*THE HON’BLE MR JUSTICE L.NARASIMHA REDDY Second Appeal No.1209 of 2011 % 14.11.2011 Between: # M/s. Hazmer Infracon India Pvt. Ltd. …Appellant And $ V.Prabhakar Rao rep. by his G.P.A. A.V.Subba Rao …Respondent ! COUNSEL FOR PETITIONER: Sri A.M.Qureshi ^ COUNSEL FOR RESPONDENT : Sri S.Malla Rao < Gist: > Head Note: ? CITATIONS: THE HON’BLE SRI JUSTICE L.NARASIMHA REDDY Second Appeal No.1209 of 2011 JUDGMENT: The appellant is the lessee of the respondent in respect of the suit schedule premises. The lease commenced with two agreements, dated 15.09.2004; one for the premises and the other for fixtures, to be in force for 11 months. On expiry of that period, the respondent got issued a notice under Section 106 of the Transfer of Property Act. Since the appellant did not vacate the premises, the respondent filed O.S.No.1508 of 2006 in the Court of IV Senior Civil Judge, City Civil Court, Hyderabad for eviction of the appellant. The appellant on the other hand filed O.S.No.1609 of 2005 in the same Court against the respondent for perpetual injunction. Through a common judgment, dated 30.04.2009, the trial Court decreed O.S.No.1508 of 2006 and dismissed O.S.No.1609 of 2005. Aggrieved thereby, the appellant filed A.S.Nos.192 of 2009 against the decree in O.S.No.1508 of 2006 and A.S.No.202 of 2009 against the dismissal of O.S.No.1609 of 2005. Through a common judgment, dated 20.04.2011, the trial Court dismissed both the appeals. The second appeal is directed against the judgment and decree in A.S.No.192 of 2009. No second appeal is filed against the decree in A.S.No.202 of 2009. Heard the learned counsel for the appellant and the learned counsel for the respondent. The suits referred to above were tried together and the following issues were framed in O.S.No.1508 of 2006: 1. Whether the plaintiff is entitled for the relief of eviction of the defendant and recovery of possession from it as prayed for? 2. Whether the plaintiff is entitled to the relief of damages at the rate of Rs.20,000/- as prayed for? 3. Whether the plaintiff is entitled to the past and future mesne profits as prayed for? 4. Whether the plaintiff is entitled for mandatory injunction directing the defendant to remove the steel structures on the roof of schedule property as prayed for? On behalf of the respondent, P.W.1 was examined and Exs.A.1 to A.12 were filed. On behalf of the appellant, D.Ws.1 and 2 were examined and Exs.B.1 to B.17 were filed. On dismissal of the suit, appeals were preferred and the lower appellate Court framed the following points for consideration. 1. Whether the tenancy was renewed by the landlord, therefore the suit for eviction is not maintainable? 2. Whether the notice under Section 106 of T.P. Act issued by the landlord is not valid? 3. Whether the trial court committed any illegality in appreciating the evidence and facts on record? 4. Whether the judgment and decree dated 30-4-2009 is liable to be set aside? Both the appeals were dismissed. One serious procedural infirmity is noticed in the second appeal. As observed earlier, the appellant on the one hand and the respondent on the other hand filed two separate suits in respect of the same property. The suits were tried together and a common judgment was rendered decreeing the suit filed by the respondent and dismissing the one filed by the appellant. As rightly advised, the appellant filed two separate first appeals and both were dismissed. The same method ought to have been adopted at the stage of the second appeal also. Failure on the part of the appellant herein to prefer second appeal against one of the first appeals, would render the judgment of the first appellate Court final and in a way, it would operate as res judicata. Secondly, the appellant does not dispute the relationship of lessor and lessee between itself and the respondent. It is not a case, where the notice under Section 106 of the Act was issued during the subsistence of lease. Even if there was no default on the part of the appellant, it is liable to be evicted, once the respondent demanded, by issuing notice in Section 106 of the Act. One of the grounds urged by the learned counsel for the appellant is that a single suit is not maintainable in respect of two separate agreements viz., one for premises and the other for fixtures. However, as long as the two agreements are in relation to the same premises, it is permissible for the respondent to file a single suit. Another ground urged by the learned counsel for the appellant is that the owner of the premises did not enter the witness box and the deposition of the G.P.A. cannot be taken into account. However, it needs to be noted that the prohibition against a G.P.A. to depose to the facts on behalf of the principal is only where the acts and omissions spoken to by him, are of the principal himself. For instance, if certain acts were done by the principal himself and the G.P.A. was authorized only to institute proceedings or to depose as a witness, later on, the prohibition operates. In contrast, if the suit transaction itself was conducted or performed by the G.P.A. under proper authority, he can certainly speak to the acts pertaining thereto. The case on hand falls into the second category. Viewed from any angle, this Court does not find any basis to interfere with the concurrent findings recorded by the trial Court and the lower appellate Court. Learned counsel for the appellant submits that his client may be granted reasonable 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 second appeal is dismissed, however, granting time to the appellant till 30th June, 2012 to vacate the premises, subject to payment of rents regularly. There shall be no order as to costs. _________ 14.11.2011 Note: L.R.Copy to be marked. (B/o) JSU THE HON’BLE SRI JUSTICE L.NARASIMHA REDDY Second Appeal No.1209 of 2011 Date: 14.11.2011 JSU