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2020 DIGILAW 526 (TS)

Kondal Rao Gajawada v. A. Damodar Reddy

2020-07-02

SHAMEEM AKTHER

body2020
JUDGMENT : SHAMEEM AKTHER, J. 1. This Second Appeal, under Section 100 of the Code of Civil Procedure, 1908, is filed by the appellant/defendant, challenging the judgment and decree, dated 20.12.2019, passed in A.S. No. 151 of 2017, by the VII Additional District Judge, Ranga Reddy District at L.B. Nagar, Hyderabad, whereby, the judgment and decree, dated 29.04.2017, passed in O.S. No. 310 of 2009 by the II Additional Senior Civil Judge, Ranga Reddy District at L.B. Nagar, directing the appellant/defendant to vacate and handover vacant possession of the suit schedule property within two months from the date of the said judgment and to pay arrears of rent of Rs. 45,000/- to the respondent/plaintiff and granting mesne profits, was confirmed. 2. Heard the submissions of Sri. K. Sreenivas, learned counsel for the appellant/defendant, Sri. A. Sudershan Reddy, learned senior counsel appearing for Sri. M. Srinivas Reddy, learned counsel for the respondent/plaintiff on caveat and perused the record. 3. The appellant herein is the defendant/tenant and the respondent herein is the plaintiff/landlord in the Original Suit. The parties are hereinafter referred to as per their array in the Original Suit. 4. The plaintiff is the absolute owner of piece and parcel of the 4th Mulgi from the left side in Plot No. 51 and 52, H. No. 2-4-136, Near Snehapuri X Roads, Nagole, Ranga Reddy District (hereinafter referred to as ‘suit schedule property’). He filed the subject Original Suit against the defendant for eviction, arrears of rent and mesne profits, contending as follows: “The plaintiff is the absolute owner of the suit schedule property. The defendant is in occupation of the same and running business in the name and style of M/s. Lakshminarsimha Swamy Enterprises. Initially, Mr. Anil Kumar Reddy, brother-in-law of the plaintiff used to run the above business and the same was acquired by the defendant on 17.07.2001. After acquiring the business, the defendant approached the plaintiff along with Anil Kumar Reddy and took the suit schedule property on lease, on a monthly rent of Rs. 1,000/- per month from 01.08.2001 and paid an advance of Rs. 10,000/-. The rent was enhanced from time to time and now the rent is Rs. 5,000/- per month. As per the Rental Agreement, dated 02.06.2005, the lease was for a period of eleven months and tenancy was from month to month. The rental agreement was not registered. 1,000/- per month from 01.08.2001 and paid an advance of Rs. 10,000/-. The rent was enhanced from time to time and now the rent is Rs. 5,000/- per month. As per the Rental Agreement, dated 02.06.2005, the lease was for a period of eleven months and tenancy was from month to month. The rental agreement was not registered. The said rental agreement expired long back and it was not renewed. Since the rental agreement, dated 02.06.2005, was un-registered, lease can be terminated by issuing an eviction notice. In the month of January, 2007, the plaintiff requested the defendant along with other tenants to vacate the suit schedule property on the ground that he requires it for the purpose of establishing pharmaceutical distribution business, as he is a qualified pharmacist, by completely renovating the building and thereby granted six months time to vacate the suit schedule property. In spite of repeated requests for the last one year to vacate the suit schedule property, the defendant has been giving evasive replies and dragging on the issue. Finally, he has to vacate by 30.11.2008 (wrongly typed as 31.11.2008), but he failed to do so. The defendant stopped paying rents of the suit schedule property from the month of May, 2008 to the plaintiff. On demand made by the plaintiff, the defendant stated he is going to vacate the premises and on the date of vacating the premises, he would clear entire dues. The defendant, by suppressing the above facts, filed O.S. No. 1366/2008 on the file of II Additional Junior Civil Judge, Ranga Reddy District at L.B. Nagar, seeking injunction from evicting him from the suit schedule property, with false allegations. The plaintiff got issued statutory legal notice, dated 05.01.2009, to the defendant calling upon him to vacate and handover vacant possession of the suit schedule property by 01.02.2009, failing which, the defendant has to pay mesne profits at Rs. 10,000/- per month. The defendant sent