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2013 DIGILAW 325 (AP)

O. Kalyan v. M. P. Rabindranath

2013-04-25

L.NARASIMHA REDDY

body2013
JUDGMENT The respondent is the owner of residential premises at Journalists Colony, Jubliee Hills, Hyderabad. The appellant took the premises on lease in the year 2006. The respondent got issued notice, dated 20.9.2006, under Section 106 of the Transfer of Property Act, requiring the appellant to vacate the premises. Alleging that the appellant did not vacate the premises despite receipt of notice, the respondent filed OS No. 1997 of 2006 in the Court of the IV Senior Civil Judge, City Civil Court, Hyderabad, for recovery of possession of the premises and arrears of rent. The particulars of arrears of rent and damages were also furnished. 2. The appellant filed written statement opposing the suit. His plea was that though initially the lease was for 11 months on rent of Rs. 18,000/- per month, a fresh lease came into existence for the enhanced rent of Rs. 20,000/- per month and that the notice issued on the strength of the initial lease is untenable in law. Certain other grounds were also urged. The trial Court decreed the suit through judgment, dated 18.1.2008. It was held that though the notice under Ex. A1 issued is valid and there are no arrears of rent, the appellant is liable to be evicted from the premises. As regards the mesne profits, it was left open to the respondent to file an application for interim orders thereof. 3. The appellant filed AS No. 99 of 2008 in the Court of XI Additional Chief Judge, (Fast Track Court), City Civil Court, Hyderabad, against the judgment and decree of the trial Court. The appeal was dismissed on 1.4.2011. 4. The grievance of the appellant is that, apart from upholding the decree passed by the trial Court, the lower appellate Court held that there are arrears of rent of Rs. 14,07,900/-. The judgment and decree of the trial Court, as confirmed by the lower appellate Court, are challenged in the second appeal. 5. Heard Sri R. Chandrashekar Reddy, learned Counsel for the appellant, and of Sri D. Hanumantha Rao, learned Counsel for the respondent. 6. There is no dispute that the respondent is the owner of the premises and that the appellant is his lessee. In the suit filed for eviction and recovery of possession, the trial Court framed the following issues for consideration: 1. Whether the plaintiff is entitled to the eviction of the defendant from the suit premises? 6. There is no dispute that the respondent is the owner of the premises and that the appellant is his lessee. In the suit filed for eviction and recovery of possession, the trial Court framed the following issues for consideration: 1. Whether the plaintiff is entitled to the eviction of the defendant from the suit premises? 2. Whether the plaintiff is entitled to recover the arrears of rent of Rs. 70,000/-? 3. Whether the plaintiff is entitled for recovery of mesne profits @ Rs. 30,000/- per month as claimed? 4. To what relief? 7. The respondent deposed as PW 1 and he filed Exs. A1 to A9. The appellant deposed as DW1 and he filed Exs. B1 to B3. The suit was decreed directing eviction and providing for determination of mesne profits. No decree was passed for arrears of rent. In AS No. 99 of 2008 filed by the appellant herein, the lower appellate Court framed the following points: "1. Whether defendant was irregular in paying rents and is not liable for eviction? 2 Whether plaintiff is entitled for recovery of rent and mesne profits. If so, to what extent? 3. To what relief? " 8. Even while upholding the decree of eviction, the lower appellate Court held that there are arrears of Rs. 14,07,900/- and a decree was passed accordingly. 9. The following substantial question of law arises for consideration, namely: Whether in the appeal filed by defendant, the lower appellate Court can grant greater relief than what was granted by the trial Court? 10. Though learned Counsel for the appellant has made an attempt to convince this Court that the Ex.A1 is not valid and that the decree for eviction cannot be sustained, this Court is not at all convinced. Assuming that there was any revision of rent on expiry of initial period of 11 months, there does not exist any qualitative change, as to the lease. Irrespective of the quantum of rent, the lease continues to exist. Section 106 of the Transfer of Property Act brings about termination of lease and it does not make any difference as to whether the rent was the same that existed when the lease commenced or was revised at a later point of time. 11. Further, the trial Court has left it open to the respondent to initiate proceedings for determination of mesne profits. 11. Further, the trial Court has left it open to the respondent to initiate proceedings for determination of mesne profits. The decree for mesne profits must follow, as a matter of course, whenever a decree or order of eviction is passed. 12. It is the appellant herein, who presented AS No. 99 of 2008. In case there were no merits in the appeal, it ought to have been dismissed the same, if necessary, by imposing costs. Beyond that, the lower appellate Court is not entitled to grant any relief to the respondent, over and above, what was granted by the trial Court. 13. Issue No. 2 framed by the trial Court covered the controversy as to the arrears of rent. A specific finding was recorded to the effect that there were no arrears of rent. The respondent did not file any independent appeal or cross objections in the appeal preferred by the appellant. However, the lower appellate Court has chosen to address itself to that issue and recorded a finding that there were arrears of Rs. 14,07,900/-. There was absolutely no justification for framing any point on this aspect, much less, for recording any finding on it. It hardly needs any emphasis that an appellate Court cannot grant any relief to the respondent therein, unless cross objections were filed before it. 14. Hence, the second appeal is partly allowed upholding the decree for eviction, but setting aside the decree passed by the lower appellate Court, as regards, the arrears of rent. The mesne profits directed by the trial Court shall be determined in a separate application that may be filed by the respondent, uninfluenced by the observations made by the lower appellate Court. 15. Learned Counsel for the appellant made a request that his client be granted time to vacate the premises. Learned Counsel for the respondent, on the other hand, submits that the appellant is due of arrears of rent for 18 months. Under these circumstances, the appellant is granted four months time to vacate the premises, subject to payment of arrears of rent, if any, within one month from today. If he fails to pay arrears of rent, it shall not only be open to the respondent to initiate execution proceedings, but also to recover that may be determined in the application filed for mesne profits. There shall be no order as to costs. 16. If he fails to pay arrears of rent, it shall not only be open to the respondent to initiate execution proceedings, but also to recover that may be determined in the application filed for mesne profits. There shall be no order as to costs. 16. The miscellaneous petition filed in this second appeal shall also stand disposed of.