants paying the difference between the original rent and the demanded enhanced rent. The plaintiffs, therefore, gave their final notice of demand under Exhibit A-10 dated. 11th May, 1966 sotting out their stavurl. Inter alia, they alleged that as the defendants continued in possession of the demised premises after the termination of the Isase, a:ad after a demand for enhanced rent was made ar,d when it was made clear that it would be collected either as rent or as damages for use and occupation, the plaintiffs assumed that the defendants continued in possession by signifying their assent to pay the enhanced rent. As such rent had not been paid, they claimed the arrears of rent by then due in accordance with the enhanced rate. The plaint was filed in 1967 and described the occupation of the defendants after the 30th of April, 1963 as unlawful and claimed damages for use and occupation of the premises, if not as rent, for the period commencing from 1st May, 1963. But as on the date, when they filed the suit, the plaintiffs restricted their claim only to the allowable period and claimed a sum of Rs. 22,110 being the difference of rent from 1st April, 1964 to 18th April, 1966 at Rs. 900 per mensem or for damages and occupation and Rs. 3,440 being the arrears of rei.t for the period commencing from 19th April, 1966 to 31st May, 1966 at Rs. 2,400 per mensem or for damages in Her thereof and in addition claimed a sum of Rs. 579 being the damages to the electrical fittings and installations which formed part and parcel of the lease. The defendants took up the position that they are not bound to pay at the enhanced rate of rent of Rs. 2,400 and the plaintiffs ought to have taken redress in the Rent Control Court, if they were dissatisfied a.bout the rent paid and as rent at the aid rate of Rs. 1,500 has already been paid, they denied liability. They denied also their liability to pay any damages towards the breakages of the fixtures. They admitted the correspondence that passed between the parties, but would automatically take up the stand that the plaintiffs are not entitled to enhance the amount as claimed, either as rent or as damages.
2. The learned City Civil Judge framed the following issues:
(1) Whether the suit is maintainable, in view of the Arbitration Clause in the lease deed?
2. Whether the pis intiffs c? n appropriate rents at the alleged enhanced rate, when there has already been a specific appropriation by the defendants?
3. Whether the alleged damage to electrical fittings and electrical installations is not due to normal wear and tear iv use?
4. Whether the alleged enhanced rent can be claimed by means of this suit?
5. To what relief?
6. Whether there was any contract to pay rent as Rs. 2,400 p.m.?
He ultimately decreed the suit for Rs. 25,550 with proportionate costs and found that the alleged damages to the electrical fittings and installations have not been made out. He accepted that by reason of the continuance of the defendants in the premises and since they did not repudiate the demand for enhanced rent, the defendants should be deemed to have signified their consent for payment of such increased rent. It is as against this, the present appeal has been filed.
3. The only question argued before us by Mr, Parasaran, the learned Counsel ior the appellants is whether the plaintiffs respondents are entitled as a matter of course, to rent or damages for use and occupation at the enhanced rate on the only ground that the appellants did not repudiate the claim in the normal way There is no dispute abovt the quantum, claimed by thfi plaintiffs on the basis of their stand that the defendants were bound to pay such enhanced rent on the ground that they have impliedly assented to it by not replying to it. The question, therefore, is whether the appellants should automatically be made liable to pay rent or damages for use and occupation for the period in question on the only ground that they have not expressly repudiated their liability to pay the enhanced rent.
4. The other question is as to what is the character of the money, which: the occupant would, in, the above circumstances, be liable to pay to the landlords; whether it is rent or damages for use and occupation.
5. The third question Is whether the civil Court, in the absence of consensus as between the parties, as regards the rent or damages to be paid by the tenant remaining, in occupation after the determination of the tenancy, has jurisdiction to investigate and find what possibly would, be reasonably fair reut or reasonable damages in. the alternative an occupant should payto the landlords in the above circumstances.
