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2025 DIGILAW 478 (AP)

Tatineni Sudha Chowdary v. Nafeesa Nasreen

2025-03-17

VENUTHURUMALLI GOPALA KRISHNA RAO

body2025
JUDGMENT : VENUTHURUMALLI GOPALA KRISHNA RAO, J. 1. This second appeal under Section 100 of the Code of Civil Procedure (“C.P.C.” for short ) is filed aggrieved against the Judgment and decree, dated 08.07.2022 in A.S.No.187 of 2015, on the file of VII Additional District Judge-cum-IV Additional Metropolitan Sessions Judge at Vijayawada (“First Appellate Court” for short), confirming the Judgment and decree, dated 01.06.2015 passed in O.S.No.378 of 2012, on the file of the III Additional Senior Civil Judge, Vijayawada (“trial Court” for short). 2. The appellant herein is the defendant and the respondent herein is the plaintiff in O.S.No.378 of 2012, on the file of the III Additional Senior Civil Judge, Vijayawada. 3. The plaintiff initiated action in O.S.No.378 of 2012, on the file of the III Additional Senior Civil Judge, Vijayawada, with a prayer for eviction of the defendant from the suit schedule property and for recovery of arrears of rent from 01.04.2010 to 31.12.2011 and recovery of damages @ Rs.8,600/- per month from 01.01.2012 till the date of delivery and for costs. 4. The learned III Additional Senior Civil Judge, Vijayawada, decreed the suit partly with costs directing the defendant to vacate and hand over the vacant possession of the schedule premises to the plaintiff within two months from the date of decree and the plaintiff is at liberty to file a petition to ascertain the mesne profits and the other prayer of the plaintiff is hereby dismissed as she has already received the rents. Felt aggrieved of the same, the unsuccessful defendant in the above said suit filed A.S.No.187 of 2015, on the file of VII Additional District Judge-cum-IV Additional Metropolitan Sessions Judge at Vijayawada. The learned VII Additional District Judge-cum- IV Additional Metropolitan Sessions Judge at Vijayawada, dismissed the first appeal by confirming the judgment and decree passed by the trial Court. Aggrieved thereby, the unsuccessful defendant in the suit approached this Court by way of second appeal. 5. For the sake of convenience, both parties in the appeal will be referred to as they are arrayed in the original suit. 6. The case of the plaintiff, in brief, as set out in the plaint averments in O.S.No.378 of 2012, is as follows: (i) The plaintiff is the absolute owner of the building bearing D.No.30-51-24/1, situated at Durga Agraharam, Vijayawada, which is the plaint schedule property. 6. The case of the plaintiff, in brief, as set out in the plaint averments in O.S.No.378 of 2012, is as follows: (i) The plaintiff is the absolute owner of the building bearing D.No.30-51-24/1, situated at Durga Agraharam, Vijayawada, which is the plaint schedule property. On 10.09.2008, the defendant was inducted into the plaint schedule property as a monthly tenant on a monthly rent of Rs.4,300/- and Rs.200/- towards maintenance charges. The defendant had agreed to pay the monthly rent on or before 5 th of every succeeding month and also agreed to vacate the premises as and when demanded by the plaintiff and also agreed to vacate the premises, if he fails to pay the rents within the stipulated time. Contrary to the agreement, the defendant had paid rents irregularly and committed default since 01.04.2010 onwards. (ii) The defendant filed suit, O.S.No.219 of 2011 on the file of I Additional Junior Civil Judge, Vijayawada for permanent injunction restraining the plaintiff in interfering with the peaceful possession and enjoyment of the plaint schedule property except by due process of law. The said suit was dismissed on merits on 05.01.2012. The plaintiff demanded the defendant several times to vacate the premises as she is defaulter of monthly rent she is not entitled to continue in the premises. The plaintiff got issued notice on 30.11.2011, terminating the tenancy and demanded the defendant to vacate the premises on or before 31.12.2011 and also demanded to pay the arrears of rent and damages, as such, the plaintiff is constrained to file the suit. 7. The defendant filed written statement before the trial Court by denying the averments made in the plaint and contended as follows: The defendant took the premises on a monthly rent of Rs.1,100/- including the electricity charges. At the time of induction, she paid an advance of Rs.6,600/- on a condition that the plaintiff has to return the same at the time of vacating the premises. The tenancy is month to month commences from 1 st day of English Calendar month, there was no practice of issuing rent receipts. The defendant is regularly paying monthly rent to the General Power of Attorney and to his son. There was no default in paying monthly rent she paid rent up to February, 2013. The said fact was witnessed by other co-tenants. The defendant is regularly paying monthly rent to the General Power of Attorney and to his son. There was no default in paying monthly rent she paid rent up to February, 2013. The said fact was witnessed by other co-tenants. The plaintiff with a view to cause loss to the defendant filed suit suppressing the facts. She preferred an appeal against the judgment in O.S.No.219 of 2011. The quit notice issued by the plaintiff is not in accordance with law and it is not binding on the defendant. Therefore, the suit is not maintainable. There is no pecuniary jurisdiction to entertain the suit and the same may be dismissed. 