IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) FRIDAY, THE TWENTY SEVENTH DAY OF NOVEMBER TWO THOUSAND AND NINE PRESENT HON'BLE SRI JUSTICE A.GOPAL REDDY SECOND APPEAL No.1036 of 2009 Between: M/s.Indian Paint Stores, represented by its Partner Audireddi Krishna Rao and another. … Appellants And Gullipalli Kasturi. … Respondent This Court made the following: HON’BLE SRI JUSTICE A.GOPAL REDDY SECOND APPEAL No. 1036 OF 2009 ORDER:- This appeal by the defendants is directed against the judgment and decree dated 05.10.2009 passed in A.S.No.9 of 2007, by the Principal Distinct Judge, Rajahmundry, whereby the first appeal filed by the defendants has been dismissed confirming the judgment and decree of IV Additional Junior Civil Judge, Rajahmundry, dated 09.11.2006 in decreeing the suit O.S.No.1166 of 2002 filed for eviction and possession of the suit schedule property by the plaintiff. For the sake of convenience, the parties hereinafter will be referred to as per their array in the suit. Plaintiff filed the suit for delivery of possession of ground floor of the schedule building bearing D.No.36-10- 32f situated in Innespeta, Rajahmundry, after ejecting the defendants therefrom and for grant of damages alleging that she is the absolute owner of the schedule property, which was taken on a oral lease by defendant No.1 at the rate of Rs.1,500/- per month, payable by 1st of every succeeding month. When the plaintiff wanted the schedule property for her personal occupation, she got issued a legal notice on 28.07.2002, determining the lease by the end of August, 2002. But according to plaintiff instead of noting the date as 28.07.2002, it was noted as 28.08.2002. The defendants received the notice on 01.08.2002 and got issued a reply through their advocate. Subsequently, defendant No.2 got issued another reply on 28.07.2002 with false allegations. Hence, the suit. Defendant Nos.1 and 2 filed written statement adopted by defendant Nos.3 and 4, admitting the relationship of landlord-tenant and also the quantum of rent. Defendant No.1 firm is not registered firm and it has no juridical status and defendant No.3 is not a partner of it and he is not a necessary party to the suit. Further, in the year 1986, there was an agreement between defendant No.2 and the mother of the plaintiff that the tenancy would be perpetual in nature and after her death, defendant Nos.1 to 4 are continuing in possession and, therefore, the tenancy is not month to month terminable by 15 days notice. Plaintiff executed a letter dated 07.08.2000 in favour of defendant No.1 admitting the tenancy as perpetual and not terminable by any notice and hence, she is not entitled to seek eviction. The defendants paid the rents and not committed any default and the requirement of the premises by the plaintiff is not bona fide. The defendants got renovated the building by spending a sum of Rs.40,000/- and hence, they are not liable to pay damages. Basing upon the pleadings, the trial court framed the following issues for trial: 1. Whether the tenancy is perpetual as contended by defendant and whether such perpetual tenancy of plaint schedule property is valid? 2. Whether defendants spent Rs.40,000/- towards renovation of schedule properties and whether any agreement as its repayment etc., as claimed in the written statement is in existence and if is existence what is its effect? 3. Whether D3 is not a partner in D1 firm and the suit against D3 is not maintainable as contended in written statement? 4. Whether the notice for termination of tenancy is valid? 5. Whether D1 cannot be signed being not a registered partnership firm as stated in the written statement? 6. Whether the plaintiff is entitled for recovery of possession of the plaint schedule property after ejectment of defendants from it? 7. Whether plaintiff is entitled for damages for use and occupation and if so at what rate? 8. Whether defendants are entitled for compensatory costs as prayed in the written statement? 