belated reply notice on 30.01.2009 denying the contents of the legal notice and further threatened the plaintiff that he will take recourse of criminal law. In the first week of January, 2009, the defendant sent money order for a sum of Rs. 5,000/- which shows the conduct of the defendant that he wanted to create problems for the plaintiff and do not want to vacate the suit schedule property and squat over the property illegally. In the first week of January, 2009, the defendant sent money order for a sum of Rs. 5,000/- which shows the conduct of the defendant that he wanted to create problems for the plaintiff and do not want to vacate the suit schedule property and squat over the property illegally. Hence, the suit.” 5. The defendant filed written statement contending as follows:- “The averments made in the plaint are false and baseless. It is true that the defendant had acquired the business of his brother-in-law. It is not proper to say that the rental agreement was not registered. The defendant has been regularly paying the rent from the month of May, 2008 and never defaulted in payment of rents. The plaintiff refused to receive the rent from December, 2008 and the same was sent through Money Order, which was refused by him. The defendant has not made any false and frivolous allegations in O.S. No. 1366/2008, as alleged by the plaintiff. It is true that the plaintiff got issued legal notice, dated 05.01.2009, which was properly replied by the counsel for the defendant. The rent was gradually enhanced from Rs. 1,000/- with an enhancement at 10% per annum, as agreed in the rental agreement, dated 02.06.2005 and the present rent is Rs. 1,420/- per month for which, Money Order was sent, which was refused by the plaintiff. The defendant is not liable to pay the mesne profit at Rs. 10,000/- per month as claimed by the plaintiff. There is no cause of action to file the subject suit. Hence the suit is liable to be dismissed with exemplary costs.” 6. Basing on the above rival contentions, the trial Court framed the following issues for trial: (1) Whether the plaintiff is entitled for eviction of the defendant from the suit property and entitled vacant possession of the same as prayed for? (2) Whether the rent claimed by the plaintiff at Rs. 5,000/- per month in respect of suit schedule property is true and correct? (3) Whether the defendant committed default in paying the rent to the plaintiff? (4) Whether the plaintiff is entitled to recover the arrears of rent as prayed for? (5) Whether the plaintiff is entitled to future mesne profits as prayed for? (6) To what relief? 7. During the course of trial, the plaintiff himself was examined as PW-1, one Ch. (3) Whether the defendant committed default in paying the rent to the plaintiff? (4) Whether the plaintiff is entitled to recover the arrears of rent as prayed for? (5) Whether the plaintiff is entitled to future mesne profits as prayed for? (6) To what relief? 7. During the course of trial, the plaintiff himself was examined as PW-1, one Ch. Venkateshwara Rao was examined as PW-2 and Exs.A.1 to A.6 were marked. On behalf of the defendant, the defendant himself was examined as DW-1, one A. Krishna was examined as DW-2 and Exs.B.1 to B.15 were marked. 8. On merits, the trial Court decreed the suit directing the appellant/defendant to vacate and handover vacant possession of the suit schedule property to the respondent/plaintiff within two months from the date of the said judgment and to pay arrears of rent of Rs. 45,000/- to the respondent/plaintiff and granting mesne profits, which shall be determined by filing separate petition by the plaintiff under Order XX Rule 12 of CPC. 9. Aggrieved by the said decision of the trial Court, the defendant preferred an appeal in A.S. No. 151 of 2017 before the first appellate Court. The first appellate Court, after re-appreciating the entire evidence on record, confirmed the judgment and decree, dated 29.04.2017, passed by the trial Court. Aggrieved by the same, the defendant preferred this Second Appeal. 10. The Second Appeal is sought to be admitted on the following substantial questions of law: (i) Whether the Civil Court has got jurisdiction to entertain and try the suit and whether the Rent Control Court only has jurisdiction to try the present case? (ii) Whether the Courts below misread the oral evidence of PW-1 and the terms and conditions of Ex.B.1 Rental Agreement? 