8. On the basis of above pleadings, the learned trial Judge, framed the following issues for trial: (1) Whether the monthly rent of the schedule premises is Rs.4,300/- as claimed by the plaintiff? (2) Whether the plaintiff is entitled for eviction of the defendant from the schedule premises? (3) Whether the plaintiff is entitled to recover the arrears of rent? (4) Whether the plaintiff is entitled for damages at Rs.8,600/- per month as claimed for? (5) To what relief? 9. During the course of trial in the trial Court, on behalf of the plaintiff, P.W.1 and P.W.2 were examined and Ex.A.1 to Ex.A.5 were marked. On behalf of the defendant, D.W.1 was examined and Ex.B.1 to Ex.B.22 were marked. 10. The learned III Additional Senior Civil Judge, Vijayawada, after conclusion of trial, on hearing the arguments of both sides and on consideration of oral and documentary evidence on record, decreed the suit partly with costs. Felt aggrieved thereby, the unsuccessful defendant filed the appeal suit in A.S.No.187 of 2015, on the file of VII Additional District Judge-cum-IV Additional Metropolitan Sessions Judge at Vijayawada, wherein, the following point came up for consideration. Whether the plaintiff is entitled for eviction of the defendant from the schedule land? 11. The learned VII Additional District Judge-cum-IV Additional Metropolitan Sessions Judge at Vijayawada i.e., the first appellate Judge, after hearing the arguments, answered the points, as above, against the defendant/appellant and in favour of the plaintiff/respondent and dismissed the first appeal. Felt aggrieved of the same, the unsuccessful defendant in O.S.No.378 of 2012 filed the present second appeal before this Court. 12. Heard Sri Sai Gangadhar Chamarthy, learned counsel for the appellant and heard Sri Tatipudi Ramesh Babu, learned counsel for the respondent. 13. Felt aggrieved of the same, the unsuccessful defendant in O.S.No.378 of 2012 filed the present second appeal before this Court. 12. Heard Sri Sai Gangadhar Chamarthy, learned counsel for the appellant and heard Sri Tatipudi Ramesh Babu, learned counsel for the respondent. 13. 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 of CPC could be admitted only when the appellant satisfies this Court that the substantial questions of law between the parties arise in this case. A proper test for determining whether a questions of law raised in the case is substantial would be or whether it directly and substantially 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. In a case of Boodireddy Chandraiah v. Arigela Laxmi , (2007) 8 SCC 155 , the Apex Court held 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 facts are possible, one drawn by the lower appellate Court will not be interfered by the High Court in a 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 questions of law in second appeal. The mere appreciation of facts, the documentary evidence and the contents of the documents cannot be held to be raising substantial questions of law.” 14. The appellant/defendant having chosen to invoke the jurisdiction of the Second Appellate Court under Section 100 of CIVIL PROCEDURE CODE , it is for her to meet the above principles and satisfy the Court whether there exists any substantial questions of law. 15. The appellant/defendant having chosen to invoke the jurisdiction of the Second Appellate Court under Section 100 of CIVIL PROCEDURE CODE , it is for her to meet the above principles and satisfy the Court whether there exists any substantial questions of law. 15. This second appeal is filed against the concurrent findings arrived by both the Courts below, therefore the grounds urged in the second appeal are to be scrutinized to find out whether the appellants have shown any substantial questions of law. The contention of the appellant is that the judgment and decree of the trial Court as well as the first appellate Court are contrary to law and that the second appeal may be allowed by setting aside the judgment and decree passed by both the Courts below i.e. the trial Court and the first appellate Court. 16. The undisputed facts are the plaintiff is absolute owner of the plaint schedule property and the defendant is a tenant inducted in the year 2008 and the tenancy is month to month. It is undisputed fact that the defendant filed O.S.No.219 of 2011 on the file of I Additional Junior Civil Judge, Vijayawada, for claiming relief of permanent injunction against the plaintiff not to evict her from the plaint schedule property except due process of law, the said suit was dismissed. Later, after dismissal of the said suit, the present suit is filed in the year 2012 for claiming relief of eviction of the defendant from the plaint schedule property. The plaintiff relied on the evidence of P.W.1 and P.W.2. It is not in dispute by both the parties that the plaintiff issued a quit notice under Ex.A.2 terminating the tenancy as the defendant committed willful default of payment of rent. The defendant pleaded that the monthly rent is Rs.1,100/- whereas the plaintiff pleaded that the monthly rent is Rs.4,300/- in respect of plaint schedule property. The relationship of land-lady and the tenant is not in dispute by both parties. The First Appellate Court by giving cogent reasons came to a conclusion that the quantum of rent is Rs.4,300/- per month in addition to monthly charges of Rs.200/-. 17. A quit notice was issued by the plaintiff to the defendant by giving 15 days time to vacate the plaint schedule property. The defendant did not issue any reply notice by denying the contents in the legal notice. 