9. To what relief? To prove the case of the plaintiff, she got herself examined as P.W.1 and marked Exs.A1 to A5. On behalf of defendants, defendant No.2 was examined as D.W.1 and 3rd defendant was examined as D.W.2 and two more witnesses were examined as D.Ws.3 and 4 and Ex.B1 was marked. The trial court after taking into consideration the evidence adduced by the parties, decreed the suit of the plaintiff directing the defendants to vacate the premises and deliver vacant possession of the same to the plaintiff within three months from the date of judgment and also granted damages @ Rs.2,500/- per month from 01.09.2002 till the date of delivery of the vacant possession. On appeal being filed, the lower appellate court on reappreciation of the entire evidence, dismissed the appeal, against which the present second appeal has been filed. As seen from the judgment of the lower appellate court, the grounds raised before it is that, in view of the amendment carried out under Section 32 (c) of the Andhra Pradesh Buildings (Lease, rent and Eviction) Control Act, 1960 (for short, “the Act”), the defendants cannot be evicted without recourse to the provisions of the Act, as the monthly rent covering in the premises is less than Rs.3,500/-. Further defendant No.1 firm is unregistered and it cannot be sued by virtue of Section 69 of Indian Partnership Act and therefore, the quit notice issued under Ex.A1 is not valid. The lower appellate court rejected the first contention holding that the suit was filed before the trial Court on 09.09.2002 and amendment under Section 32 (c) of the Act, enhancing the limit of monthly rent of Rs.1,000/- prescribed in G.O.Ms.No.636, dated 29.12.1993 to Rs.3,500/- for the purpose of exempting buildings from the provisions of the Act, was issued vide G.O.Ms.No.222 dated 28.05.2005. In view of the full bench judgment of this court in Ramvilas Bajaj v. Ashok Kumar[1] that the eviction decree passed in a suit which was instituted prior to the said date of amendment can be executed as the amendment carried out to the act will not be applicable to the cases filed earlier to it. Further on point No.2, the lower appellate court held that the nomenclature of document Ex.B1 is not important and the contents of the document are important. The contents of the document make it very clear that it is only the rent deed but not an agreement. Similarly, with regard to the perpetual lease pleaded by the defendants on point No.3, the lower appellate court held that there is no dispute that Ex.B1 was written by defendant No.3 and while taking into consideration of the contents of the same, it was held that the lease beyond one month should have been registered and for its non-registration, it cannot be looked into and any amount of oral evidence given in that behalf cannot be taken cognizance of and, therefore, creation of perpetual lease is disproved or is not valid. With regard to Point No.4, the lower appellate court held that admittedly the plaintiff is not a firm nor a partner in the defendant firm and as the defendant firm is an unregistered firm, the plaintiff can enforce his right of suing against an unregistered firm and also upheld the validity of the quit notice on point No.5 and limited the damages of Rs.2,500/- granted by the trial court to Rs.2,000/- per month. The learned counsel for the appellants contends that both the courts concurrently held against the appellants in ordering the eviction and when this court found that there is no substantial question of law to admit the second appeal, issued notice to the respondent only for the purpose of granting time for vacation of the premises on 30.10.2009. Therefore, she pleads that six months time may be granted for vacating and handing over the suit schedule property. The learned counsel for the respondent contended that when the trial court granted three months time for delivery of vacant possession, the appellants are not entitled to more than that period. Since no question of law much less any substantial question of law has been made out to admit the second appeal, keeping in view of the submissions made by the learned counsel, time for eviction of the suit schedule premises is extended till the end of April, 2010, on condition of appellants depositing arrears of rent, if any, and damages payable towards use and occupation as awarded by the trial court by the end of December, 2009 and also continuing to pay the monthly rent and damages of Rs.2,000/- on or before 10th of every succeeding month. Appellants are directed to file an undertaking in writing before the trial court on or before 31.12.2009, to the effect that they will vacate and handover the possession of the suit schedule property to the plaintiff on or before 1st May, 2010. Accordingly, the Second Appeal is dismissed with the above direction. No order as to costs. _____________________ (A.GOPAL REDDY, J) 27th November 2009. LMV [1] 2007(4) ALT 348