11. There cannot be any dispute that, under the amended Section 100 of C.P.C. a party aggrieved by the decree passed by the first appellate Court has no absolute right of appeal. He can neither challenge the decree on a question of fact or on a question of law. The second appeal lies only where the High Court is satisfied that the case involves a substantial question of law. The word ‘substantial’ as qualifying ‘question of law’ means and conveys of having substance, essential, real, of sound worth, important, considerable, fairly arguable. A substantial question of law should directly and substantially affect the rights of the parties. The second appeal lies only where the High Court is satisfied that the case involves a substantial question of law. The word ‘substantial’ as qualifying ‘question of law’ means and conveys of having substance, essential, real, of sound worth, important, considerable, fairly arguable. A substantial question of law should directly and substantially affect the rights of the parties. A question of law can be said to be substantial between the parties, if the decision in appeal turns one way or the other on the particular view of law. But, if the question does not affect the decision, it cannot be said to be substantial question between the parties. Recording a finding without any evidence on record, disregard or non-consideration of relevant or admissible evidence; taking into consideration irrelevant or inadmissible evidence; perverse finding - are some of the questions, which involve substantial questions of law. 12. The learned counsel for the appellant/defendant would contend that both the Courts below misread the evidence of PW-1 with regard to the quantum of rent and erroneously concluded that the rent of the suit schedule property is Rs. 5,000/- per month. Both the Courts below miserably failed to properly appreciate the terms and conditions of Ex.B.1 Rental Agreement, dated 02.06.2005. The defendant has been regularly paying the rent from the month of May, 2008 and did not commit any default in payment of rent. In view of the categorical admission of the plaintiff in his evidence as PW-1 with regard to the quantum of rent and age of the building in which the suit schedule property is situated, only the Rent Control Court has jurisdiction to try the subject matter of the subject suit and not the Civil Court. The lower appellate Court failed to consider the aspect with regard to its inherent lack of jurisdiction to entertain the subject matter of the appeal. The point of jurisdiction, being a legal aspect, can be raised even at the appellate stage and ultimately prayed to set aside the judgment and decree under challenge and allow the second appeal as prayed for. In support of his contentions, learned counsel relied upon the following decisions: (i) State of Rajasthan and Others vs. M/s. Karamchand Thappar, AIR 1965 SC 913 (ii) Badri Prasad and Others vs. Nagrimal and Others, AIR 1959 SC 559 (iii) Hero Vinoth (Minor) vs. Seshammal, (2006) 5 SCC 545 13. In support of his contentions, learned counsel relied upon the following decisions: (i) State of Rajasthan and Others vs. M/s. Karamchand Thappar, AIR 1965 SC 913 (ii) Badri Prasad and Others vs. Nagrimal and Others, AIR 1959 SC 559 (iii) Hero Vinoth (Minor) vs. Seshammal, (2006) 5 SCC 545 13. On the other hand, the learned senior counsel appearing for respondent/plaintiff would contend that both the Courts below rightly concluded that the rent of the suit schedule property is Rs. 5,000/- per month. The defendant ought to have raised the question of jurisdiction at the earliest point of time, i.e., during the course of trial of the subject suit. He did not do so. A party has to take proper pleadings and prove the same by adducing sufficient evidence and no evidence can be permitted to be adduced on an issue, unless factual foundation has been laid in respect of the same. In fact, the defendant earlier filed I.A. No. 793 of 2015 in the subject suit before the trial Court seeking amendment of written statement to the effect that the subject suit is not maintainable before the Civil Court as per Section 32 of the Rent Control Act, since the rent is below Rs. 3,500/- and the building is older than 15 years. On merits, the said application was dismissed by the trial Court. Challenging the same, the defendant filed a revision in C.R.P. No. 145 of 2016 before this Court. The said Civil Revision Petition was also dismissed by this Court. One of the tenant of the petition schedule building (PW-2) categorically deposed that he is paying monthly rent of Rs. 30,000/- to the