IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD TUESDAY, THE FIFTEENTH DAY OF JUNE TWO THOUSAND AND TEN HON’BLE SRI JUSTICE G. BHAVANI PRASAD Second Appeal No.174 of 2009 Between: Vaka Sivalinga Reddy .. Appellant AND Sanka Venkata Udaya Sankar .. Respondent JUDGMENT: The judgment and decree in A.S. No.51 of 2007 on the file of the Principal Senior Civil Judge’s Court, Tenali, dated 29-01- 2009 led the defendant in O.S. No.354 of 2003 on the file of the I Additional Junior Civil Judge’s Court, Tenali to file the second appeal. The factual background for the second appeal is that the respondent herein filed the suit against the appellant herein for possession of the plaint schedule property apart from damages of Rs.6,000/- per month from 01-04-2003 till the respondent herein is put in possession of the property and for costs. The respondent claimed to be the absolute owner of the suit property which was taken on lease by the appellant in 1986 for running Adilakshmi Metal Stores for a monthly rent of Rs.2,000/-. The respondent claimed to be intending to start his own business in the premises and to have issued a notice under Section 106 of the Transfer of Property Act on 04-03-2003 terminating the tenancy with effect from the mid night of 31-03-2003. The appellant was claimed to have not vacated the premises and to be, therefore, liable for the suit reliefs. The appellant resisted the suit contending that the respondent, who is an employee, does not bona fide require the premises for any business of his own, while he himself was solely dependent upon the income from the business for his livelihood. He claimed the prevailing market rate of rent for similar premises in the locality to be only Rs.2,000/- per month and he also questioned the validity and legality of the notice to quit. The trial Court framed issues on the propriety of the suit notice and entitlement of the respondent for eviction and damages. During the trial, P.W.1 and D.W.1 were examined and Exs.A.1 to A.42 were marked. The trial Court in its judgment, dated 25-04-2007 held that the ownership of the property with the respondent and the tenancy of the appellant for a monthly rent of Rs.2,000/- since 1986, are admitted. The trial Court also observed that the oral lease is not governed by the Andhra Pradesh Buildings (Lease, Rent and Eviction) Control Act, 1960, the monthly rent being more than Rs.1,000/- and the notice to quit was considered by the trial Court to be in tune with the statutory provision, as it clearly gave fifteen days notice to vacate. The trial Court also concluded that the amendments made to the Andhra Pradesh Buildings (Lease, Rent and Eviction) Control Act, 1960 in 2005 are not applicable to the present dispute, as the amendments are only prospective in nature and consequently, the trial Court concluded the respondent to be entitled to evict the appellant and get possession. The trial Court also, while considering the question of damages, observed that the defendant/appellant herein himself in the evidence as D.W.1 admitted that the rent for any shop like the suit schedule shop will be Rs.6,000/- per month by the time of his deposition. The shop was admitted to be at the heart of the town and the Madras terraced building in an extent of 95 square yards was considered by the trial Court to be, therefore, capable of fetching such a rent, at which rate damages can be awarded to the respondent. Accordingly, the trial Court decreed the suit as prayed for. In appeal, the Principal Senior Civil Judge, Tenali in her judgment, dated 29-01-2009 followed the decision of a Larger Bench of this Court in Ramvilas Bajaj v. Ashok Kumar[1] and concluded that the civil Court alone had jurisdiction to decide the dispute, the amendments to the Andhra Pradesh Buildings (Lease, Rent and Eviction) Control Act, 1960 in 2005 being only prospective in nature. The first appellate Court also considered that in the light of Order XX Rule 12 of the Code of Civil Procedure concerning future mesne profits and in the light of the decision in St. Mary’s Educational Society rep. by its Secretary and others v. Dr. Qutubuddin Ahmed and others[2], the Court cannot straight away fix future profits subsequent to the suit without following Order XX Rule 12 of the Code of Civil Procedure and therefore, the first appellate Court interfered with the judgment and decree of the trial Court to the extent of awarding future profits at Rs.6,000/- per month from the date of the suit till the date of delivery of possession and directed the same to be decided on separate application. The parties were directed to bear their own costs in the appeal. The defendant filed this second appeal contending that substantial questions of law are about the jurisdiction of the civil Court to entertain the suit in the light of the amendments made to the Andhra Pradesh Buildings (Lease, Rent and Eviction) Control Act, 1960 and also about the validity of the notice to quit under Section 106 of the Transfer of Property Act. The defendant also contended that in the absence of proof of bona fide requirement, any relief of possession could not have been granted and without holding the defendant to be in unlawful and unauthorized possession, any mesne profits at Rs.6,000/- could not have been granted. Heard Sri M.V.S. Suresh Kumar, learned counsel for the appellant and Sri J. Bhaskar Rao, learned counsel representing Sri V.S.R. Anjaneyulu, learned counsel for the respondent. The questions that arise in the second appeal are: 1. Whether the civil Court has no jurisdiction in view of the amendments made to the Andhra Pradesh Buildings (Lease, Rent and Eviction) Control Act, 1960 by the Andhra Pradesh Buildings (Lease, Rent and Eviction) Control (Amendment) Act 17 of 2005 ? 