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2025 DIGILAW 647 (AP)

Wasim Ahmed Khan v. P. A. Jay Kumar

2025-05-05

V.GOPALA KRISHNA RAO

body2025
JUDGMENT : V. GOPALA KRISHNA RAO, J. This second appeal is filed aggrieved against the Judgment and decree dated 19.06.2024 in A.S.No.157 of 2020 on the file of the XII Additional District Judge, Visakhapatnam (“First Appellate Court” for short), confirming the Judgment and decree dated 04.02.2020 in O.S.No.1038 of 2015 on the file of the VI Additional Senior Civil Judge, Visakhapatnam (“Trial Court” for short). 2. The appellant herein is the defendant and the 1 st respondent herein is the sole plaintiff in O.S.No.1038 of 2015 on the file of the VI Additional Senior Civil Judge, Visakhapatnam. During the pendency of the appeal suit, the plaintiff died and his legal representatives were brought on record as respondent Nos.2 to 5. 3. The plaintiff initiated action in O.S.No.1038 of 2015 on the file of the VI Additional Senior Civil Judge, Visakhapatnam, with a prayer for recovery of vacant possession of schedule premises from the defendant and for recovery of arrears of rents and damages. 4. The learned trial Judge decreed the suit. Felt aggrieved of the same, the unsuccessful defendant in the above said suit filed the aforesaid appeal before the first appellate Court. The learned First Appellate Judge dismissed the first appeal by confirming the judgment and decree passed by the trial Court. Aggrieved thereby, the unsuccessful defendant/appellant 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.1038 of 2015, is as follows: The plaintiff is the absolute owner of suit schedule premises. The defendant approached the plaintiff and requested to let out the ground floor portion for doing readymade garments business during 1997. The plaintiff have accepted the request of the defendant and leased out the ground floor to the defendant for running a readymade garments business in the name and style of 'ADAMS DEN' on a monthly rent of Rs.5,000/- by executing an agreement of lease on 01.12.1997 for a period of 11 months and rent has to pay on or before 5 th of every succeeding month. Accordingly, the defendant used to pay rents and acknowledged the same by passing receipts in total of the same. The lease agreement was expired by 01.11.1998. Accordingly, the defendant used to pay rents and acknowledged the same by passing receipts in total of the same. The lease agreement was expired by 01.11.1998. Subsequently, the defendant used to pay rents irregularly and committed default in paying the rents and as such the plaintiff is not intended to extend the lease period and demanded the defendant to vacate the premises. The plaintiff went to USA. Taking advantage of the absence of the plaintiff, the defendant with a malafide intention changed the business and started furnishing business in the name and style of 'Royal Furnishings' in the name of the defendant's wife Smt. Seema Khan and also nature of business and contrary to the terms and conditions of the lease agreement. After returning from USA, the plaintiff questioned the defendant and demanded for payment of rents. The defendant taking advantage of his licence from November, 1999 have committed default in payment of rents and in spite of demands the defendant issued 4 cheques i.e., on 25.12.2002 for an amount of Rs.5,000/-, on 25.01.2003 for an amount of Rs.5,000/-, on 25.02.2003 for an amount of Rs.5,000/- and on 25.03.2003 for an amount of Rs.5,000/-, drawn on Andhra Bank, Dabagardens Branch, Visakhapatnam towards payment of arrears of rents. On presentation of the above said cheques, they were dishonoured and thereafter criminal proceedings initiated against the defendant and his wife under Section 138 of the Negotiable Instruments Act. On receipt of summons in the criminal case, the defendant paid Rs.60,000/- by way of cash towards part payment of arrears of rent and the amounts covered by the dishonoured cheques. Thereafter, the plaintiff withdrawn the criminal case on 15.10.2003, as the defendant assured to vacate the schedule premises by paying balance arrears of rent. The defendant committed default of rents of Rs.1,80,000/- and finally paid Rs.5,000/- in the month of April, 2014 and again he failed to pay the arrears of rent. The plaintiff got issued a legal notice on 20.12.2014 to the defendant to vacate the schedule premises on or before 31.01.2015 and the said notice received by the defendant on 27.12.2014 and the defendant failed to vacate the same and that the plaintiff is constrained to file the suit. 7. The defendant on receipt of suit summons engaged an Advocate and got filed written statement. 