THE HON'BLE SRI JUSTICE L. NARASIMHA REDDY SECOND APPEAL No. 1121 OF 2013 Dated:25-07-2014 Between:
Mohd. Qadeer ... APPELLANT AND Moinudding .. RESPONDENT THE HON'BLE SRI JUSTICE L. NARASIMHA REDDY SECOND APPEAL No. 1121 OF 2013 JUDGMENT:
The sole defendant in O.S No. 1382 of 2009 in the Court of the II Junior Civil Judge, City Civil Court, Hyderabad, filed this second appeal. The respondent filed the suit against the appellant for eviction from the suit schedule properties, after issuing notice under Section 106 of the Transfer of Property Act The trial Court decreed the suit through judgment dated 12-11-2009. Aggrieved by that, the appellant filed A.S No.31 of 2012 in the Court of II Additional Chief Judge, City Civil Court, Hyderabad. The appeal was dismissed on 23-09-2013. Hence, the second appeal.
Heard Sri Shiva Shanker Chowdhary, learned counsel for the appellant and Sri Mohd. Zia-ul-Haq, learned counsel fro the respondent.
The appellant did not dispute that he is the tenant of the respondent. However, there was some controversy as to the quantum of rent. The trial Court framed the following issues for consideration:
“1) Whether the plaintiff is entitled for eviction of suit schedule property and delivery of vacant possession as prayed for?
2) Whether the plaintiff is entitled to the mesne profits as prayed for?
3) To what relief?”
The respondent deposed as PW 1 and he filed Exs.A-1 to A-
3. The appellant deposed as RW 1 and did not file any documents. The suit was decreed by recording a finding that the trial Court has jurisdiction to entertain the suit and that the notice, Ex.A-1 is in accordance with law. On the suit being decreed, the appellant filed A.S No.31 of 2012. The lower appellate Court framed the following points for consideration:
“1. Whether the Civil Court has got jurisdiction to try the suit??
2. Whether the respondent/plaintiff is entitled for eviction of the appellant/defendant from the suit schedule property for delivery of vacant possession of the same and the Judgment under appeal is sustainable or liable to be set aside?”
The lower appellate Court dismissed the appeal concurring with the findings recorded by the trial Court.
The principal contention urged by the learned counsel for the appellant is that the lower appellate Court did not hear the arguments on behalf of the appellant.
It is, no doubt, true that in the preamble of its judgment, the lower appellate Court made an observation that the arguments on behalf of the appellant are treated as having been heard. To cover up any deficiency that may have occurred in that behalf, this Court gave full opportunity to the learned counsel for the appellant to advance arguments unhindered by the fact that it is a second appeal. The same contentions that were raised before the trial Court are repeated. The uncertainty that prevailed about the quantum of rent is sought to be projected. When the appellant raised the plea of absence of jurisdiction, heavy burden is rested upon him to prove that plea. Except his self-serving deposition, no other evidence was adduced.
The respondent, on the other hand, specifically pleaded that the trial Court has made extensive reference to the proceedings that ensued between the parties including R.C No. 227 of 2007. No steps were taken to file additional evidence under Rule 27 of Order XLI CPC, either before the appellate Court or before this Court. Notwithstanding the fact that the arguments were not advanced by the appellant, the lower appellate Court has undertaken extensive discussion touching all aspects. The appellant is not able to point out any factual or legal error in the judgments of the trial Court and the lower appellate Court.
This Court does not find any substantial question of law in this appeal. The second appeal is accordingly dismissed.
The learned counsel for the appellant submitted that the appellant be given adequate time to vacate the premises. The request is opposed by the learned counsel for the respondent.
Having regard to the facts and circumstances of the case, the appellant is granted time till the end of April 2015 subject to his filing an undertaking before the trial Court, within four weeks from today, to the effect that he would put the respondent in vacant possession of the premises on or before 30-04-2015 and that he shall also be under an obligation to pay the rents regularly.
The miscellaneous petitions filed in this second appeal shall also stand disposed of. There shall be no order as to costs.
L. NARASIMHA REDDY, J 25th July, 2014 ks