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2020 DIGILAW 629 (AP)

Potru Edukondalu v. Narayanam Umadevi

2020-09-30

BATTU DEVANAND

body2020
JUDGMENT Battu Devanand, J. - This Second Appeal is filed against the decree and judgment, dated 30.06.2020 in A.S.No.1 of 2017 on the file of the XI Additional District Judge, Tenali in which the decree and judgment, dated 21.10.2016 in O.S.No.42 of 2013 on the file of the Additional Senior Civil Judge, Tenali was confirmed. 2. The parties hereinafter are referred to as arrayed before the trial Court for the sake of convenience in this Appeal. 3. As per the averments of the plaint, the plaintiff is absolute owner of the plaint schedule property. The plaintiff let out the suit schedule premises to the defendant for three years from 01.01.2004 and executed a lease deed. Initially, the monthly rent was Rs.3,000/- and the same was extended from time to time by executing lease deeds. About one year back the husband of the plaintiff died and the plaintiff demanded the defendant to vacate the delivery possession of the property. The plaintiff got issued a legal notice dated 11.12.2012 demanding the defendant to vacate the schedule premises and the defendant got issued a reply on 08.01.2013 with false averments. Hence, the plaintiff filed the suit for eviction of the defendant, recovery of possession of the schedule property and for damages. 4. The defendant filed written statement denying the averments made in the plaint and contended that the rent was enhanced to Rs.5,500/- and he is paying rents regularly. The lease period is extended from 01.01.2012 to 31.12.2014 and the plaintiff and her sons postponed to issue receipt for the rent paid by him. The defendant filed a suit in O.S.No.474 of 2012 on the file of the I Additional Junior Civil Judge, Tenali, for permanent injunction. The quit notice is not valid under law and the suit is not maintainable. The defendant is a statutory tenant and paying rents regularly. Therefore, the defendant prays to dismiss the suit with costs. 5. On the basis of the pleadings, the trial Court framed the following issues:- 1) Whether the defendant is statutory tenant of schedule property? 2) Whether the plaintiff is entitled to seek for eviction and damages? 3) If so, to what relief? 6. During the course of trial, on behalf of the plaintiff, PW.1 and PW.2 were examined and Ex.A.1 to Ex.A.7 were marked. On behalf of the defendant, D.W.1 and D.W.2 were examined and Ex.B.1 to Ex.B.15 were marked. 7. 2) Whether the plaintiff is entitled to seek for eviction and damages? 3) If so, to what relief? 6. During the course of trial, on behalf of the plaintiff, PW.1 and PW.2 were examined and Ex.A.1 to Ex.A.7 were marked. On behalf of the defendant, D.W.1 and D.W.2 were examined and Ex.B.1 to Ex.B.15 were marked. 7. The defendant filed a suit in O.S.No.474 of 2012 on the file of the I Additional Junior Civil Judge, Tenali, for permanent injunction. The said suit was clubbed with the suit filed by the plaintiff in O.S.No.42 of 2013 and common evidence was recorded. 8. After hearing both sides and on appreciation of oral and documentary evidence, the learned Junior Civil Judge came to the conclusion that the lease period was expired by 31.12.2014 and the present rent is Rs.5,500/- per month. By observing the same, the suit of the plaintiff is for eviction was decreed, directing the defendant to deliver possession of the property within three months. The suit for damages was dismissed. The suit of the defendant, for permanent injunction was dismissed with costs. 9. Aggrieved by the said decree and judgment of the trial Court, the defendant in O.S.No.42 of 2013 was preferred the appeal in A.S.No.1 of 2017 before the First Appellate Court. 10. The First Appellate Court having considered the contentions of both sides and perusing the evidence on record and following the law laid down by the Hon'ble Apex Court and Hon'ble High Courts on this aspect, dismissed the appeal with costs preferred by the defendant against decree and judgment in O.S.No.42 of 2013 on the file of the I Additional Junior Civil Judge, Tenali by confirming the said decree and judgment. 