7. The defendant on receipt of suit summons engaged an Advocate and got filed written statement. Thereafter, the plaintiff filed a petition in I.A.No.138 of 2019 under Order XV-A of the Code of Civil Procedure (“C.P.C.” for short) seeking direction to the defendant to pay arrears of rent and in case the defendant failed to pay the arrears of rent, the defence pleaded by the defendant may be struck off as contemplated under Order XV-A of CPC and the same was allowed on merits on 16.12.2019. As per the order in I.A.No.138 of 2019, the trial Court directed the respondent/defendant to pay arrears of rent within one month from the date of order but the defendant failed to pay the arrears of rent and thus the defence pleaded by the defendant was stricken off. Therefore, there is no defence on behalf of the defendant in the suit. 8. On the basis of above, the learned trial Judge framed the following issue for trial: Whether the plaintiff is entitled for recovery of vacant possession of the schedule premises by vacating the defendant from schedule premises and to receive arrears of rents of Rs.1,80,000/- and damages @ Rs.20,000/- per month from January, 2015? 9. During the course of trial in the trial Court, on behalf of the plaintiff, P.W.1 was examined and Ex.A.1 to Ex.A.5 were marked. 10. The learned trial Judge after conclusion of trial, on hearing the arguments of plaintiff and on consideration of oral and documentary evidence on record, decreed the suit. Felt aggrieved thereby, the unsuccessful defendant filed the appeal suit in A.S.No.157 of 2020 before the First Appellate Court, wherein, the following points came up for consideration. (1) Whether there exists jural relationship of the landlord and the tenant between the plaintiff and defendant? (2) Whether the plaintiff is entitled to the relief of eviction and recovery of arrears of rent, as prayed for? (3) Whether the decree and judgment, dated 04.02.2020 rendered in O.S.No.1038 of 2015 on the file of the Court of learned VI Additional Senior Civil Judge, Visakhapatnam, are liable to be set aside, or sustainable? 11. The learned First Appellate Judge, after hearing the arguments, answered the points, as above, against the defendant /appellant and in favour of the plaintiff/respondents and dismissed the appeal filed by the defendant. 11. The learned First Appellate Judge, after hearing the arguments, answered the points, as above, against the defendant /appellant and in favour of the plaintiff/respondents and dismissed the appeal filed by the defendant. Felt aggrieved of the same, the unsuccessful defendant in O.S.No.1038 of 2015 filed the present second appeal before this Court. 12. Heard Sri S. Mohana Rao, learned counsel for the appellant and heard Sri Phani Babu Yelamanchili, learned counsel appearing for respondents. 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 question of law between the parties arise in this case. A proper test for determining whether a question 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 question 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 a substantial question of law. 14. The defendant having chosen to invoke the jurisdiction of this Court under Section 100 of Civil Procedure Code, it is for him to meet the above principles and satisfy the Court whether there exists any substantial question of law. 15. 14. The defendant having chosen to invoke the jurisdiction of this Court under Section 100 of Civil Procedure Code, it is for him to meet the above principles and satisfy the Court whether there exists any substantial question 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 appellant has shown any substantial question 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 appellant is the defendant in the suit. The 1 st respondent/plaintiff filed a suit for eviction of the defendant and recovery of arrears of rent and damages against the appellant/defendant. The undisputed facts are the appellant is the tenant of the plaintiff in respect of schedule premises and monthly rent is Rs.5,000/- and tenancy is month to month and there is a lease agreement in between the plaintiff and defendant and after expiry of lease, the defendant failed to vacate the premises and the defendant also committed default of payment of rents from January, 2012 to December, 2014 and thereby committed default of arrears of rent of Rs.1,80,000/-. The evidence on record reveals that the plaintiff issued a Quit notice under Section 106 of the Transfer of Property Act, dated 20.12.2014 by demanding the defendant to vacate the suit schedule premises on or before 31.01.2015 and the defendant received the said notice on 27.12.2014, but he failed to give any reply notice to that quite notice which leads to filing of the suit for eviction by the plaintiff on 04.08.2015 vide O.S.No.1038 of 2015. 17. 