Medepalli Madhusudhana Rao v. Patibanda Venkata Subba Rao
2023-06-16
V.R.K.KRUPA SAGAR
body2023
DigiLaw.ai
JUDGMENT : A dispute between tenant and a landlord is involved in this Second Appeal preferred under Section 100 CPC by the tenant and respondent is the landlord. 2. Landlord filed O.S.No.143 of 2013 before learned I Additional Senior Civil Judge, Guntur seeking for eviction of defendant/tenant from the plaint schedule property and for delivery of vacant possession of this property to the plaintiff with a direction to the defendant/tenant to pay Rs.1,000/- per day towards damages for use and occupation from the date of suit till the date of eviction and for costs and such other reliefs. After due trial, the suit was dismissed by judgment dated 10.12.2015. 3. Plaintiff/landlord preferred A.S.No.117 of 2016. This was heard by learned XII Additional District Judge-Cum-Family Court, Guntur and after considering the submissions on both sides and on considering the material on record, the learned first appellate Court found merit in the appeal and as a consequence, it set aside the judgment of the trial Court and granted the relief of eviction and recovery of possession but refused to grant the damages prayed for. It granted two months time to the tenant to vacate the premises. 4. It is against that judgment of the learned first appellate Court, the tenant has come up with this Second Appeal. 5. The Second Appeal is not yet admitted and it is heard before admission. In the memorandum of grounds of appeal, the tenant has raised the following points stating that they are the substantial questions of law involved in this Second Appeal. 1. Whether the findings of the appellate Court is perverse and the judgment is based on the sound principles of law and the evidence has been properly considered? 2. Whether the appellate Court properly considered the findings of the trial Court while allowing the appeal by reversing the well considered judgment of the trial Court? 3. Whether the rent mentioned in the lease deed dated bearing No.7576/2012, dated 29.06.2012 for Rs.12,250/- shall be paid as the respondent failed to reconstruct or renovate the old building as per the above lease deed? 4. Can the appellate Court allow the appeal in the absence of proper evidence? 5. Can the appellate Court set aside the filings of the trial Court without assigning proper and cogent reasons? 6.
4. Can the appellate Court allow the appeal in the absence of proper evidence? 5. Can the appellate Court set aside the filings of the trial Court without assigning proper and cogent reasons? 6. Since a learned Judge of this Court on 08.06.2018 ordered notices to respondents before admission, appearance for respondent/landlord was made and counsel on both sides argued the matter. 7. It has to be kept in mind that the right of appeal is neither a natural nor an inherent right attached to the litigation. It is regulated in accordance with law. A Second Appeal preferred under Section 100 CPC could be admitted only when the appellant satisfies this Court that substantial question of law between the parties arise in this case. A proper test for determining whether a litigation has shown to the court a substantial question of law has been laid down by the Hon’ble Supreme Court of India in Chunilal V. Mehta and Sons, Ltd v. Century Spinning and Manufacturing Company, Ltd, 1962 AIR SC 1314. Their lordships held that a proper test for determining whether a question of law raised in the case is substantial would be whether it is of general public importance or whether it directly and substantial affects the rights of the parties and if so whether it is either an open question in the sense that it is not finally settled by the superior Courts or is not free from difficulty or cause for discussion of alternative views. If the question is settled by the highest Court or the general principles to be applied in determining the question are well settled and there is a mere question of applying those principles or that the plea raised is palpably absurd, the question would not be a substantial question of law. In Boodireddy Chandraiah V. Arigela Laxmi, 2007 (8) SCC 155 , the Hon’ble Supreme Court of India stated that it is not within the domain of the High Court to investigate the grounds on which the findings were arrived at, by the last Court of fact namely the first appellate Court. In a case where from a given set of circumstances, two inferences of fact are possible, one drawn by the lower appellate Court will not be interfered by the High Court in Second Appeal. Adopting any other approach is not permissible.
In a case where from a given set of circumstances, two inferences of fact are possible, one drawn by the lower appellate Court will not be interfered by the High Court in Second Appeal. Adopting any other approach is not permissible. Where the facts required for a point of law have not been pleaded, a litigant should not be allowed to raise that question as a substantial question of law in Second Appeal. The mere appreciation of facts, the documentary evidence or the meaning of entries and the contents of the documents cannot be held to be raising a substantial question of law. 8. The tenant having chosen to invoke the jurisdiction of this Court under Section 100 CPC, it is for him to meet the above principles and satisfy the Court whether there exists any substantial question of law. 9. Before adverting to the grounds urged in this appeal, this case being one between a tenant and a landlord, a few primary principles governing the subject matter dispute may be noticed here. Section 111 of the Transfer of property Act, 1882 provides that a lease of immovable property determines by afflux of time limited thereby or on the expiration of a notice to determine the lease, or to quit, or of a intention to quit, the property leased, duly given by one party to the other. Section 108(B)(q) of the Transfer of property Act, 1882 also provides that on the determination of the lease, the lessee is bound to put the lessor into possession of the property. Section 106 of the Transfer of property Act, 1882 provides that lease of immovable property for purposes other than agriculture shall be deemed to be a lease from month to month and it could be terminated by either of the parties by 15 days notice. It further provides that merely because the period mentioned in the notice falls short of 15 days, the suit is not invalid and the notice is not invalid, if the suit is filed after the expiry of 15 days period. It further provides that these principles are subject to any other terms in case there is a contract between the parties. 10.
