Research › Search › Judgment

Telangana High Court · body

2025 DIGILAW 124 (TS)

Mohd Anwar v. Nusrath Fatima

2025-03-17

LAXMI NARAYANA ALISHETTY

body2025
JUDGMENT : Laxmi Narayana Alishetty, J. The Second Appeal is filed against the judgment and decree dated 02.12.2024 passed in A.S.No.156 of 2024 on the file of II Additional Chief Judge, City Civil Court, Hyderabad, whereby and whereunder the said appeal was dismissed confirming the order decree dated 24.04.2024 passed in I.A.No.824 of 2023 in O.S.No.1135 of 2022 on the file of III Junior Civil Judge, City Civil Court, Hyderabad. 2. Heard Sri Mohd. Mazhar Ali, learned counsel for the appellant and Sri Mohd Abdul Raheem Khan, respondent/party-in-person. 3. Appellant herein is defendant No.2 and respondent Nos.1 to 6 are plaintiffs and respondent No.7 is defendant No.1 in the suit. For convenience, the parties hereinafter referred to as they were arrayed in the suit before the trial Court. 4. Brief facts of the case are that the plaintiffs filed a suit for eviction against the defendants vide O.S.No.1135 of 2022 on the file of III Junior Civil Judge, City Civil Court, Hyderabad. The plaintiffs are owners of H.No.11-5-117/B (old H.No.11-5-117), Red Hills, Hyderabad, consisting Ground + two upper floors (‘hereinafter referred to as ‘suit schedule property’). 5. It is contended that the plaintiffs leased the suit schedule property for 15 months and the monthly rent was agreed for an amount of Rs.40,000/- for a period of 6 months and thereafter, Rs.50,000/- from 01.09.2007, subject to enhancement of 5% every year. An agreement of lease, dated 27.12.2006 vide document bearing No.81 of 2007 was entered between the parties. Even after expiry of the lease period, the defendants continued to occupy the suit schedule property and were irregular in payment of monthly rents. It is further contended that the defendants were running a lodge under the name and style of “HOTEL R INN” in the suit schedule property and due to Covid pandemic, the defendants were not able to run their business. The plaintiffs, at request of the defendants, graciously waived off the arrears of rent amounting to a sum of Rs.3,50,000/- and also reduced the monthly rent from Rs.50,000/- to Rs.40,000/- . Even then, the defendants defaulted in payment of monthly rents to the plaintiffs and presently owe the plaintiffs a total rental arrears amounting to Rs.4,76,000/-. Since the defendants continued to default in payment, the plaintiffs on 11.02.2022, issued quit notice. The same was received by the defendants on 12.02.2022. Even then, the defendants defaulted in payment of monthly rents to the plaintiffs and presently owe the plaintiffs a total rental arrears amounting to Rs.4,76,000/-. Since the defendants continued to default in payment, the plaintiffs on 11.02.2022, issued quit notice. The same was received by the defendants on 12.02.2022. In spite of receiving the said notice, the defendants did not give any reply to the said notice and only made payment of arrears of rent of Rs.1,00,000/- out of total outstanding rental arrears of Rs.5,36,000/-. Thereafter, suit was filed for eviction. 6. Defendant No.2 filed written statement denying the allegations/averments made in the plaint. 7. While the suit was pending for adjudication, the plaintiffs filed an application under Order XII Rule 6 of CPC vide I.A.No.824 of 2023 in O.S.No.1135 of 2022 to pass a judgment and decree of eviction against the defendants, in view of admission of the defendants in the written statement. It was specifically contented that the defendants have agreed jural relationship and also non- payment of the rent and issuance of notice by the plaintiffs. Therefore, it is prayed to allow the application and pass decree in terms of Order XII Rule 6 of CPC. 8. Defendants filed counter affidavit, denying issuance of quit notice and further contended that there are legal issues to be adjudicated and therefore, the application is misconceived and liable to be dismissed. 9. During enquiry in I.A.No.824 of 2023, on behalf of the plaintiffs Ex.P1 and Ex.P2 were marked and on behalf of the respondents Ex.R1 was marked. 10. The trial Court on due consideration of the contentions of both sides and the material placed on record, allowed the application vide order, dated 24.04.2024 insofar as the relief of eviction is concerned and the defendants are directed to vacate and hand over the possession of the suit schedule property within a period of two (02) months from the date of the order. However, other two reliefs for recovery of arrears of rent and mesne profits would be decided after trial and in accordance with law. 11. However, other two reliefs for recovery of arrears of rent and mesne profits would be decided after trial and in accordance with law. 11. The trial Court, while allowing the application, specifically observed as under:- “In the present case, the defendant except disputing the quantum of rent did not raise any tenable plea warranting the trial of the matter nor did he put forth any plea which entitles him to continue to be in possession of the suit premises even after the termination of the tenancy by the landlords. In these circumstances, this Court is of the opinion that in the present suit there is no triable issue. Therefore, in my opinion, the said judgment is not applicable to the facts of the case”. 