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2012 DIGILAW 456 (AP)

Sai Boda Hotels, Rep. by its Managing Partner v. Deep Charan Agarwal

2012-04-23

B.N.RAO NALLA

body2012
Judgment :- This second appeal is preferred by the appellant against the decree and judgment passed in A.S.No:231 of 2009 on 30th December, 2011 by the learned XIII Additional Chief Judge, (FTC), City Civil Court, Hyderabad confirming the decree and judgment passed in O.S.No:564 of 2006 on 30th July, 2009 by the learned IX Senior Civil Judge, (FTC), City Civil Court, Hyderabad. The appellant is the defendant-tenant and the respondent is the plaintiff-landlord before the Court below. The status of the parties will be referred to as arrayed before the Court below for the sake of convenience. Originally, the plaintiff filed the suit in O.S.No:564 of 2006 for recovery of possession and mesne profits. The plaintiff examined himself as P.w.1 and got marked Exs.A1 to A5 documents and on the other hand, the defendant examined D.W.1. No documents were marked on behalf of the defendant. The Court below having observed that the defendant in his cross examination stated that he did not file any documentary evidence to show that he demanded the plaintiff to register Ex.A1, Rental deed and he also admitted that he did not issue any notice in writing to that effect to the plaintiff the defendant is not entitled to the relief claimed under the counter claim and thereby, the plaintiff is entitled to eject the defendant from the possession of the suit property and that with regard to the mesne profits, the plaintiff is entitled to file a separate petition under order XX Rule 12 C.P.C., decreed the suit with costs directing the defendant to hand over the vacant and peaceful possession of the suit schedule property together with fixtures and fittings to the plaintiff within a period of two (2) months from the date of the judgment. Having aggrieved by the same, the defendant filed an appeal in A.S.No:231 of 2009 on the file of the XIII Additional Chief Judge (FTC) City Civil Court, Hyderabad. The lower appellate Court framed the following points for consideration: 1. whether the respondent is entitled for recovery of possession? 2. whether the appellant is entitled for counter claim without paying court fee in the appeal? 3. whether any interference is required in the judgment of Court below? The lower appellate Court framed the following points for consideration: 1. whether the respondent is entitled for recovery of possession? 2. whether the appellant is entitled for counter claim without paying court fee in the appeal? 3. whether any interference is required in the judgment of Court below? The lower appellate Court having observed that the plaintiff proved that the lease in question is month to month and he got issued a valid notice terminating the tenancy and the defendant failed to prove that he made an appeal against the dismissal of the counter claim and he cannot prefer an appeal against the dismissal of the counter claim without paying any court fee and having concurred with the findings of the Court below, dismissed the appeal with costs directing the defendant to deliver the vacant possession of the suit schedule property to the plaintiff by 31.3.2012. Having aggrieved by the same, the present second appeal is preferred by the defendant. Heard the learned counsel and perused the material available on record and the judgments impugned. As a matter of fact, in the second appeal, it has to be examined as to whether there is any substantial question of law to entertain the appeal. It is also well settled that it is not within the domain of this Court to investigate the grounds on which the findings were arrived at, by the last court of fact, being the first appellate Court. It is true that the lower appellate Court should not ordinarily reject witnesses accepted by the trial Court in respect of credibility but even where it has rejected the witnesses accepted by the trial court, the same is no ground for interference in second appeal when it is found that the appellate Court has given satisfactory reasons for doing so. Before going into the merits of the case, it is to be noted that the learned counsel for the defendant has fairly conceded the case of the plaintiff while seeking for time to vacate the premises in question. The Court below and the lower appellate Court have considered the evidence on record in a proper perspective and thereby, the lower Appellate Court is justified in concurring with the findings arrived at by the Court below. Both the Courts below have rightly arrived at the conclusions after appreciating the evidence and the other material available on record in a proper perspective. Both the Courts below have rightly arrived at the conclusions after appreciating the evidence and the other material available on record in a proper perspective. Apart from that, the grounds raised in the grounds of appeal, do not constitute any substantial question to entertain this second appeal. Hence, this Court does not see any merits in this appeal and the same is liable to be dismissed. Accordingly, this Second Appeal is dismissed, at the admission stage confirming the decree and judgment of the lower Appellate Court. At this stage, the learned counsel for the defendant seeks six (6) months time to vacate the plaint schedule property. In the facts and circumstances of the case coupled with the submission made by the learned counsel for the defendant, time for a period of four (4) months is granted to the defendant to vacate the plaint schedule property and hand over vacant possession of the same to the plaintiff-land lord, subject to the condition of furnishing an undertaking by the learned counsel for the defendant to that effect, within a period of three (3) Weeks from today. No costs.