6. We shall first deal with the general aspect, which flows from the jural relationship of landlord and tenant.
7. The jural rdationship of lessor and lessee springs from a contract; under it, a tenant by reason of the element of transfer j f of the right in immoveable property enjoys such property for a certain time either express or implied or in perpetuity in consideration of price paid or promised. Under Section 106 of the Transfer of Property Act, which operates in the absence of a contract or local law or usage to the contrary, provides for termination of the lease according to its tenor. In certain cases, a lease is deemed to be one from month to month and in other cases a lease is from year to year. In the former the lease is determinable by a notice issued by the lessor by 15 days expiring with the month of tenancy. In the latter, it is determined by a similar but six months notice expiring with the year of the tenancy. There may be cases where the lessee may continue to remain in possession of the demised property after the determination of the lease. Section 116 of the Transfer of property Act provides that in such cases, if the lessor or his legal representative accepts rent from the lessee or otherwise assents to his continuing in possession, the lease is renewed according to the purpose for which the property is leased, as specified in Section 106 of the Transfer of Property Act. In all situations the word 'letting' should not be confused with the permission given to another to occupy immovable property as a licsnsee. The Transfer of Property Act well maintains the distinction between a licensee and a lessee. In the former case, no interest in the immovable property is transferred, by which transfer alone, the relationship of landlord and tenant could be created. Vide Dr. H.S. Rikhy v. The New Delhi Municipal Committee : 3SCR604 .
8. What ther is the position, if a tenant holds over in the sense that he continues in possession of the 'demised premises' after the determination of the lease? One such method by which landlord's assent could be presumed is by acceptance of rent. In Tother cases, there should be reasonable, but acceptable proof that the landlord has otherwise assented to the, tenants continuing in possession after the termination. in all such cases, the act of the tenant is decribed as a tenant holding over. By fsuch continuance in possession after determination, the person in occupaton is called a tenant at sufferance. If such possession is attributable to the consent of the landlord given either expressely or by necessary implication, then he is called a tenant hold fog over or tenant at will. But if in a given situation, such consent is not proved, then, he is called a tenant by sufferance. The Supreme Court had occasion to consider such situations in decided cases.
9. In Bhawaji v. Himatlal : 2SCR890 the legal position has been stated thus:
The act of holding over after the expiration of the term does not create a tenancy of any kind. If a tenant remains in possession after the determination of the lease, the common law rule is that he is a tenant on sufferance. There is a distinction between a tenant continuing in possession after the determination of the term with the consent of ths landlord and a tenant doing so without his consent. The former is a tenant at sufferance in English law and the latter a tenant holding over or a tenant at will. The assent of the landlord to the continuance of possession will create a new tenancy. What the Section contemplates is that on one side there should be an offer of taking a new lease evidenced by the lessee or sublessee remaining in possession of the property after his term was over and on the other side there must be a definite consent to the continuance of possession by the landlord expressed by acceptance of rent or otherwise.
10. In Badrilal v. Indore Municipality : 3SCR15 wherein again Alagiriswarhi, J., speaking for the Bench, expressed the view that a person, who is lawfully inoccupation of the premises does not become a trespasser and if he does not become a tenant holding over, he would be a tenant by sufferance. The essential principle, therefore, appears to be that if the landlord consents to such continuance of the tenant in the premises after the deterrrination of the lease, he would be a tenant holding over, but in the absence of any such consent, he would be deemed to be a tenant by sufferance. But in no case he can be characterised as a trespasser. In all such cases, the landlord will be entitled to damages for such use and occupation, the measure of damages being the amount of the profits, which the landlord with due diligence could ' have received but for the wrongful contiuuance of the tenant in the property.
11. We have already seen thatthe landlord gave an option to the tenants in the instant case while determining the tenancy at the end of the agreed lease period. They would say that they were not willing for the tenants continuing in occupation, unless they were prepared to pay a sum of Rs. 2,400 per month as rent or damages for use and occupation. Such was the mesne profits, which the landlords expected, having regard to the prevailing rents in the locality to which he referred under Exhibit 42.
12. Mr. Hanumantha Rao, the learned Counsel for the landlords refers to various decisions of the Courts in India and would contend that the lower Gourt was right in decreeing the suit, as the tenants without the assent of the landlords continued in possession of the property notwithstanding the fact that they were warned that should they be in possession after the determination of the lease, they should pay damages or mesne profits or the fair rent of Rs. 2,400 per month. We shall refer to the various decisions cited by the learned Counsel:
13. In S. Burge v. Moulvi Mohammad Inamullah Khan a single judge of that Court held that if a landlprd gives a notice to the tenant that he would be charging him an enhanced rent from a certain date and that the lessee was free to vacate, if he was not accepting such enhancement, then the lessor should be deemed to have agreed to pay the enhanced rent.
14. In Sander Singh v. Ram Saran Das A.I.R. 1933 Lah. 61 a Division Bench of that Court apparently relying upon the English law rule of sufferance to pay double rent by way of damages in case the tenant holds over without consetjt observed thus:
Ordinarily the proper measure of damages in cases whsre a tenant cortumaciously holds over is twice the amount of the rent payable by the tenant.