plaintiff, for the leased portion. This shows the potential value of the locality in which the suit schedule property is situated. Both the Court below appreciated the evidence on record in correct perspective and rightly concluded that the rent of the suit schedule property is Rs. 5,000/- per month. Both the Court below did not commit any error in interpreting the terms and conditions of Ex.B.1-Rental Agreement, dated 02.06.2005. The questions of law raised by the defendant in this appeal cannot be treated as substantial questions of law. They are pure questions of fact and ultimately prayed to sustain the impugned judgment and decree and dismiss the second appeal. Both the Court below did not commit any error in interpreting the terms and conditions of Ex.B.1-Rental Agreement, dated 02.06.2005. The questions of law raised by the defendant in this appeal cannot be treated as substantial questions of law. They are pure questions of fact and ultimately prayed to sustain the impugned judgment and decree and dismiss the second appeal. In support of his contention, learned Senior Counsel relied upon the decisions reported in K.B. Saha and Sons Pvt. Ltd. vs. Development Consultant Limited, (2008) 8 SCC 564 and National Textile Corporation Ltd. vs. Nareshkumar Badrikumar Jagad, (2011) 12 SCC 695 . 14. In view of the above rival contentions, the point that arises for determination in this appeal is as follows: “Whether the judgment and decree, dated 20.12.2019, passed in A.S. No. 151 of 2017, by the VII Additional District Judge, Ranga Reddy District at L.B. Nagar, Hyderabad, is legally sustainable?” POINT: 15. The defendant contended that both the Courts below completely misread the evidence of the plaintiff with regard to the quantum of rent and erroneously concluded that the rent of the suit schedule property is Rs. 5,000/- per month. The plaintiff himself was examined as PW-1. In his examination-in-chief, he deposed that tenancy commenced from 01.08.2001 for a monthly rent of Rs. 1,000/- and the rent is being enhanced from time to time and now the rent of the premises is Rs. 5,000/- per month. He further deposed that the defendant committed default in payment of rent from May, 2008 and that whenever he requested the defendant to vacate the suit schedule property, the defendant promised to vacate the same and on the date of vacating the suit schedule property, he would clear all the dues. In the cross examination of PW-1, he denied the suggestion that the prevailing rent of the suit schedule property is only Rs. 2,000/- but not Rs. 5,000/-. Further to PW-1, nowhere suggested in his cross-examination that the admitted rent of the suit schedule property was only Rs. 1,464/-. Further, PW-1 denied the suggestion that the defendant used to pay rent regularly up to December, 2008. PW-1 further deposed that since the defendant sent lesser amount as rent by way of money order, he refused to receive the same. The plaintiff also got examined PW-2, who is also a tenant of the plaintiff’s building and neighbour of defendant. 1,464/-. Further, PW-1 denied the suggestion that the defendant used to pay rent regularly up to December, 2008. PW-1 further deposed that since the defendant sent lesser amount as rent by way of money order, he refused to receive the same. The plaintiff also got examined PW-2, who is also a tenant of the plaintiff’s building and neighbour of defendant. PW-2 categorically deposed that as per the prevailing rental value, he is paying a monthly rent of Rs. 30,000/- for the leased premises to the plaintiff. Further, admittedly, the defendant had sent a money order for Rs. 5,000/- to the plaintiff in the first week of January, 2009. If really the rent of the suit schedule property was only Rs. 1,464/- as contended by the defendant, the question as to why the defendant sent money order for Rs. 5,000/- to the plaintiff was not properly explained by him. There is no satisfactory evidence on the side of the defendant to hold that the monthly rent of the suit schedule property as on the date of filing of the suit is only Rs. 1,464/- per month but not Rs. 5,000/- per month. Be that as it may, the question as to whether there was any increase in the rent of the suit schedule property is not a fact, which is limited to the personal and exclusive knowledge of the parties alone. It can be proved by any admissible and reliable evidence. That burden has been successfully discharged by the plaintiff by examining himself and PW-2. The defendant could not shake that