IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD THURSDAY, THE EIGHTEENTH DAY OF AUGUST TWO THOUSAND AND ELEVEN HON’BLE SRI JUSTICE G. BHAVANI PRASAD Second Appeal No.166 of 2011 Between: Akber, .. Appellant AND T. Venkata Rangaiah .. Respondent JUDGMENT: The Second Appeal is directed against the judgment and decree in A.S.No.58 of 2010 dated 07-12-2010 on the file of the Court of II Additional Chief Judge, City Civil Court, Hyderabad, by which the judgment and decree in O.S.No.5536 of 2001 dated 30-11-2009 on the file of the Court of XVI Junior Civil Judge-cum- IV Additional Rent Controller, City Civil Court, Hyderabad were confirmed. The parties are referred to herein as they are arrayed in the suit. The plaintiff filed O.S.No.5536 of 2001 for eviction of the defendant and recovery of future mesne profits and damages and compensation for wrongful use and occupation from him, alleging that the defendant was the tenant of the suit shop under the plaintiff from 01-04-1984 and was paying a rent of Rs.1147/- per month till the termination of his tenancy. The plaintiff claimed to have issued a legal notice on 10-09-2001 desiring the defendant to vacate the premises by 30-09-2001, which notice was served on the defendant on 13-09-2001. The plaintiff, while reserving his right to sue the defendant concerning the property tax and electricity charges etc., if they were in arrears, sought for recovery of damages and compensation from October 2001 at Rs.7,000/- per month since the termination of the tenancy by the legal notice. The plaintiff also claimed that the alleged agreement of sale in favour of the defendant is false, and hence, he is entitled to evict the defendant and to recover damages at Rs.7,000/- per month with interest at 18% p.a. The defendant resisted the suit contending that he was originally a tenant under a lease deed under the plaintiff, who was a minor at the commencement of lease and he also kept a security deposit of three months rent at Rs.475/- and a lump sum amount of Rs.25,000/- with the plaintiff. He denied any right for the plaintiff to terminate the tenancy and also contended that on 09-07- 2001, there was an oral agreement of sale between the parties for a total sale consideration of Rs.2,60,000/- with the plaintiff receiving Rs.20,000/- as earnest money. The defendant claimed to be always ready and willing to perform his part of contract under the said oral agreement of sale and claimed to have issued a notice on 05-09-2001 demanding specific performance. Therefore, the defendant desired the suit to be dismissed with costs. The plaintiff by filing a specific rejoinder/written statement denied all the allegations against the counter claim for specific performance and denied all the allegations all over again. The trial Court framed the following issues for trial: 1) Whether this court has jurisdiction to try the suit as contended by the defendant? 2) Whether the plaintiff is entitled for eviction of the defendant? 3) Whether the plaintiff is entitled to claim mesne profits at Rs.7,000/- per month with interest at 18% per annum exclusive of the electricity and other charges from 01-10- 2001 till the date of possession? 4) Whether the defendant is entitled for specific performance of oral agreement of sale dated 09-07-2001 in respect of the suit property? 5) To what relief? Issues were recast on 02-08-2005 as follows: 1) Whether the plaintiff is entitled for eviction of the defendant? 2) Whether the plaintiff is entitled to claim mesne profits at Rs.7,000/- per month with interest at 18% per annum exclusive of the electricity and other charges from 01-10- 2001 till the date of possession? 3) To what relief? During trial, the trial Court examined PW.1 and DWs.1 and 2 and marked Exs.A.1 to A.16 and Exs.B.1 to B.84. The trial Court rendered its judgment, firstly noting that the admitted tenancy of the defendant is from month to month and concluding that the legal notice dated 10-09-2001 delivered at the residential address of the defendant to his wife is a valid notice under Section 106 of the Transfer of Property Act, 1882. The trial Court also held that the plaintiff failed to establish any non- payment of property tax by the defendant and the determination of mesne profits was left to a separate enquiry under Order 20 Rule 12 of the Code of Civil Procedure. The trial Court accordingly granted three months time to the defendant to vacate the premises. In A.S.No.58 of 2010 filed against the said judgment and decree, the First Appellate Court delivered the impugned judgment again referring to the rival contentions and the evidence on record as well as the decision of the trial Court. The First Appellate Court referred to the grounds of challenge raised by the defendant and the grounds of cross-objections raised by the plaintiff concerning the denial of costs of the suit. The First Appellate Court in the impugned judgment noted the admitted relationship of landlord and tenant between the parties in respect of the subject premises, which relationship was sought to be put to an end by the plaintiff through a quit notice dated 10-09-2001. Noting that the quit notice was served on the defendant, the First Appellate Court opined that the tenancy was legally and validly terminated with effect from 30- 09-2001, due to which he is liable to be evicted from the premises. The First Appellate Court also opined that there was a security deposit and the non-refund of security deposit by the landlord will not entitle the tenant to continue in possession of the property. The First Appellate Court also disbelieved the alleged oral agreement of sale set