THE HON'BLE SRI JUSTICE ASHUTOSH MOHUNTA SECOND APPEAL No. 788 OF 2013 Dated:12-06-2014 Between:
Smt. G. Sumalatha ... APPELLANT AND Smt. N.G. Satyavathi .. RESPONDENT THE HON'BLE SRI JUSTICE ASHUTOSH MOHUNTA SECOND APPEAL No. 788 OF 2013 ORDER:
This second appeal is filed aggrieved by the judgment dated 13-03-2013 passed in A.S No. 98 of 2012 by the learned X Additional Chief Judge (Fast Track Court), City Civil Court, Hyderabad confirming the judgment and decree dated 10-02-2012 in O.S No. 5417 of 2009 on the file of the learned XV Junior Civil Judge, City Civil Court, Hyderabad.
The respondent – plaintiff filed the aforesaid suit under Section 26 read with Order VII Rule 1 CPC seeking eviction of the appellant - defendant from the suit schedule premises bearing No.2-2-647/185/A, Street No. 3, Sharada Nagar, Bagh Amberpet, Hyderabad and handover vacant and physical possession of the same to her and to award mesne profits. The respondent contended that she is the absolute owner of the suit schedule premises, that the appellant approached her in July 2006 and sought the property on rental basis for residential purpose stating that she is a house wife and her husband is employed. The respondent agreed to let out the premises on oral agreement for Rs.7,000/- per month exclusive of water, electricity and other charges from August 2006. It was alleged by the respondent that though the premises was let out for residential purpose, when she visited the premises after some time she was shocked to note that the appellant is running business in the name of “Sri Agasthiya Maha Tuhlliya Nadi Jyothida Nilayam” along with her husband and there were other employees. On protest, the appellant is stated to have promised the respondent that she would shift the commercial activities, but however the matter was protracted without complying with the same and the business activity was continued. It was further alleged that suppressing the real facts, the appellant filed O.S No. 1528 of 2008 seeking perpetual injunction against the respondent. According to the respondent, the appellant changed the usage of premises and also committed default in paying the rent and, therefore, she issued legal notice dated 11-08-2008 calling upon the appellant to vacate and handover the physical possession of the suit schedule premises on or before 01-09-2008 failing which the possession will be treated as illegal and unauthorized treating the appellant as trespasser and liable to pay damages at the rate of Rs.750/- per day. The notice is said to have been returned with endorsement “no such person”. According to the respondent, the appellant deposited rent into her bank account without her knowledge. The appellant filed her written statement contending that at the time of letting out the premises itself, the respondent was aware of Nadi Jyothism being conduced by her husband and that it is not a commercial activity and not a source of income, that she is regular in paying rents. It is her case that the respondent bore grudge and harassed her and unable to bear the harassment, she filed a suit in O.S No. 1528 of 2008. It is her specific case that she did not receive any notice and she came to know of initiation of suit only when she received summons of eviction.
Based on the pleadings of the parties, the following issues were framed by the trial Court:
“1) Whether the plaintiff is entitled for eviction of defendant from suit schedule property?
2) Whether the plaintiff is entitled for past and future mesne profits as prayed for with interest at the rate of 12% p.a from the date of suit till the date of realization?
2) To what relief?”
In order to prove her case, the respondent examined herself as PW 1 and got marked Exs.A-1 to A-3. On behalf of the defendant, DWs 1 and 2 were examined and Ex.B-1 was got marked.
The trial Court after hearing both sides and considering the material on record held that as the notice issued by the respondent is a valid one, she is entitled for eviction of the appellant from the suit schedule premises and accordingly decreed the suit with costs and directed the respondent to file a separate application under Order XX Rule 12 CPC to ascertain the mesne profits from the date of termination of tenancy.
Aggrieved by the judgment and decree passed by the trial Court, the appellant carried the matter in appeal before the learned X Additional Chief Judge (Fast Track Course), City Civil Court, Hyderabad and the same was also dismissed confirming the judgment and decree passed by the trial Court.
Heard the learned counsel for the appellant – defendant and perused the record.
It is the case of the respondent that the suit schedule premises was let out to the appellant orally at the rate of Rs.7,000/- per month for residential purpose and since the appellant is running business in the name “Sri Agasthiya Maha Thulliya Nadi Jyothida Nilayam” and in spite of issuing legal notice did not vacate the premises, she is entitled to evict her and, therefore, sought her eviction. Whereas, it is the case of the appellant that the respondent is well aware of conducting of Nadi Jyothisam by her husband at the time of letting out of the premises and there are no arrears of rent and that she has not received any legal notice as contended by the respondent.
Even though the appellant has specifically raised a plea that she has not received any legal notice and the respondent managed to return the postal cover with an endorsement ‘no such person’, no suggestion with regard to the same was made to the respondent - PW 1 during the course of her examiantion. Further, as rightly held by the lower appellant Court, under Section 27 of the General Clauses Act, any document to be served by post, the service shall be deemed to be effected by properly addressing, prepaying and posting by a registered post and unless the contrary is proved, the same should be treated as served. Thus, the respondent proved service of legal notice Ex.A-2 on the appellant. Since the respondent issued legal notice under Section 106 of the Transfer of Property Act, bona fide requirement need not be established by her.
In the circumstances, both the Courts below are justified in passing decree against the appellant. The findings of fact recorded by both the Courts below do not give rise to any question of law much less substantial question of law warranting interference of this Court.
It is well settled that under Section 100 CPC jurisdiction of this Court to entertain a second appeal is confined only to such appeals which involve a substantial question of law and it does not confer any jurisdiction on this Court to interfere with pure questions of fact while exercising its jurisdiction under Section 100 CPC.
The second appeal is accordingly dismissed. However, the appellant is granted time up to 30-09-2014 for vacating the suit schedule premises.
Miscellaneous petitions, if any, pending consideration shall stand closed. No order as to costs.
ASHUTOSH MOHUNTA, J 12th June, 2014 ks