HON’BLE SRI JUSTICE B. CHANDRA KUMAR SECOND APPEAL No.1338 of 2007
AND S.A.M.P.No.836 of 2014 JUDGMENT:
This appeal is directed against the order dated 06.08.2007 made in A.S.No.92 of 2003 by the Additional Chief Judge-cum-Judge, Family Court, Secunderabad, whereby and whereunder the judgment and decree dated 23.04.2003 made in O.S.No.1395 of 1999 by the learned XVIII Junior Civil Judge-cum-Additional Rent Controller, Secunderabad has been confirmed.
The brief facts of the case are as follows:
2. The 1st respondent herein is the plaintiff, the appellant herein was the 1st defendant and the 2nd respondent herein was the 2nd defendant in the original suit. The parties hereinafter will be referred to as arrayed before the trial Court for the sake of convenience.
3. The plaintiff filed the suit contending that he is the absolute owner and landlord of the suit schedule premises and defendant Nos.1 and 2 are the tenants on monthly rent of Rs.2,500/- exclusive of electricity and municipal tax. The tenancy is from month to month commencing from the first of the month to end of the month. The plaintiff after issuing notice dated 19.08.1999 under Section 106 of Transfer of Property Act, filed the suit.
4. Defendant Nos.1 and 2 contested the matter and the 1st defendant alone filed a written statement and the 2nd defendant filed a memo adopting the written statement filed by the 1st defendant. Their specific case is that there was oral agreement between the parties, whereunder the plaintiff agreed to extend the lease for a further period of 5 years on enhancement of rent.
5. The trial Court framed the necessary issues. On appreciation of evidence, disbelieved the version of the defendants and decreed the suit directing the defendants to vacate the suit schedule premises. Challenging the said judgment, the 1st defendant alone preferred the appeal A.S.No.92 of 2003. It appears that since the 2nd defendant did not cooperate with the 1st defendant, she was shown as 2nd respondent in appeal. It appears that the 2nd respondent did not contest the appeal. The appellate Court having considered the matter in detail came to the conclusion that the judgment of the trial Court is justified and there are no grounds to allow the appeal, accordingly, the appeal was dismissed on 06.08.2007. Challenging the said judgment, the 1st defendant filed the present second appeal. The plaintiff is shown as 1st respondent herein and the 2nd defendant is shown as 2nd respondent. It is mentioned that the 2nd respondent is not a necessary party to this second appeal.
6. The Second Appeal was admitted on 14.11.2007 and interim stay was granted for a period of one month. Subsequently, the interim stay was extended from time to time. Though, the plaintiff filed vacate petition, the same is also posted along with appeal. Till this date no substantial question of law has been formulated.
7. According to the learned counsel for the appellant the following substantial questions of law arise for consideration are as follows:
a) Whether the suit premises which is more than 15 years old and rent of which is less than Rs.3,500/- per month, is covered by AP B(L,R & E) Control Act, as amended by Act 17 of 2005, and if so, whether the appellate Court has no jurisdiction to confirm the trial Court decree for eviction of the defendants in view of the bar under Section 10(1) of the said Act to evict the tenants in execution of a decree or otherwise except in accordance with provisions of Section 10 of the Act in the absence of saving clause for cases pending at trial and in the appellate Court?
b) Whether the provisions of AP B (L,R & E) Control Act, as amended by Act 15 of 2005 are retroactive/retrospective?
c) Whether civil Courts have jurisdiction to entertain a suit for Ejectment where the monthly rent is less than Rs.3,500/- in view of Act 17 of 2005, under which the AP Building (L,R & E) Act, 1960 was amended?
8. The learned counsel for the appellant submits that in view of the amendment of A.P. Buildings (Lease, Rent & Eviction) Control Act, 1960 (for short ‘the Act’) the above referred substantial questions of law arise. It is also his submission that though the full bench of this Court in case between RAM VILAS BAJAJ & OTHERS Vs. ASHOK [1] KUMAR & OTHERS , held that Section 32(c) of the Act is prospective in operation and it does not affect the eviction proceedings pending as on the date of its coming into force before the Civil Courts or Appellate, Revisional or Executing Courts. However, the said judgment has been stayed by the Hon’ble Apex Court and the said fact is not in dispute. It is his submission that when the judgment of the full bench of this Court is stayed, it cannot be said that the amendment is prospective. His submission is that, since amendment is retrospective, the substantial question of law arises in this appeal. It is also his submission that the appellant filed SAMP.No.836 of 2014 to permit the petitioner to delete the words “the 2nd respondent is not a necessary party to this second appeal” below the cause tile by way of amendment, the appellant filed an affidavit along with the stay application stating that by over sight and due to inadvertence, below the name of 2nd respondent, it is mentioned that the 2nd respondent is not a necessary party to this second appeal.