evidence. The trial Court, on appreciation of oral and documentary evidence on record, rightly concluded that the rent of the suit schedule property as on the date of filing of the subject suit was Rs. 5,000/- per month. The said finding was endorsed by the first appellate Court on re-appreciation of evidence. Hence, this Court, in this second appeal filed under Section 100 of C.P.C. cannot upset that concurrent finding of fact. Be it noted that inadequacy of evidence or a different reading of evidence is not perversity, nor will a wrong finding of fact by itself constitute a question of law. In order to constitute a question of law, the wrong finding should stem out of a complete misreading of evidence or it should be based only on surmises and conjectures, which is not so in the instant case. In order to constitute a question of law, the wrong finding should stem out of a complete misreading of evidence or it should be based only on surmises and conjectures, which is not so in the instant case. 16. The next contention of the defendant is that both the Courts below misread terms and conditions of Ex.B.1-Rental Agreement, dated 02.06.2005. Clauses 3, 10 and 11 of Ex.B.1-Rental Agreement, dated 02.06.2005, read as follows:- “3. The rent for the above said premises is Rs. 1,000 (Rupees one thousand only) towards rent and other amenities per month and rent is payable on or before 5th day of every month and an advance of Rs. 10,000/- paid and refundable at the time of vacation of the premises. 10. This agreement will be for a period of eleven months from the date of execution of this agreement, which can be renewed on mutual consent. 11. That in the event of tenancy continuing beyond the period of eleven months, the tenant has agreed to enhance 10% increase of the rent every year.” 17. Ex.B.1 Rental Agreement, dated 02.06.2005, is an unregistered document. The period mentioned therein in clause no. 10 is only eleven (11) months. The terms and conditions of the said Rental Agreement would not operate beyond the period prescribed therein. This view of this Court is supported by a decision of Hon’ble Apex Court in K.B. Saha and Sons Private Limited case (supra). In other words, as rightly contended by the learned senior counsel appearing for the defendant, Ex.B.1 has no sanctity in the eye of law. Since Ex.B.1 Rental Agreement is neither registered nor renewed, the plaintiff was legally right in issuing statutory legal notice, dated 05.01.2009, calling upon the defendant to vacate the suit schedule property. Under these circumstances, it cannot be said that both the Courts below misread terms and conditions of Ex.B.1-Rental Agreement, dated 02.06.2005. 18. The next contention of the learned counsel for defendant is that the subject suit is not maintainable before the Civil Court as per Section 32 of the Rent Control Act, since the rent of the suit schedule property as on the date of filing of the suit was below Rs. 3,500/- and the building is older than 15 years. Admittedly, this plea was not taken by the defendant in his written statement filed before the trial Court. 3,500/- and the building is older than 15 years. Admittedly, this plea was not taken by the defendant in his written statement filed before the trial Court. In National Textile Corporation Limited case (supra), the Hon’ble Apex Court in Paragraph No. 18, held as follows: “18. In view of the above, the law on the issue stands crystallized to the effect that a party has to take proper pleadings and prove the same by adducing sufficient evidence. No evidence can be permitted to be adduced on an issue, unless factual foundation has been laid down in respect of the same.” 19. It is pertinent to mention here that the defendant initially filed I.A. No. 591 of 2015 in the subject suit, under Order VII Rule 11(d) of CPC seeking rejection of plaint. On merits, that application was dismissed by the trial Court by order, dated 12.08.2015. Subsequent thereto, the defendant filed another I.A. No. 793 of 2015 in the subject suit seeking amendment of written statement to the effect that the subject suit was not maintainable before the Civil Court as per Section 32 of the Rent Control Act, since the rent of the suit schedule property is below Rs. 3,500/- and the building is older than 15 years. On merits, the said application was also dismissed by the trial Court by order, dated 05.10.2015, holding that the defendant has filed the said petition at a belated stage and he failed to plead and prove due diligence as