11. Against the said decree and judgment, the defendant filed the Second Appeal raising the following substantial questions of law: (i) Whether in the facts and circumstances of the case, the appellate Court below is right in directing the eviction of the appellant, though the appellant is continuing in the demised premises with the consent of the landlord paying the agreed rent regularly as tenant hold over as defined under Section 116 of Transfer of Property Act? (ii) Whether in the facts and circumstances of the case, the finding of the Courts below are not perverse for not granting the decree in favour of the appellant for the advance amount of Rs.2,00,000/-, though it was specifically admitted by the respondent and such admitted facts need not be proved under Section 58 of Evidence Act? (iii) Whether in the facts and circumstances of the case, the Courts below are justified in relying upon the quit notice dated 11.12.2012 as the said notice is neither tenable nor enforceable in law and the same is not in accordance with Section 106 of Transfer of Property Act? (iv) Whether in the facts and circumstances of the case, the suit filed by the respondent for eviction can be maintained in law before the civil Court since the rent fixed under Ex.A.3 lease agreement is only Rs.4,300/- and the lis-lies before the Rent Controller under A.P. Buildings (Lease, Rent and Eviction Control Act, 1960)? (v) Whether in the facts and circumstances of the case, the judgment and decree of First Appellate Court is legally sustainable under law since no points for consideration as required under Order 41 Rule 31 of Code of Civil Procedure and Order 20 Rules 4 and 5 of Code of Civil Procedure are framed? (vi) Whether in the facts and circumstances of the case, the judgment and decree of the First Appellate Court is legally sustainable in law as the parameters for deciding the First Appeal as required under Section 96 of Code of Civil Procedure have not been followed? 12. Heard Sri Venkateswarlu Chakkilam, learned counsel for the appellant and M/s. Nimmagadda Revathi, learned counsel for the respondent. 13. During the course of hearing, the learned counsel for the appellant/defendant requested six months time to vacate the schedule property premises on condition of refund of advance amount of Rs.2,00,000/- (Rupees two lakh only) paid by him to the plaintiff. Learned counsel for the plaintiff/respondent also agreed to refund the advance amount of Rs.2,00,000/- to the appellant/defendant and requested to grant three months time only to vacate the schedule premises by the appellant/ defendant. 14. Learned counsel for the plaintiff/respondent also agreed to refund the advance amount of Rs.2,00,000/- to the appellant/defendant and requested to grant three months time only to vacate the schedule premises by the appellant/ defendant. 14. Having heard the submissions of the learned counsel appearing for both sides, this Court is of the opinion that the trial Court and as well as the First Appellate Court gave findings in favour of the plaintiff on appreciation of the entire evidence available on record. In such view of the matter, this Court is not inclined to interfere into the concurrent findings of the both Courts below and as such the present Second Appeal is dismissed. There is no order as to costs. 15. However, in the light of the submissions made by the both counsel and in view of the fact that the schedule property premises is meant for commercial purpose, (i) the appellant/ defendant is directed to file an undertaking in E.P.No.59 of 2020 in O.S.No.42 of 2013 on the file of I Additional Junior Civil Judge, Tenali within one week agreeing that he shall vacate the schedule premises within a period of four (4) months from today. (ii) The appellant/defendant shall pay rents regularly to the plaintiff/respondent for these four (4) months. (iii) The plaintiff/respondent is directed to refund the amount of Rs.2,00,000/- (Rupees two lakh only) which was paid by the appellant/defendant as advance within one week prior to the completion of four (4) months period as undertaking given by the appellant/defendant to vacate the schedule premises. (iv) If the appellant/defendant failed to file an undertaking within the stipulated time as directed above, the plaintiff/ respondent is entitled to proceed in accordance with law. As a sequel, miscellaneous petitions, if any, pending in this Appeal shall stand closed.