THE HON'BLE SRI JUSTICE L. NARASIMHA REDDY SECOND APPEAL No. 365 OF 2013 Dated:24-12-2014 Between:
M/s. Prathyusha Exports Pvt. Ltd., rep., by its Managing Director Ch. Krishna, son of late Shankariah, aged 53 years, Occ: Business, R/o. H.No.3-3-465, Narayanguda, Hyderabad and another ... APPELLANTS AND Sri Manoj Tadepalli and another .. RESPONDENTS THE HON'BLE SRI JUSTICE L. NARASIMHA REDDY SECOND APPEAL No. 365 OF 2013 JUDGMENT:
This second appeal is preferred against the concurrent judgments rendered by the Court of XI Additional Senior Civil Judge (Fast Track Court), City Civil Court, Hyderabad in O.S No. 1819 of 2005 and that of the Court of the IX Additional Chief Judge (Fast Track Court), City Civil Court, Hyderabad in A.S No. 35 of 2010.
The defendants are the appellants. The respondents are brothers. They filed the suit for eviction of the appellants. It was pleaded that their mother by name Smt. Sheela Rao was the owner of the suit schedule premises and that the same was given on rent to the appellants. Their mother died in the year 2001 and thereafter they became owners. The case of the respondents was that though a quit notice dated 07-01-2005, Ex.A-8 was issued requesting the respondents to vacate the premises, they did not vacate the premises. They further pleaded that in spite of serving notice dated 28-10-2002 Ex.A-4, informing the factum of death of their mother, rents were not paid to them at all till the suit was filed.
The appellants filed a written statement opposing the suit. It was pleaded that the 2nd appellant alone is the tenant and the 1st appellant has nothing to do with the premises. The legal capacity of the respondents was doubted. A plea was also raised to the effect that the rent for the premises is Rs.3,500/- and that the civil Court has no jurisdiction to entertain the suit.
The trial Court decreed the suit through its judgment dated 16-11-2009. Aggrieved by that, the appellants filed A.S No. 35 of 2010 in the Court of IX Additional Chief Judge (Fast Track Court), City Civil Court, Hyderabad. The appeal was dismissed on 06-02-2013. Hence this appeal under Section 100 CPC.
Sri K. Anoop Kumar, learned counsel for the appellants submits that though a specific plea was raised touching on the jurisdiction of the Court, namely, quantum of rent, the trial Court did not frame any issue nor the lower appellate Court appreciated the ground in that behalf. He submits that PWs 1 and 2 were not able to substantiate their plea that the rent was more than Rs.3,500/- per month and despite that, the suit was decreed. Other grounds are also urged by the learned counsel for the appellants.
Sri M.S. Srinivasa Iyengar, learned counsel for the respondents, on the other hand, submits that except that a vague plea was raised to the effect that the rent was Rs.3,500/- per month, it was not even established that any rent was paid at all. He submits that two cheques marked as Exs.A-1 and A-11 were issued by the appellants themselves for various amounts and even those cheques were dishonoured. It is urged that the parties were aware of the area of controversy and evidence was adduced even as to quantum of rent and DW 2 has simply stated that he does not know that the rent was Rs.4,150/- per month, whereas DW 1 did not come forward with any specific evidence in that behalf. He contends that the concurrent findings recorded by both the Courts below do not warrant interference and that no question of law arises for consideration.
The suit was filed by the sons of the original owner of the premises. The fact that the premises were leased is not at all disputed. The only controversy was that the lessee was the 2nd appellant alone and that the 1st appellant has nothing to do with it. Another contention was that the rent was only Rs.3,500/- per month and the suit is not maintainable. The trial Court framed the following issues for consideration:
“1. Whether the plaintiff is entitled for relief of eviction of defendants from premises No.3-4-465, Narayanaguda, Hyderabad as prayed for?
2. Whether the plaintiffs are entitled for Rs.1,72,800/- towards arrears of rents?
3. Whether the plaintiffs are entitled for damages of Rs.8,000/- per month?
4. To what relief?”
On behalf of the respondents, PWs 1 and 2 were examined and Exs.A-1 to A-11 were filed. On behalf of the appellants, DWs 1 and 2 were examined but no documents whatever were filed. The trial Court decreed the suit and in the appeal preferred by the respondents, the lower appellate Court framed the following points for consideration:
“1. Whether the trial court committed any error in concluding that quit notice i..e, Ex.A.8 dt. 7-1-2005 issued by the plaintiffs is valid under law and directing the defendants to vacate the suit property?
