THE HONOURABLE Ms. JUSTICE G. ROHINI SECOND APPEAL No.1193 OF 2013 Date: 24.01.2014 Between:
Chatti Suresh Goud … Appellant And Ramavath Savithri Bai and three others … Respondents THE HONOURABLE Ms. JUSTICE G. ROHINI SECOND APPEAL No.1193 OF 2013
JUDGMENT:
This appeal is preferred against the judgment and decree dated 02.09.2013 in A.S. No.261/2012 on the file of the Court of the Chief Judge, City Civil Court, Hyderabad, confirming the judgment and decree in O.S. No.1179/2009 on the file of the Court of the IV Senior Civil Judge, City Civil Court, Hyderabad.
The appellant herein is the defendant in O.S. No.1179/2009. The said suit is filed by the respondents herein seeking a decree for recovery of possession of the suit schedule property. The plaintiffs also prayed for a decree for payment of damages of Rs.92,400/- together with interest @ 24% per annum from the date of the suit till the date of realization.
By judgment dated 29.06.2012 the trial Court decreed the suit holding that the plaintiffs are entitled for eviction of the defendant from the suit schedule property. So far as the prayer for damages is concerned, the plaintiffs were directed to move the Court under Order XX Rule 12 of C.P.C. seeking past and future damages.
Aggrieved by the said judgment the defendant/appellant herein filed A.S. No.261/2012. The plaintiffs also filed A.S. No.38/2013 contending that the finding recorded by the trial Court with regard to the quantum of rent is unsustainable and thus the trial Court was not justified in not granting the decree for mesne profits.
By judgment dated 2.9.2013 the lower appellate Court dismissed A.S.No.261/2012 preferred by the defendant and allowed A.S. No.38/2013 preferred by the plaintiffs. Hence this Second Appeal by the defendant.
We have heard the learned counsel for both the parties.
As could be seen from the material available on record, the plaintiffs claim title to the suit schedule premises and it is pleaded that the said premises was let out to the defendant on a monthly rent of Rs.6000/- in the year 2004 and that the tenancy was from month to month. It is pleaded that when the plaintiff No.1 requested the defendant to vacate the suit schedule premises claiming that the same is required for occupation of the plaintiff No.3, the defendant refused to vacate and on the other hand filed O.S.No.3142/2008 on the file of the Court of the V Junior Civil Judge, City Civil Court, Hyderabad for permanent injunction. Under the circumstances, the plaintiff got issued a notice dated 25.09.2008 under Section 106 of the Transfer of Property Act and the same was served on the defendant on 26.09.2008. The defendant got issued a reply with false and untenable allegations and therefore the plaintiffs were constrained to file the suit for recovery of possession. The defendant in his written statement admitted the relationship of landlord and tenant, however denied the plea of the plaintiffs that the agreed rent was Rs.6000/- per month. The allegation of default in payment of rents was also categorically denied. The plea of the plaintiffs that the suit schedule premises was required for bona fide requirement of plaintiff No.3 was also denied. On the basis of the said pleadings the trial Court settled the following issues for trial:
1) Whether the plaintiffs are entitled for eviction of the defendant from the plaint schedule property?
2) Whether the quantum of rent was Rs.3600/- and not Rs.6000/- per month?
3) Whether the defendant had committed default in payment of rents?
4) Whether the plaintiffs are entitled for past and future damages at Rs.12,000/- per month with interest at 24% p.a. ?
5) Whether there was attornment of tenancy by the plaintiffs with the defendant?
6) To what relief?
The plaintiffs 1 and 3 got themselves examined as P.Ws. 1 and 2 and one more witness was examined as P.W.3 on behalf of the plaintiffs and Exhibits A.1 to A.11 documents were marked to substantiate the suit claim. On behalf of the defendant D.W.1 was examined and Exhibits B.1 to B.6 documents were marked in evidence. On appreciation of the said oral and documentary evidence, the learned trial Judge held that the plaintiffs are entitled for eviction of the defendant from the plaint schedule property. So far as issue No.2 relating to the quantum of rent is concerned, the trial Court disbelieved the plea of the plaintiffs that the monthly rent was Rs.6000/- and a finding was recorded that the quantum of rent was Rs.3600/- per month. The trial Court further held that it is for the plaintiffs to take steps under Order XX Rule 12 of C.P.C. for ascertaining the past and future mesne profits.