17. It is undisputed by the defendant after receipt of suit summons, the defendant engaged an Advocate and filed written statement and subsequently, the plaintiff filed a petition in I.A.No.138 of 2019 under Order XV-A of CPC before the trial Court to direct the defendant to deposit the arrears of rent and to evict the defendant from the suit schedule premises and the respondent in the said application i.e., defendant filed a counter by engaging an Advocate and contested the said application and the same is allowed by order, dated 16.12.2019 by the trial Court on merits directing the defendant to pay arrears of rent from January, 2013 to November, 2019 at Rs.5,000/- per month on or before 20.01.2020; failing which the defence pleaded by the defendant will strike off. Ultimately, though after availing sufficient time, the defendant failed to comply the order passed by the trial Court and that the defence of the defendant was struck off by the trial Court on 20.01.2020. It is an admitted fact that orders passed in I.A.No.138 of 2019 is not at all challenged by the defendant and the same is become final. 18. Order XV-A of CPC defines.- Striking off defence in a suit by a lessor; [(1) In any suit by a lessor or a licensor against a lessee or a licensee, as the case may be, for his eviction with or without the arrears of rent or licence fee and future mesne profits from him, the defendant shall deposit such amount as the court may direct on account of arrears up to the date of the order (within such time as the Court may fix) and thereafter continue to deposit in each succeeding month the rent or licence fee claimed in the suit as the court may direct. The defendant shall, unless otherwise directed, continue to deposit such amount till the decision of the suit. The defendant shall, unless otherwise directed, continue to deposit such amount till the decision of the suit. In the event of any default in making the deposits, as aforesaid, the Court may subject to the provisions of sub-rule (2) strike off the defence.] (2) Before passing an order for striking off the defence, the Court shall serve notice on the defendant or his Advocate to show cause as to why the defence should not be struck off, and the Court shall consider any such cause, if shown in order to decide as to whether the defendant should be relieved from an order striking off the defence. Admittedly, in the case on hand, the defendant engaged an Advocate and filed counter in I.A.No.138 of 2019 and failed to comply the order passed by the trial Court which leads striking off the defence of the defendant. As stated supra, the order passed by the trial Court in I.A.No.138 of 2019 is become final and no Revision has been filed by the defendant. The aforesaid order in I.A.No.138 of 2019 has been passed on merits on 16.12.2019 by giving time of 45 days to the defendant to comply the order, but the defendant for the reasons best known to him failed to comply the order passed by the trial Court. Order XV-A of CPC was introduced into the Civil Procedure Code through the Andhra Pradesh State Amendment. It enables the plaintiff in a suit for recovery of possession of immovable property from a lessee, to insist on deposit of rents, along with written statement. Once, an order is passed directing the defendant in such a suit to deposit the arrears of rent, non-compliance which it would entitled in striking off the defence. 19. As stated supra, the relationship of landlord and tenant in between the plaintiff and defendant is not in dispute and the lease agreement in between both the parties is also not in dispute and the lease agreement period is also expired and the plaintiff also filed an application under Order XV-A of CPC to direct the respondent/defendant to deposit arrears of rent vide I.A.No.138 of 2019 on 27.02.2019. After a lapse of nearly more than 3 ½ months, a petition has been filed by the defendant vide I.A.No.577 of 2019 to deposit future rents into the Court. After a lapse of nearly more than 3 ½ months, a petition has been filed by the defendant vide I.A.No.577 of 2019 to deposit future rents into the Court. A copy of the order passed in I.A.No.577 of 2019 by the trial Court on merits filed by the defendant goes to show the defendant has pleaded in that application that he may be permitted to deposit arrears of rent from October, 2015 to March, 2019 in 10 equal installments. The aforesaid pleading of the defendant in that application clearly goes to show that the defendant committed default of payment of arrears of rent. It clearly goes to show that the defendant without paying rents to the plaintiff squatter in the plaint schedule premises. 