2. Whether the notice to quit is not legal and valid ? 3. Whether the future mesne profits could have been quantified as done ? Point No.1: The decision of a five-Judge Bench of this Court by majority of four Judges in Ramvilas Bajaj v. Ashok Kumar (1 supra) still holds the field and it was concluded that the amendments are only prospective in operation and will not affect the pending proceedings in the civil Courts even at the appellate, revisional or executing levels. It was positively held that all pending proceedings are required to be decided without reference to and application of the provisions of the Andhra Pradesh Buildings (Lease, Rent and Eviction) Control (Amendment) Act 17 of 2005. Though it is stated that the matter was further carried to the Supreme Court, the Apex Court had admittedly not suspended the operation of the judgment so far. In the absence of any order of suspension, mere filing of appeal before the Apex Court will not operate as suspension and the five-Judge Bench judgment being in force, this Court is bound by the ratio of the same and has to consequently conclude that the civil Court alone has jurisdiction to entertain the suit in the present case and not the Rent Controller. Point No.2: In so far as the notice to quit under Section 106 of the Transfer of Property Act is concerned, whether the landlord has any bona fide requirement for the premises or not or whether the tenant is solely dependent for his livelihood on the activity being carried in the rented premises, are not relevant questions and the notice to quit to be enforceable has to only satisfy the statutory requirements of Section 106 of the Transfer of Property Act and nothing more or nothing less. The trial Court has analysed the notice to quit and found that it was giving fifteen clear days notice to vacate terminating the lease by the mid night of 31-03-2003 and there was absolutely no legal or factual absurdity in the notice to quit. It had, in fact, referred to the precedents on this aspect and concluded that any reference to the bona fide requirement of the landlord or any other considerations do not arise. The reasoning of the trial Court was not in any way deviated from in the judgment of the first appellate Court and there is absolutely no reason for this Court to take any different view on fact or in law. Therefore, it has to be concluded that the notice to quit is valid and legal. Point No.3: The trial Court, of course, has straight away awarded damages at the rate of Rs.6,000/- per month not only for the month of April, 2003 prior to the suit but also for the subsequent period in future from the date of the suit till the date of delivery of possession of the property to the respondent herein. For this purpose, the trial Court relied on the admissions of the defendant as D.W.1 about the possibility of the suit shop fetching the rent at Rs.6,000/- per month in view of its location, extent and constructed area, etc. However, as pointed out by the first appellate Court following the decision in St. Mary’s Educational Society rep. by its Secretary and others v. Dr. Qutubuddin Ahmed and others (2 supra), the provisions of Order XX Rule 12 of the Code of Civil Procedure were observed to be mandatory in nature. The provisions of Sub-rule (2) of Rule 12 of Order XX of the Code of Civil Procedure were interpreted by the Courts to be requiring an enquiry concerning the mesne profits subsequent to institution of the suit without straight away arriving at any particular quantum without any such enquiry. It should also be noted that future mesne profits up to the delivery of possession of the property to the decree holder could not have remained static and keeping in view the ever increasing inflation and rising prices, the probable rent that the property will be fetching can be reasonably believed to be progressively increasing. Therefore, confining to a particular quantum at the inception without any enquiry is not in tune with the interests of justice and the direction of the first appellate Court to have the future mesne profits decided on a separate application, therefore, appears to be in consonance with the established legal principles and without quantifying the future mesne profits, the first appellate Court’s judgment and decree have to be affirmed under the circumstances. While so, Sri M.V.S. Suresh Kumar, learned counsel for the appellant submitted that in case, the appellant is being asked to vacate the property, he may be granted a reasonable time to vacate, as he is solely dependent on the income from Adilakshmi Metal Stores run in the subject premises for the livelihood of himself and his family. The appellant is admittedly a tenant in the property since 1986 and it will be obviously a significant dislocation for him to discontinue the business from such premises after about 24 years and to avoid any adverse effect of sudden dislocation, it will better in the interests of justice to grant him a reasonable time, though Sri J. Bhaskar Rao, learned counsel for the respondent vehemently opposed grant of any extraordinary time for vacating the premises. Striking a reasonable balance between the rights and interests of both parties and the need not to deprive the appellant of his livelihood from the business he was carrying on since more than 24 years, grant of six months time to vacate can be considered to be reasonable and just. Therefore, the second appeal is dismissed without costs, but the appellant is granted six months time from today to vacate the subject premises and deliver vacant possession of the same to the respondent. _____________________ G. BHAVANI PRASAD, J Date: 15-06-2010 Svv [1] 2007 (4) ALD 137 [2] AIR 2007 AP 156