It further provides that these principles are subject to any other terms in case there is a contract between the parties. 10. Before the trial Court, the pleaded case of the plaintiff is that the plaint schedule referred shop situate in Arundalpet locality of Guntur Municipality and it belongs to plaintiff and his family and the defendant has been a tenant of this premises. Other than the plain schedule shop there are other shops in the building where some other tenants are there. That the entire building became old and the plaintiff intended to demolish it and reconstruct the building. It is in that regard, plaintiff asked the defendant to vacate the premises and the defendant agreed to vacate the premises. That the defendant agreed to vacate the premises provided a fresh lease deed is executed between the parties for a period of three years. It was agreed between the parties that within three months, the plaintiff has to reconstruct the building and then give possession of the shop to the defendant. While the existing rent was Rs.8,500/- per month, under the terms of the fresh lease deed, it would be raised to 12,250/- per month. A registered lease deed dated 29.06.2012 was entered into between them. The new lease would commence from 01.09.2012 and would terminate by 31.08.2015. Subsequently, as the other tenants refused to vacate the building, plaintiff could not reconstruct the building. However, the defendant who vacated the premises forcibly entered into the premises by breaking open the locks and occupied the premises and in fact he occupied more extent than that was mentioned in the lease deed. As he failed to pay the rents, plaintiff got issued notices more than one terminating the lease but the defendant did not vacate. It is in these circumstances, suit was laid for eviction, recovery of possession and damages. Defendant/tenant resisted the suit. He admits the jural relationship between the parties and the earlier tenancy between the parties and the execution of the fresh lease deed and admits the failure on part of the plaintiff in reconstructing the building. He denied to have vacated the premises at any point of time and denied to have gain a forcible entry into it and denied to have occupied more extent of property.
He denied to have vacated the premises at any point of time and denied to have gain a forcible entry into it and denied to have occupied more extent of property. He pleaded about forwarding of rents by way of demand drafts etc., and acceptance of it and encashment of it by the plaintiff. He admitted about receipt of notices by him. Finally, he sought for dismissal of the suit. Learned trial Court settled the following issues : 1. Whether the plaintiff is entitled for eviction of the defendant and to vacate the Plaint Schedule Property and deliver vacant possession of the same to the plaintiff as prayed for? 2. Whether the Plaintiff is entitled for Rs.1000/- per day towards damages for use and occupation from the date of suit till the date of eviction from the Plaint Schedule Property as prayed for? 3. To what relief? 11. During the course of evidence, plaintiff testified as PW.1 and got exhibited Exs.A1 to A9. Defendant testified as DW.1 and got examined DW.2. He did not exhibit any documents. On appreciation of the entire evidence on record, the learned trial Court recorded certain findings at Paragraph No.17. It stated that from the facts on record, the lease was found to be one from month to month terminable by 15 days quit notice and in the case at hand there was a written notice issued by the landlord to the tenant and this notice under Section 106 of the Transfer of property Act,1882 indicated formal declaration of landlord’s intention to end the lease and such a notice need not give any particular reason justifying the termination of lease. It also on facts recorded that there was a clear failure to payment of rents on the part of the defendant/tenant. At paragraph No.19, it held that the failure to pay rent was found not a ‘willful default’ and therefore eviction could not be ordered. It is with these findings, the learned trial Court dismissed the suit. When the matter was carried to the learned first appellate Court, it settled the following points for its consideration : 1. Whether the plaintiff is entitled for eviction of defendant from the plaint schedule property and for delivery of vacant possession? 2. Whether the plaintiff is entitled for damages @ 1,000/- per day starting from the date of filing of the suit till the date of eviction? 3.