15. In Madan Mohan Carg v. Bohrct Ram Lal : AIR1934All115 when an increased rect was demanded by the landlord giving an option to the tenant to vacate, if he was; not inclined to pay it and equally refused to vacate, the leaned single Judge of that Court held that the tenant must be held to have agreed by implication to hold over and to have accepted the proposal to pay-rent at the enhanced rate proposed by the landlord in his notice and, therefore, the landlord could claim the rent as demanded. Here again, the English law principle of payment of double rent in default, was refered to.
16. In Parekh Mondial Bhimji Bhay Chokshi v. Anant Govind Jog Sangli a single Judge of that Court, after referring to the Oudht and Allahabad judgments, held that the tenant in such circumstances, should be deemed to have accepted the enhanced rent in spite of his refusal; but added that tha Court has a discretion in the matter and whore the enhanced rate demanded is obviously penal and impossible, the Court would not grant it.
17. Lakshmiah Setty v. Rama Nanjundiah A.I.R. 1950 Mys. 62. the learned Judge was prepared to fall in a line with the ratio in the decision of the Oudh Court.
18. Ramaswami, J., in Hajee Mohamed v. Globe Theatres A.I.R. 1956 Mad. 216 laid down, according to-us, the more equitabh rule, which should be adopted in such circumstances, as follows:
In a suit for payment of mesne profits by a landlord against his tenant holding over after the expiry of the lease, the rentals of other pieces of pioperty more or less of same description is a recognise method of determining mesne profits. This method is subject to this defects namely, no two pieces of property can be precisely similar in all their circumstances and conditions. There must be differences always though of vatying degrees and no hard and fast Rule can be laid down as to the allowances to be made for such differences.
But valuation is not an exact science. It is an enquiry relating to a subject abounding in uncertainties where there is more than ordinary guess work and where it would be very unfair to require an exact exposition of reasons for the conclusions arrived at. A certain amount of conjecture is inevitable but Courts should be careful not to go too far in this direction.
19. In fact Odgers, J., in Kuppuswami Pitlai v. Mohammed Kasim : AIR1926Mad566 touched, upon the equitable rule referred to by Ramaswami, J., in the above case and said that a tenant remaining in possession after the determination of the lease is liable for reasonable damages for so remaining in possession.
20. On the basis of the above decisions, learned Counsel for the respondent says that the claim of the landlord for enhanced rent or damages is per se sustainable. According to him, the Court cannot investigate whether the demand is reasonable or not and as long as the contumaciousness on the part of the tenant in continuing in possession after determination is in disputed, he has to suffer the demand for enhanced rent.
21. Mr. Prasaran, on the other hand, while hesitantly saying that the demand for enhanced rent would not automatically be enforced in the absence of a denial by the tenant or arefusal on his part to vacate, suggests more or less a via media basing on the equitable principles already referred to and laid down in the other decisions referred to by him.
22. We have already referred to the sic Kuppusw ami Pillai v. Mohammed sic : AIR1926Mad566 wherein this Court was of the view sic the enhanced demand cannot automatically be pressed into service, but it Should be proved and established to be a illegitimate and a reasonable demand in cases where the tenancy has been determined and the tenant continues in the demised premises by sufferance.
23. In Narain Das v. Dharam Das A.I.R. 1932 Lah. 275 a. Division Bench was considering a similar situation. In that case, a tenant failed to vacate notwithstanding a notice to quit received by him from the landlord and notwithstanding the threat extended by the landlord that if he failed to vacate, he world be charged double rent. The learned Judges said that it was a matter of discretion resting with the Court to decide whether a tenant contumaciously holding over should be penalised to the extent of making him pay double the rent or some lesser amount.
24. In Sahir Hussain Khan v. Sirajul Hao : AIR1951All853 a Division Bench of that Gourt said that a tenant, in such circumstances, would be liable to pay damages for use and occupation at a reasonable rate not exceeding; the enhanced rate stated in the notice for the period of the holding over.
25. In Banarsilal v. Bkagawan A.I.R. 1965 Raj. 167 the Court reiterated the principle that the Court has the discretion to award damages; but stated that the lessor cannot as of right claim the enhanced rate of rent as demandded by him. They would characterise the action of the landlord as an offer and unless it is accepted by the tenant, the lessor cannot enforce that condition by his unilateral action.