up by the defendant like the trial Court and also found it not justified not to grant the costs of the plaintiff in the suit. Therefore, it allowed the cross-objections, while dismissing the appeal by the defendant with costs and it is against the said judgment and decree that the second appeal had arisen at the instance of the defendant. The defendant raised a new plea in the grounds of appeal about the applicability of the Andhra Pradesh Buildings (Lease, Rent and Eviction) Control Act, 1960 to the tenancy in question in view of the amendment made to the provisions of the said Act by an Amendment Act of 2005. The defendant contended that the amendment is of retroactive operation in nature and therefore, the Civil Court lost its jurisdiction to determine the matter. Therefore, the defendant desired the judgments and decrees of the Trial and First Appellate Courts to the extent they went against him to be reversed. This Court while admitting the second appeal framed two substantial questions of law arising in the second appeal relating to retroactive operation of the Amendment Act of 2005 and the consequential loss of jurisdiction of the Civil Court with reference to Section 10 of the Andhra Pradesh Buildings (Lease, Rent and Eviction) Control Act, 1960 as amended. Sri K. Arun Kumar, learned counsel representing Sri R.A. Achuthanand, learned counsel for the appellant-defendant and Sri S. Balchand, learned counsel for the respondent-plaintiff are heard. Sri S. Balchand, learned counsel for the respondent-plaintiff straight away relied on the Larger Bench decision of this Court in Ramvilas Bajaj v. Ashok Kumar and another and batch[1], wherein the Larger Bench by a majority of 4:1 (to which judgment I was a party) held that Section 32 (c) of the Andhra Pradesh Buildings (Lease, Rent and Eviction) Control Act, 1960 as brought into force by Section 3 of the Act is prospective in operation and this provision does not affect the proceedings pending as on the date of its coming into force before the Civil Courts or Appellate, Revisional or Executing Courts. These cases are required to be decided without reference to and application of the provisions of the Amendment Act of 2005. The decision of the Larger Bench is stated to be under consideration of the Hon’ble Supreme Court as of now. The decision of the Larger Bench continues to hold the field and is binding on this Court in determining the second appeal. Sri S. Balchand, learned counsel, also referred to State Bank of India v. S.N. Goyal[2] wherein the Apex Court pointed out that where there is a clear and settled enunciation on a question of law by the High Court concerned, it cannot be said that the case involves a substantial question of law. So, applying the said principle, it is no longer open to the defendant-appellant to contend herein about any application of the Amendment Act of 2005 to exclude the jurisdiction of the Civil Court in the matter, apart from the fact that this question was never raised by the defendant-appellant before the First Appellate Court. The findings of fact by the trial and First Appellate Courts are not susceptible to any interference in the second appeal they being pure questions of fact not involving any shade of any question of law, more so, in the absence of the defendant- appellant throwing any challenge to the conclusions of fact in the memorandum of grounds of second appeal. While the second appeal should, therefore, fail, Sri K. Arun Kumar, learned counsel for the defendant-appellant made a request for grant of a reasonable time to the defendant-appellant to vacate the premises as he is running his business in the schedule premises, which is the only source of his livelihood and as it would take considerable time to secure a suitable alternative accommodation to continue the business. Sri S. Balchand, learned counsel for the plaintiff-respondent, brought to notice that the termination of tenancy was by 30-09-2001 and notwithstanding the passage of almost a decade, the landlord was unable to recover possession of his own shop. Striking a reasonable balance between the rights and interests of both parties and due to the justification for granting a reasonable time for the defendant to secure a suitable alternative accommodation to continue his business, he can be granted time for six (6) months from today subject to his filing an undertaking affidavit to vacate the premises before the expiry of such period. Sri S. Balchand, learned counsel for the respondent-plaintiff, also brought to notice that by virtue of orders of this Court in the Civil Revision Petition, he has to pay Rs.3,500/- per month towards occupation of the premises and it is needless to emphasize that if the defendant-appellant is bound by any such orders of this Court in any such Civil Revision Petition, he shall continue to comply with the said orders till he vacates the premises. Accordingly, the Second Appeal is dismissed without costs and the defendant-appellant is granted time for six (6) months from today to deliver vacant possession of the said premises to the plaintiff-respondent subject to his filing an undertaking affidavit before the trial Court within fifteen (15) days from today undertaking to vacate the premises before the end of the said period of six months and if the defendant-appellant is bound by any orders of this Court in any other proceedings to pay any specified sum towards damages for use and occupation or mesne profits, he shall continue to pay the same till he vacates the premises. _____________________ G. BHAVANI PRASAD, J Date: 18-08-2011 Ksn [1] 2007 (4) ALD 137 [2] 2008 (8) SCC 92