17. A quit notice was issued by the plaintiff to the defendant by giving 15 days time to vacate the plaint schedule property. The defendant did not issue any reply notice by denying the contents in the legal notice. The defendant having received the notice kept quiet and did not issue any reply notice with a specific plea that the monthly rent is Rs.1,100/- but not Rs.4,300/- and she is paying rents regularly to the plaintiff. The defendant has not shown any reason for not responding the legal notice. The tenant in the present suit i.e., D.W.1 admits in her evidence that the plaint schedule property consists of four rooms and situated in a commercial-cum-residential area and there is nothing to show that the monthly rent was Rs.1,100/-. In the case on hand, the defendant admitted that she filed a suit in the year 2011, but the rents are not deposited from 2011 onwards though claims that the plaintiff used to receive the rents. 18. A notice under Section 106 of the Transfer of Property Act should be construed broadly and it should not be defeated by inaccuracies either in the description of the premises or name of the tenants or the date of expiry of notice. From the language used in the quit notice, it must be endeavored to ascertain the intention of the parties and that effect thereof and it should not be the read in hyper critical manner but should be construed in a commonsense way. Admittedly, the tenant was asked to vacate the suit schedule premises within 15 days from the date of receipt of Ex.A.2 legal notice. Having received Ex.A.2 quit notice, the defendant kept quiet and not responding the legal notice issued by the plaintiff. 19. It is well settled that on expiry of period of lease, the erstwhile lessee continuous in possession because of the law of the land viz., that original land-lady cannot physically thrown out such an erstwhile tenant by force. She must get her claim for possession adjudicated by a competent Court as per the relevant provisions of law. It is also equally settled that the status of an erstwhile tenant has to be treated as tenant at sufferance akin to a trespasser having no independent right to continue in possession. 20. She must get her claim for possession adjudicated by a competent Court as per the relevant provisions of law. It is also equally settled that the status of an erstwhile tenant has to be treated as tenant at sufferance akin to a trespasser having no independent right to continue in possession. 20. Law is well settled that in the second appeal under Section 100 of the Code of Civil Procedure the High Court cannot substantiate its own opinion unless the Court finds that the conclusions drawn by both the Courts are erroneous being, (i) contrary to the mandatory provisions of the applicable law or (ii) contrary to the law as pronounced by the Apex Court or based on inadmissible or no evidence. Admittedly, in the case on hand, the defendant failed to prove that the conclusions drawn by the First Appellate Court were erroneous being contrary to the mandatory provisions of applicable law or the conclusions drawn by the First Appellate Court is based on inadmissible in evidence. 21. Having regard to the reasons assigned, this Court is satisfied that the concurrent findings of fact recorded by both the Courts below on all the issues/points against the defendants and in favour of the plaintiff do not brook interference and that both the Courts below are justified in decreeing the suit in favour of the plaintiff. The findings of fact recorded by both the Courts below were based on proper appreciation of evidence and the material on record and there was neither illegality nor irregularity in those findings and therefore, the findings do not require to be upset. Further, the existence of substantial questions of law is a sine qua non for the exercise of jurisdiction by this Court as per Section 100 of Code of Civil Procedure. The questions raised, strictly speaking, are not even pure questions of law, let alone substantial questions of law. 22. Viewed thus, this Court finds that none of the questions raised are substantial questions and there is no subsistence in the questions raised and that therefore, the second appeal is devoid of merits and is liable for dismissal at the stage of admission. The law is well settled that a second appeal shall not be admitted if no substantial questions of law arise for consideration and when no substantial questions of law is involved. The law is well settled that a second appeal shall not be admitted if no substantial questions of law arise for consideration and when no substantial questions of law is involved. The view of this Court is reinforced by the ratio laid down by the Apex Court in the case of Gurdev Kaur v. Kaki , AIR 2006 SC 1975 . In the case on hand, as stated supra, this Court finds after careful examination of the pleadings, evidence and contentions that no substantial question of law is involved, this second appeal is liable for dismissal at the stage of admission, in view of narrow compass of Section 100 of CIVIL PROCEDURE CODE . 23. In the result, the second appeal is dismissed at the stage of admission, confirming the judgment and decree of both the Courts below by granting three (03) months time to the appellant/defendant to vacate the plaint schedule premises. Considering the facts and circumstances, there shall be no order as to costs. As a sequel, miscellaneous petitions, if any, pending in the Appeal shall stand closed.