26. In Bhagwan Das v. Union of India A.I.R. 1961 J.& K. 39 a Division Bench of that Gourt consisting of the Chief Justice and S. Murtaza Fazl Ali, J., said:
Where the tenant after the expiry of the lease remains in occupation of the premises in spite of the fact that the landlord served a notice on him to vacate and warned him that if he remains, in occupation he will have to pay a specified sum as damages for wrongful use and occupation of the bvilding, the defendant tenant will be liable to pay that amount provided it is not penal and unconscionable.
27. The Supreme Court, in State of West Bengal v. M/s. B.K. Mondal and Sons : AIR1962SC779 to put it in our own words, felt that in such circumstances, though there is no contract as is ordinarily understood the conduct of theparties createsa relationship resembling that arising out a contract. This is based on the well-known principle of avoidance of unjust enrichment on the part of the lessee.
28. In a case where the rent has not been fixed or agreed upon between the landlord and the tenant, that the Court can intervene and fix a fair and equitable rent, has been stressed upon by the Supreme Court in D.T. Mangalmurti v. State of Bombay : AIR1959SC639 .
29. Weighing the relative contentions of parties, the following principles emerge:
1. If a tenant at sufferance continues to occupy the premises after the determination of the lease, then he cannot unjustly enrich himself by claiming that he will pay only the quondam rent and not a reasonable rate of damages for use and occupation of the premises.
2. If he assents to pay the enhanced rent demanded at a time when the landlord determines the lease, then there is no difficulty at all. He will be considered as a tenant holding over on the basis of a new contract of lease as between himself and the landlord.
3. If the tenant, in spite of the warning contumaciously remains in possession of the premises, the landlord secures a right to get a reasonable compensation from the tenant for such occupation but it need not necessarily be the enhanced rate of rent claimed by him but in no circumstances, it can exceed the enhanced rate demanded by him.
4. The Court should investigate and it has the jurisdiction to do so, and find in its discretion whether the enhanced rate claimed by the landlord, in such circumstances is penal or otherwise equitably justified.
5. The Court has the power and indeed the discretion to fix a fair and equitable rent in such situations.
30. On the merits, we have seen that the respondent in this appeal not only determined the tenancy of the appellants at the appropriate time, but refused to renew the lease for a further period of three years from 1st April, 1963. On the other hand, under Exhibits, A-2 and A-4, the respondent as landlord made it clear that the appellants could continue in occupation provided an enhanced rent of Rs. 2,400 per month was paid. The tenants also were warned that they would be charged damages for use and occupation at the same rate, if they fail to agree to pay the enhanced rent. The lower Court was wrong in assuming an implied contract as between the landlord and the tenants on the only ground that the tenants did not expressly repudiate their liability to pay rents or damages at the rate claimed. Undoubtedly, the occupation of the appellants after the date of determination of the tenancy was contumacious in nature and they were tenants remaining in the premises by sufferance. They have to pay a reasonable rent or damages for such contumacious occupation. The Court, as already stated by us, has the discretion to fix a reasonable rate in either case. The lower Court was wrong when it stated that it was open to the defendants to file a petition for fixation of fair rent for, it is admitted before us that at the relevant time, the parties could not approach and get the benefit of the Rent Control Legislation in the matter of the fixation of fair rent. It cannot be said that by the mere fact that defendants elected to occupy the premises compelled them to pay the enhanced rent as a matter of course; We are, therefore, unable to agree with, the finding of the Court below that the enhanced rent could be claimed by the respondent. It is a matter, which has to be further investigated by the Court and in its discretion fix a reasonable rate either, as rent or as damages for use and occupation. The tenants were paying with sic only the quondam rent of Rs. sic The landlord demanded a rent of Rs. 2,400 as damages at that rate basing thun claim on the rent said to be prevailing sic the locality. The lower Court ought to have probed into this aspect and found on further evidence or on the evidence on record as to what could be the possible reasonable rent or atwhatrate the appellants should suffer damages for such contumacious overstay.
31. We, therefore, remit the subject-matter to the Gourt below for ascertain ing as to what possibly could be the fair and equitable rent or rate of damages for the period as claimed by the landlord and accepted by the Gourt and thereafter grant the decree quantifying such arrears of rent or damages as the case maybe. The parties are at liberty to adduce fresh evidence before the trial Gourt, if they consider necessary.
32. Accordingly, the appeal is allowed in part, but there will be no order as to costs.