20. The learned counsel for the appellant placed a reliance of M/s.Paradise Industrial Corporation vs. M/s.Kiln Plastics Products , [(1976) 1 Supreme Court Cases 91] wherein the Apex Court held as follows: “Even when a defence is truck off the defendant is entitled to appear, cross-examine the plaintiff's witnesses and submit that even on the basis of the evidence on behalf of the plaintiff a decree cannot be passed against him, whereas if it is ordered in accordance with Section 11(4) that he shall not be entitled to appear in or defend the suit expect with the leave of the Court he is placed at a greater disadvantage”. The ratio laid down in the aforesaid case law relates to the provisions of Rent Control Act. The said case was decreed and the said case was decided by the Apex Court on 29.09.1975 whereas the facts in the present case are Order XV-A of CPC was introduced into the Code of Civil Procedure through the Andhra Pradesh State Amendment with effect from 11.01.1990. 21. The learned counsel for the appellant placed a reliance of Karm Engineering Works vs. M.S. Enterprises , [1999 AIR (P&H) 38] , wherein the High Court of Punjab & Haryana held as follows: “The provisions of Order 15, Rule 5 of the Code have been interpreted and at the outlet it deserves observation that it is not mandatory to strike off the defence. The Supreme Court in the case of Bimal Chand Jain v. Gopal Agarwal, AIR 1981 SC 1657 : (1981 All LJ 908), held that this discretion is to be exercised carefully. The Supreme Court in the case of Bimal Chand Jain v. Gopal Agarwal, AIR 1981 SC 1657 : (1981 All LJ 908), held that this discretion is to be exercised carefully. In paragraph 6 of the judgment, it was held as under (at page 1659 of AIR):-- “….. A serious responsibility rests on the Court in the matter and the power is not to be exercised mechanically. There is a reserve of discretion vested in the Court entitling it not to strike-off the defence if on the facts and circumstances already existing on the record it finds good reason for not doing so. It will always be a matter for the judgment of the Court to decide whether on the material before it, notwithstanding the absence of a representation under Sub-rule (2), the defence should or should not be struck-off. The word “may” in Sub-rule (1) merely vests power in the Court to strike-off the defence. It does not oblige it to do so in every case of default…..” The learned counsel for the appellant placed another reliance of Sunil Kumar Sharma vs. Preeti Sharma , [2022 LawSuit (Del) 1041] , wherein the Division Bench of the Delhi High Court held as follows: In this regard, reference may be made to Bimal Chand Jain v. Sri Gopal Agarwal, (1981) 3 SCC 486 , wherein the Supreme Court - while deciding an appeal where the defence of the appellant was struck off for default in making payment under Rule 5 of Order 15, inter alia, held as follows: "6. ... Sub-rule (2) obliges the court, before making an order for striking off the defence to consider any representation made by the defendant in that behalf. In other words, the defendant has been vested with a statutory right to make a representation to the court must consider it on its merits, and then decide whether the defence should or should not be struck off. This is a right expressly vested in the defendant and enables him to show by bringing material on the record that he has not been guilty of the default alleged or if the default has occurred there is good reason for it. Now, it is not impossible that the record may contain such material already. In that event, can it be said that sub-rule (1) obliges the court to strike off the defence? Now, it is not impossible that the record may contain such material already. In that event, can it be said that sub-rule (1) obliges the court to strike off the defence? We must remember that an order under sub-rule (1) striking off the defence is in the nature of a penalty. A serious responsibility rests on the court in the matter and the power is not to be exercised mechanically. There is a reserve of discretion vested in the court entitling it not to strike off the defence if on the facts and circumstances already existing on the record it finds good reason for not doing so. It will always be a matter for the judgment of the court to decide whether on the material before it, notwithstanding the absence of a representation under sub-rule (2), the defence should or should not be struck off." In the case on hand, the petition under Order XV-A of CPC was filed on 27.02.2019. After giving opportunity to the defendant and after filing counter by the defendant, an order has been passed by the trial Court on 16.12.2019 by giving 45 days time to deposit arrears of rent at Rs.5,000/- per month on or before 20.01.2020; failing which the defence of the defendant was struck-off. Admittedly, the defendant failed to comply the said order and