9. Sri VL N G K Murthy, learned counsel for the respondents submits that the 1st respondent herein filed the suit on 04.10.1999 and the suit was decreed on 23.04.2003 and the same has been confirmed on 06.08.2007. It is also his submission that even according to the appellant/1st defendant the oral agreement of extending lease is only for a period of 5 years from the year 1999 and even that period also elapsed long ago and that the 1st defendant is in continuous possession of the suit schedule property by virtue of the interim orders passed by this Court and due to pendency of the litigation and that there is no justification to consider the application filed by the appellant at this stage. He is also relied on a judgment of the Apex Court in case between GOVERNMENT OF A.P. & OTHERS Vs. N. RAMI REDDY & OTHERS in W.A.Nos.1417, 1419, 1420, 1618, 1620 & 1621 etc., of 2000 dated 21.12.2000, wherein it is observed that staying of a judgment does not mean that the ratio of decision has been wiped off. It is submitted that since the judgment is not suspended, the observation of the Apex Court ratio of the judgment of the Full court is deemed to be in force.
10. The facts are not in dispute, admittedly, the suit was filed on 04.10.1999 and it was decreed on 23.04.2003. The decree was passed against both the defendants directing them to vacate the suit schedule property. It is not in dispute that both the defendants were joint tenants. In spite of suffering a decree, the 1st defendant alone choose to file appeal, the 2nd defendant did not file the appeal. There is nothing on record to show that the 2nd defendant made any appearance even after receiving notice in the appeal filed by the 1st defendant. Thus, it is clear that the 2nd defendant did not evince any interest and the decree passed against her by the trial Court became final. It may be fact since the 2nd defendant did not cooperate with the 1st defendant, the 1st defendant alone filed the appeal. Probably having regard to the fact that the 2nd defendant did not cooperate with the 1st defendant in challenging the decree and judgment passed by the trial Court and that the 2nd defendant did not appear and make her submission in A.S.No.92 of 2003, the 1st defendant mentioned that the 2nd respondent is not necessary party to this appeal in the cause title. It has to be noted that the second appeal was filed on 14.11.2007. Unfortunately, no substantial question of law has been formulated. It was simply admitted on 14.11.2007 and interim stay was granted. The appellant did not take any steps to correct the mistake if any occurred in mentioning the 2nd respondent as not necessary party till the date of filing application SAMP.No.836 of 2014. This application has been filed on 15.04.2014. Even if the version of the appellant is accepted, no useful purpose will be served and in view of the inordinate delay in filing of the application, I do not see any reason to entertain the said application. Accordingly, S.A.M.P.No.836 of 2014 is liable to be dismissed.
11. Coming to the substantial questions of law raised in the grounds of appeal, it is clear that the full bench of this Court in the above referred judgment Ram Vilas’s case (1 Supra) categorically held that the amendment to Section 32 of the Act is prospective in operation and it does not affect the eviction proceedings pending as on the date of its coming into force before the Civil Courts or Appellate, Revisional or Executing Courts. No party is expected to dream what kind of amendments would come in future particularly on the date of filing of a suit. Normally, the parties act basing on the law prevailing on the date of filing of the suit. Since in view of the matter pending before the Apex Court, there is nothing to express any view on this aspect. As far as staying of the proceedings are concerned, it is clear that the appellate Court has ordered as follows: “Issue notice. In the meantime, there shall be stay of the impugned judgment.” by order dated 24.08.2007. When a similar question came before the Apex Court for making a distinction between the stay of operation of judgment and suspension of operation of judgment, the Apex Court observed as follows:
“10. The main question which, thus, arises for consideration is as to whether having regard to the aforementioned interim order of stay passed by the Apex Court on 27.09.2000 in S.L.P.(C).No.15177 of 2000, the ratio of the judgment has been wiped out or not.
11. It is now a well settled principles of law that the ratio of a judgment is the reasons assigned in support thereof. While a Court of appeal stays the operation of the judgment, it stays the further implementation, as between the parties, of the operative portion there of, and thereby the ratio of the decision cannot be said to be wiped off. Further more, a distinction must be borne in mind that the appeal Court may, in a given situation, also suspend the operation of the said decision. Suspension of operation of a judgment and staying the operation of the order, in our view, connotes two different situations.”
12. In view of the above referred judgment of the Apex Court, whereby a clear distinction has been made by what is meant by suspension of operation of judgment and stay of operation of judgment, the substantial questions of law raised by the appellant cannot be considered. Since the substantial questions of law are raised only basing upon the amendment brought to the Act during the pendency of the appeal on 28.05.2005. Therefore, I do not see any reason to interfere with the well reasoned orders of the Courts below.
13. Accordingly, S.A.M.P.No.836 of 2014 and the Second Appeal are dismissed. No costs. On filing an affidavit by the appellant giving undertaking to vacate the premises and payment of rents within two (2) weeks from today, he shall be allowed to continue in the premises till 16.06.2014. Miscellaneous Petitions, if any, pending in this appeal shall stand closed.
B. CHANDRA KUMAR, J
Date: 16.04.2014 ska
[1] 2007 (4) ALT 348 (LB)