envisaged under the proviso to Order VI Rule 17 of CPC. Challenging the same, the defendant filed a revision in C.R.P. No. 145 of 2016 before this Court and this Court dismissed the said revision holding that though Courts tend to adopt a very liberal approach in allowing the parties to amend their pleadings essentially for the purpose of minimizing the litigation time and also for the purpose of securing an end to the possible litigation between the parties, by filing these kind of applications, the petitioner gains profit as he would continue to be a tenant of the suit schedule premises and that the plaintiff, in that process, would be put to irreparable loss and it cannot be compensated in monetary terms. Being unsuccessful in all his attempts before the trial Court as well as before this Court in revision, the defendant contested the subject suit, which was ultimately decreed in favour of plaintiff. Then the defendant moved the first appellate Court challenging the judgment and decree passed by trial Court. There also the defendant was unsuccessful. Therefore, the defendant is before this Court as appellant. 20. The learned counsel for the defendant vehemently contended that the point of jurisdiction, being a legal aspect, can be raised even at the appellate stage. In support of his contentions, he relied upon three decisions of the Hon’ble Apex Court i.e. State of Rajasthan’s case (supra), Badri Prasad’s case (supra) and Hero Vinoth’s case (supra). 21. I have gone through the aforementioned decisions. In State of Rajasthan’s case (supra) the Hon’ble Apex Court held that a question of law, which can be decided on material on the record of the case can be allowed to be raised at the stage of appeal, by special leave. In Badri Prasad’s case (supra), the Hon’ble Apex Court held that the plea that, by reason of illegality in the contract of the partnership the members thereof can have no remedy against each other, is a plea which raises a pure question of law, not requiring the investigation of any facts and hence, can be raised in the Supreme Court appeal for the first time. In Hero Vinoth’s case (supra) the Hon’ble Apex Court had drawn a distinction between ‘mere question of law’ and a ‘substantial question of fact’ and held that a substantial question of law will also arise in a contrary situation, where the legal position is clear, either on account of express provisions of law of binding precedents, but the Court below has decided the matter, either ignoring or acting contrary to such legal principle and that in the second type of cases, the substantial question of law arises not because the law is still debatable, but because the decision rendered on a material question, violates the settled position of law. There cannot be any dispute with regard to the legal position decided by the Hon’ble Apex Court in the aforementioned decisions. There cannot be any dispute with regard to the legal position decided by the Hon’ble Apex Court in the aforementioned decisions. But in the instant case, the evidence of the plaintiff was unshaken and both the Courts below, on appreciation of evidence on record, recorded a concurrent finding of fact that the rent of the suit schedule property as on the date of filing of the suit was Rs. 5,000/- and not Rs. 1,464/- which cannot be disturbed in a second appeal. Thus, the aforementioned decisions relied by the learned counsel for the defendant are distinguishable from the facts and circumstances of the case on hand. 22. Moreover, a plain reading of the questions sought to be raised in this appeal as substantial questions of law are pure questions of fact, which cannot be dealt with in this appeal filed under Section 100 of C.P.C. Where the lower appellate court had exercised its discretion in a judicial manner, it cannot be termed to be an error, either of law or of procedure, requiring interference in a Second Appeal. The findings of the lower appellate Court are not perverse. There is nothing to take a different view. The lower appellate Court has neither overlooked the admissible evidence nor acted upon inadmissible evidence. After careful examination of the pleadings, evidence and the contentions, this Court finds that no question of law, much less substantial question of law, is involved in this Second Appeal. The appeal is devoid of merit and is liable to be dismissed. 23. In the result, the Second Appeal is dismissed. No costs. 24. Miscellaneous Petitions, if any, pending in this Second Appeal, shall stand closed.