12. Aggrieved by the said order, dated 24.04.2024, the defendants preferred appeal vide A.S.No.156 of 2024 on the file of the Additional Chief Judge, City Civil Court, Hyderabad. The appellate Court basing on the pleading has framed the following issues for consideration:- “19. Points No.1 to 3:- 1) Whether the pleadings of the appellant in the written statement comes under the admissions as defined under the admissions as defined under Section 17 of the Indian Evidence Act? 2) Whether in the present case the pleadings of defendants in the written statement are sufficient pass a decree under Order XII Rule 6 of CPC, and whether trail Court can pass a decree in part basing on the pleadings in the written statement, which are in the form of admissions or not? 3) Whether there are any triable issues in the main suit and whether passing of the decree under Order XII Rule 6 of CPC is proper or not in the present set of circumstances”? 13. The appellate Court, on due consideration of the pleadings and the material placed on record, dismissed the appeal vide order, dated 02.12.2024 confirming the order passed by the trial Court, the appellate Court specifically observed as under:- “In the present case, the other contention of the appellant is that said decree is inexecutable, since ground floor is in occupation of third parties, who are not parties. This Court also perused the impugned order, wherein the Learned Trail Judge at para No.27 not accepted said argument of appellant by stating that appellant not raised said plea in the pleadings and for the first time it was raised during course of argument, without there being a foundation in the pleadings and what is not pleaded cannot be argued. This Court is of the opinion that said finding is based on the well settled Principle of Law. Furthermore, in the plaint there is description of the property and it also contains the schedule of the property and the schedule mentioned in Ex.P1 and plaint is one and the same. In the case on hand, there is no dispute with regard to existence of some of the mulgies in the ground floor and said fact is further corroborated by Ex. R1 photographs filed by appellant and which are in possession of third parties and said tenants are not parties to the present main suit as admitted by respondents/plaintiffs. The plaint schedule and Ex.P1 contains the description of the property and petition was filed to evict the appellant/defendant No.2 from the property covered under Ex.P1. Therefore the contention of the appellant that subject matter of the suit is not described in accordance with or as required under Order VII Rule 3 cannot be accepted”. 14. Learned counsel for the appellant contended that the trial Court as well as the appellate Court allowed the application without properly appreciating the evidence and the material placed on record. It is further contended that unless there is a specific contention on the part of the appellant/defendant, the Court cannot accept the decree in the present case. Both the Courts have come to an erroneous conclusion that there is an admission on the part of the appellant/defendant and failed to consider that there are triable issues to be adjudicated by the trial Court. Therefore, the impugned order is liable to be set aside. 15. Per Contra, learned counsel for the respondent contended that the trial Court as well as First Appellate Court have rightly allowed the application filed by the respondent by duly considering all the aspects and that the appeal is devoid of any merit and hence, liable to dismissed. Therefore, the impugned order is liable to be set aside. 15. Per Contra, learned counsel for the respondent contended that the trial Court as well as First Appellate Court have rightly allowed the application filed by the respondent by duly considering all the aspects and that the appeal is devoid of any merit and hence, liable to dismissed. Learned counsel for the respondent specifically drawn the attention of this Court to the following observations of the First Appellate Court:- “The learned counsel for respondents, who are plaintiffs argued that appellant who is the defendant No.2 in the main suit filed the written statement and admitted jural relationship and also non-payment of the rent and also issuance of the notice by them under Exhibit P2 and receiving the same by appellant, therefore, the said pleadings comes under the definition of admission, which are sufficient to conclude and pass a decree under Order XII Rule 6 CPC and there is no bar to pass a decree basing on the admissions of the parties to the proceedings. In the present case also, it is established that appellant having obtained suit premises to run a lodge and became a defaulter and morally and legally he has no right to continue over the suit schedule property, even then, he is continuing over the suit schedule property, hence not entitled to seek equity. Hence, this Court do not find any mistake committed by the learned Trial Court while relying on the said judgment and giving a finding in favour of the respondents. Therefore, this Court do not find any reasons to interfere in the findings of the learned trial judge and no need to interfere in it”. 16. Perusal of the order of the trial Court and the Judgment of the appellate Court clearly shows that both the Courts came to a categorical conclusion that the appellant/defendant had admitted jural relationship, issuance of quit notice and therefore, the suit cannot be kept pending without any issue to be decided. So far as eviction is concerned, all the contentions and grounds raised by the appellant before the trial Court as well as the appellate Court were considered. 17. Perusal of the written statement filed by the defendants clearly shows that at para No.4, the defendants have agreed jural relationship with the landlord and the tenant. So far as eviction is concerned, all the contentions and grounds raised by the appellant before the trial Court as well as the appellate Court were considered. 