that the defence of the defendant was struck off on 20.01.2020. Later on, a chief affidavit of plaintiff has been filed in the main suit proceedings as P.W.1 and Ex.A.1 to Ex.A.6 are got marked. By giving reasons, the learned First Appellate Judge in that judgment gave finding that “the defendant had an opportunity to cross examine P.W.1, but he did not avail the said opportunity and he can cross examine P.W.1 even though his defence was struck off and the cross examination of P.W.1 is based on the contentions of the defendant with reference to the chief affidavit filed by the plaintiff, but the defendant did not choose to cross examine P.W.1.” It clearly goes to show that an opportunity was given to the defendant to cross examine plaintiff but he did not avail that opportunity. The judgment passed by the trial Court in O.S.No.1038 of 2015 shows that it is not an ex parte judgment. The judgment passed by the trial Court in O.S.No.1038 of 2015 shows that it is not an ex parte judgment. The evidence of plaintiff was closed on 27.01.2020 and the trial Court passed judgment on 04.02.2020 by giving one month time to vacate the plaint schedule premises and also to pay the arrears of rent from January, 2015 to till the defendant vacate the plaint schedule premises at Rs.5,000/- per month and deliver the vacant possession to the plaintiff. Later, on 17.11.2020 the first appeal has been filed by the defendant against that judgment. The first appeal was also dismissed by the learned First Appellate Judge on 19.06.2024. Both the Courts gave a concurrent findings that the appellate/defendant is liable to be evicted from the schedule premises and also liable to pay arrears of rent from January, 2015 till the date of vacation of the schedule premises by the defendant at Rs.5,000/- per month. 22. In the case on hand, the plaintiff issued a legal notice under Section 106 of the Transfer of Property act on 20.12.2014 under Ex.A.4. The defendant denied the factum of receipt of legal notice in the written statement. In the written statement, he pleaded that he has no knowledge about Ex.A.4 legal notice. It is evident as per Ex.A.5 letter addressed by the postal authorities that Ex.A.4 notice was delivered to the defendant on 24.12.2014, but the defendant did not choose to send any reply to Ex.A.4 legal notice by denying the contents in Ex.A.4. The defendant has not explained any reason for not responding to Ex.A.4 legal notice. Admittedly, the lease period is expired. The recitals in Ex.A.4 legal notice, dated 20.12.2014 under Section 106 of the Transfer of Property Act goes to show that the defendant committed default of payment of arrears of rent of Rs.1,80,000/-. The due of arrears of rent is clearly admitted by the defendant in I.A.No.577 of 2019 filed by him. In I.A.No.577 of 2019 before the trial Court, the defendant requested the trial Court that he may be permitted to deposit the arrears of rent from October, 2015 to March, 2019 in 10 equal installments. It clearly goes to show that the defendant committed willful default of payment of rents and during the pendency of the suit also, the defendant failed to pay the rents to the plaintiff. It clearly goes to show that the defendant committed willful default of payment of rents and during the pendency of the suit also, the defendant failed to pay the rents to the plaintiff. The plaintiff demanded the defendant under Ex.A.4 legal notice to pay the arrears of rent and to vacate the suit schedule premises on or before 31.01.2015. Having received the legal notice under Ex.A.4, the defendant failed to pay the arrears of rent and also vacate the suit schedule premises which results in filing of the suit by the plaintiff. 23. 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 in favour of the defendant and against the plaintiff do not brook interference and that both the Courts below are justified in dismissing the suit 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 a substantial question 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. 24. 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 question of law arises for consideration and when no substantial question 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. 25. 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. 25. In the result, the second appeal is dismissed at the stage of admission, confirming the judgment and decree of both the Courts below and three (03) months time is granted to the appellant/defendant to deliver the vacant possession of the plaint schedule premises to the respondents herein from the date of this judgment. Considering the facts and circumstances of the case, each party shall bear their own costs in this second appeal. Pending applications, if any, shall stand closed.