2. Whether the trial court committed any error in awarding decree for recovery of arrears of rent of Rs.53,950/- and future damages @ Rs.4,150/- from the date of suit with 15% enhanced rent for every three years till the date of delivery of the suit property?
3. Whether the judgment and decree of the trial Court suffer from any irregularity or illegality?”
The appeal was dismissed. Two aspects become relevant in this second appeal. The first is about the quantum of rent. The second is on the merits as to the liability of the appellants to be evicted.
This is a typical case in which a tenant took advantage of the death of the landlady. The 2nd appellant deposed as DW 1. He did not dispute that he took the premises on lease from the mother of the respondents. In his evidence, however, he stated that he has been paying rent only to the mother of the respondent and nobody else. When he was told about the fact that she died in the year 2001, he said that he did not pay rents to anyone ever since then. It is important to note that the suit was filed in the year 2005 and that was preceded by a notice issued in the year 2002 (Ex.A-4) informing about the death of Sheela Rao and intimation to pay the rents to the respondents. The appellants did not act upon that. Ultimately when quit notice marked as Ex.A-8 was issued, a technical plea was raised stating that the 1st appellant is not the tenant at all and the 2nd appellant is not its Managing Director. Assuming that the 1st appellant has nothing to do with the premises, the 2nd appellant who did not dispute that he is the tenant could have responded to it.
Even while disputing the very entitlement of the respondents to seek eviction, a plea was raised as to the quantum of rent.
It is no doubt true that the trial Court did not frame any issue on this aspect. The fact however remains that every witness examined on behalf of both the parties dealt with that very aspect. PWs 1 and 2 were consistent in their plea that the rent was Rs.4,150/- per month. Except denying, the 2nd appellant as DW 1 did not place any material whatever before the Court and DW 2 feigned ignorance about the quantum of rent when a suggestion was made in the cross examination.
Since the plea as to the quantum of rent was raised by the appellants, the burden squarely rests upon them to prove it. Not a single document was filed by them. The 1st appellant is an income tax assessee. In case, the rent of Rs.3,500/- per month or less amount was being paid relevant returns would have been filed.
One important aspect is that when the demand for payment of arrears of rent was made, at one point of time, the 2nd appellant as Managing Director of the 1st appellant issued cheque Ex.A-2 for a sum of Rs.11,300/-. No period is mentioned about it, much less the monthly rent. That cheque was dishonoured and the same resulted in filing of a complaint under Section 138 of the Negotiable Instruments Act. Another cheque Ex.A-11 was issued in 2001 and even that was not honoured. Thus, except making bald statement that the rent was Rs.3,500/- per month, the appellants were not even able to establish that they have paid the rent at that rate at any point of time.
It is fairly well established that where the parties understood the area of controversy and adduced evidence in relation to that, the mere fact that an issue was not framed does not affect the adjudication.
Now coming to the second aspect. Though the appellants wanted to create a semblance of controversy or confusion as to the person or agency who is the tenant, it ultimately emerged that the 2nd respondent took the premises on rent and he is the Managing Director of the 1st appellant. It is not in dispute that the 1st appellant-company is being run in the premises.
Notice under Section 106 of the Transfer of Property Act was issued before the suit was instituted. Though the ground of default in payment of rents was pleaded and proved, that hardly makes any difference when eviction is sought by issuing notice under Section 106 of the Transfer of Property Act. On 18-04-2013, this Court granted interim order subject to the condition of the appellants depositing Rs.53,950/- which was determined as arrears of rent. Even that amount is said to have been not paid. This Court does not at all approve the conduct of the appellants and they have put the legal process to gross misuse.
The second appeal is accordingly dismissed.
Learned counsel for the appellants made a request for reasonable time for the appellants to vacate the premises. The request is strongly opposed by the learned counsel for the respondents.
Having regard to the facts and circumstances of the case, the appellants are granted time till 30-06-2015 subject to their clearance of arrears of rent within four weeks from today and payment of rents regularly at the rate of Rs.4,150/- per month. If they commit default in payment of any of the amounts, it shall be open to the respondents to execute the decree.
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 24-12-2014 ks Note:
LR Copy to be marked.
B/O ks