Having accepted the title claimed by the plaintiffs in respect of the suit schedule premises, and having held that the quit notice dated 25.09.2008 was validly issued, the suit was decreed by the trial Court so far as the recovery of possession is concerned. Against the said judgment and decree the defendant preferred A.S.No.261/2012 and the plaintiffs preferred A.S. No.38/2013. The lower appellate Court heard both the appeals together and the following points were settled for consideration:
1) Whether the quit notice got issued by the plaintiffs/landladies to the defendant/tenant is valid? And, if so, whether the plaintiffs/landladies are entitled to a decree for eviction of the defendant/tenant from the plaint schedule property?
2) Whether the plaintiffs/landladies are entitled to the mesne profits as claimed in the suit? What shall be the appropriate order to be made in this regard?
3) In the facts and circumstances stated whether, the plaintiffs (landladies) had made out valid and sufficient grounds to set aside the finding in the judgment of the trial Court as regards the quantum of monthly rent?
4) Whether decree and judgment of the trial Court cannot be sustained under fact and law?
5) To what relief?
On re-appreciation of the evidence available on record the lower appellate Court held that the quit notice got issued by the plaintiffs was valid and accordingly confirmed the decree for eviction. So far as the quantum of rent is concerned, the lower appellate Court set aside the finding recorded by the trial Court that the monthly rent was Rs.3,600/- observing that since the issue of determination of past/future mesne profits was relegated to a later stage by the trial Court and it was left open for determination in an application to be filed in that regard by the plaintiffs, there is no need to go into the aspect of quantum of rent at that stage.
Assailing the said judgment and decree of the lower Appellate Court, it is vehemently contended by the learned counsel for the appellant that the Courts below ought not to have directed the plaintiffs to seek mesne profits under Order XX Rule 12 of C.P.C. when a specific issue was framed and evidence was let in by the parties with regard to the quantum of rent. It is also contended that the finding recorded by the Courts below that the quit notice was valid is incorrect, since the plaintiffs waived the quit notice issued under Section 106 of the Transfer of Property Act by acceptance of rent.
Having given my thoughtful consideration to the contentions advanced by the learned counsel for the appellant, and having gone through the material available on record, I do not find substance in any one of the above said contentions. Admittedly the title claimed by the plaintiffs is not in dispute and even the jural relationship between the plaintiffs and the defendant has not been disputed. It is also clear from the evidence produced before the trial Court that Ex.A1 notice was served on the defendant and a reply was also issued by him vide Ex.A-7. Under the circumstances, it was rightly held by the Courts below that the tenancy was properly terminated. Such a concurrent finding of fact cannot be held to be erroneous on any ground whatsoever. Even with regard to the quantum of rent is concerned, I am unable to hold that the lower appellate Court has committed any error in setting aside the finding of the trial Court. Having declined to grant a decree for damages and having granted liberty to the plaintiffs to take steps under Order XX Rule 12 of CPC for determination of mesne profits, as rightly held by the lower appellate Court the trial Court ought not to have recorded a finding with regard to the quantum of rent. In the facts and circumstances of the case, the lower Appellate Court is justified in holding that it is for the parties to lead necessary evidence in that regard as and when an application is made by the plaintiffs for determination of the mesne profits.
For the aforesaid reasons, in my considered opinion the interference by this Court is not warranted in exercise of the jurisdiction under Section 100 of C.P.C.
Accordingly, the Second Appeal is dismissed. No costs.
However in the facts and circumstances of the case, the appellant herein is granted two (2) months time from today for vacating the suit schedule premises subject to the condition of filing an undertaking to that effect before the trial Court within one week from today.
G.ROHINI, J Date: 24.01.2014 Mva