Whether the plaintiff is entitled for eviction of defendant from the plaint schedule property and for delivery of vacant possession? 2. Whether the plaintiff is entitled for damages @ 1,000/- per day starting from the date of filing of the suit till the date of eviction? 3. Whether the judgment and decree of the trial Court is liable to be set aside? 4. To what relief? 12. Learned first appellate Court considered the evidence of PW.1 and considered that the landlord had given Ex.A1 notice dated 28.09.2012 and thereafter Ex.A3 notice dated 11.12.2012 and thereafter Ex.A5 notice dated 18.03.2012. It held that under Ex.A5 notice, the lease between the parties was terminated and the tenant was directed to vacate the premises by 01.01.2013. Be it noted, the plaint in O.S.No.143 of 2013 was filed on 28.01.2013(as could be seen from the decree of the learned trial Court). It recorded its observations that tenant/DW.1 admitted receipt of notice and during his evidence he also expressed his willingness to vacate the premises. It further observed that the tenant having taken a plea that he has been paying the rents and after sometime he filed a suit for permanent injunction and was depositing rents in that suit, but he failed to show any proof about deposit of such rents. It recorded that despite termination of tenancy defendant did not vacate the premises. It also recorded at Paragraph No.13 in A.S.No.117 of 2016 that the landlord filed I.A.No.496 of 2016 under Order XV(A) of CPC and it found that during the course of pendency of proceedings as the tenant failed to deposit rents and failed to show any proof that he deposited rents, law mandated to strike off his defence also. With all these findings, it finally held that the landlord made out a case for eviction but the trial Court erred in refusing it and therefore, it granted the primary relief of eviction and recovery of possession. Coming to Rs.1,000/- claim towards damages for use and occupation for each day, it upheld the judgment of the trial Court stating that landlord failed to indicate any facts or law to measure such entitlement of him for such damages. Therefore, it agreed with the trial Court and refused to grant damages. 13.
Coming to Rs.1,000/- claim towards damages for use and occupation for each day, it upheld the judgment of the trial Court stating that landlord failed to indicate any facts or law to measure such entitlement of him for such damages. Therefore, it agreed with the trial Court and refused to grant damages. 13. It is in the backdrop of these facts and circumstances and findings of the learned first appellate Court, the grounds urged in this Second Appeal are to be scrutinised to find out whether the appellant has shown any substantial question of law. His contention is that the judgment of the learned first appellate Court is perverse and it did not consider the findings of the trial Court properly and against law it allowed the first appeal and failed to assign reasons for setting aside the judgment of the trial Court. Having considered these contentions and having verified the entire record, it has to be stated that the entire oral and documentary evidence adduced by both sides was considered afresh by the learned first appellate Court. It did not omit to consider any evidence that was available. It did not consider anything that was not a part of the evidence. It considered the pleadings on both sides and evidence on both sides. It recorded the admissions made by both sides during the course of cross-examination of witnesses. It properly considered the effect of that evidence. Its findings about issuance of quit notice and the validity of the quit notice and the failure of the tenant in vacating the premises are not shown to this Court as erroneous in the eye of law. There is absolutely no perversity in the impugned judgment of the learned first appellate Court. At any rate, the grounds urged do not disclose a substantial question of law between parties. 14. The other ground urged is about the new registered lease deed dated 29.06.2012 and the new amount of rent of Rs.12,250/- and about landlord’s failure to reconstruct the building. It is there in the judgment of the trial Court and it is visible from the record that the alleged registered lease deed between the parties was not exhibited at any stage of the litigation between the parties before both the Courts below. Therefore, no particular finding is really required to be recorded based on any terms mentioned in such undisclosed document.
Therefore, no particular finding is really required to be recorded based on any terms mentioned in such undisclosed document. It has to be stated that prior to this alleged registered lease deed, the plain schedule property was in the occupation of tenant/appellant herein. According to both sides, it was a oral lease. The new lease deed dated 29.06.2012 did not come into effect because even according to PW.1/landlord, he did not comply with the terms contained in that document such as removal of the building and reconstruction of the building and reinduction of the appellant as a tenant. In that view of the matter, the question of payment or otherwise of new lease amount etc., are irrelevant for consideration. It is rightly pointed out by first appellate Court that on accepting the evidence of tenant that the tenant continued to hold the possession of the property under the earlier existing oral lease and despite a valid quit notice under Section 106 of the Transfer of property Act,1882 being issued by the landlord and was received by the tenant/appellant, it was his duty to vacate the premises and he failed to vacate it. Therefore, what happened to the fresh lease deed did not merit for any further consideration by the Court below. In that view of the matter, the point urged is irrelevant for consideration and at any rate it has not raised any substantial question of law between the parties. 15. For the reasons mentioned above, this Court records that the appellant failed to show and satisfy this Court about existence of any substantial question of law arising between the parties and therefore this Second Appeal cannot be admitted. 16. In the result, this Second Appeal is dismissed at the stage of admission and as a consequence judgment dated 03.11.2017 of learned family Court-cum-XII Additional District Judge, Guntur in A.S.No.117 of 2016 is confirmed as such the present appellant/tenant shall vacate the suit disputed premises and put the respondent/landlord in possession of it on or before 31.07.2023. There shall be no order as to costs. As a sequel, miscellaneous applications pending, if any, shall stand closed.