17. Perusal of the written statement filed by the defendants clearly shows that at para No.4, the defendants have agreed jural relationship with the landlord and the tenant. The same is extracted below:- “Regarding reply to para 1 of the Plaint, it is true that the Defendants are tenants in the Suit schedule of property by paying regular rents as per the terms of lease deed right from the inception of the suit premises, by running a lodge under the name and style of HOTEL R INN, in the suit property: Initially the defendants are jointly conducted Business, recently as per the understandings the Defendant No.1 retired from the said Business and the Defendant No.2 alone conducting the said Business. It is denied that the Defendants are enjoying the suit property without consent of the Plaintiff, and without paying the monthly rents to the Plaintiff for the suit premises, it is further denied that the Plaintiff is entitle for mesne profits. In fact the rents were paid up to March 2020 regularly, after March 2020 the COVID 19 Pandemic was increased and the Hotel Business was almost closed down due to the above said reason the defendants could not run the business and could not paid the regular rents to the suit premises, as such the Defendants requested the Plaintiff, and the Plaintiff kindly accepted to waive of the Rentals for the COVID-19 period, and asked the defendants to regularize the rentals as and when the business flourished as usual and come to normal. As such the allegation of the Plaintiff that the question of payment of due rents of Rs.5,36,000/ doesn't arise at all, the other allegation mentioned in the para are denied in toto”. 18. Even in para 5 of the written statement, the appellant/defendant admitted the lease. In para 6, it is admitted that in view of Covid-19, there was no business and it was almost closed down and also admitted that after receipt of the legal notice, the defendants approached the plaintiff over telephone and questioned the issuance of legal notice. 18. Even in para 5 of the written statement, the appellant/defendant admitted the lease. In para 6, it is admitted that in view of Covid-19, there was no business and it was almost closed down and also admitted that after receipt of the legal notice, the defendants approached the plaintiff over telephone and questioned the issuance of legal notice. It is also appropriate to refer para 7, wherein the defendant contended as under:- “Regarding reply to other paras of the Plaint the Defendants is denying that this Defendant is due an amount of Rs.4,76,000/- to the Plaintiff as arrears of rents, in fact as staled supra Defendants settled the due amount to a tune of Rs.1,00,000/- and paid the same to the Plaintiff as full and final settlement towards the arrears of rents up to February 2022, which is admitted by the plaintiff, and the Defendants is ready to pay the due rents to the plaintiff from March 2022 onwards if the Plaintiff is ready to accepted the same. @ 20,000/- pm as admitted by the Plaintiff, as such the other allegations mentioned in the petition are denied in toto. It is also denied that the plaintiff is entitle mesne profits @ 80,000/-pm, from the defendant as the said suit premises is located in prime area, it is submit that the lease tenure is extended orally by the Plaintiff after settlement of arrears of rents in full and final between the Plaintiff and Defendants, as such the question of claiming mesne profits doesn't arise at all. As such the other allegation alleged by the plaintiff is denied in toto”. 19. In view of above discussion, and specific admissions of appellant/defendant in written statement, this Court is of the considered opinion that the appellants failed to raise any substantial question of law to be decided by this Court in this Second Appeal. In fact, all the grounds raised in this appeal are factual in nature and do not qualify as the substantial questions of law in terms of Section 100 C.P.C. 20. It is well settled principle by a catena of decisions of the Apex Court that in the Second Appeal filed under Section 100 C.P.C., this Court cannot interfere with the concurrent findings on facts arrived at by the Courts below, which are based on proper appreciation of the oral and documentary evidence on record. 21. It is well settled principle by a catena of decisions of the Apex Court that in the Second Appeal filed under Section 100 C.P.C., this Court cannot interfere with the concurrent findings on facts arrived at by the Courts below, which are based on proper appreciation of the oral and documentary evidence on record. 21. Further, in Gurdev Kaur v. Kaki,, [ (2007) 1 SCC 546 ] the Apex Court held that the High Court sitting in Second Appeal cannot examine the evidence once again as a third trial Court and the power under Section 100 C.P.C., is very limited and it can be exercised only where a substantial question of law is raised and fell for consideration. 22. Having considered the entire material available on record and the findings recorded by the trial Court as well as the first Appellate Court, this Court finds no ground or reason warranting interference with the said concurrent findings, under Section 100 C.P.C. Moreover, the grounds raised by the appellants are factual in nature and no question of law much less a substantial question of law arises for consideration in this Second Appeal. 23. In view of the above, this second appeal is dismissed. There shall be no order as to costs. Pending miscellaneous applications, if any, shall stand closed.