THE HON’BLE SRI JUSTICE G. BHAVANI PRASAD SECOND APPEAL No.348 of 2003 JUDGMENT: The Second Appeal is directed against the judgment in A.S.No.64 of 2002 on the file of the Additional Senior Civil Judge’s Court, Narsaraopet, Guntur, dated 31.01.2003. The parties are referred to herein as they are arrayed before the trial Court in O.S.No.269 of 1999. The factual background for the dispute is that the plaintiff in O.S.No.269 of 1999 filed the suit for ejectment of the defendant from the suit schedule property and delivery of vacant possession of the suit schedule shop apart from arrears of rent and mesne profits/damages for use and occupation from 31.03.1999 till delivery. The claim of the plaintiff is that he is the absolute owner of the suit schedule shop let out to the defendant on a monthly rent of Rs.1,850/- in March, 1996 and the defendant filed O.S.No.119 of 1999 for a permanent injunction against the plaintiff after some disputes arose and the plaintiff issued a registered notice on 09.02.1999 asking the defendant to vacate the shop. He also issued a statutory notice to vacate the shop by 31.07.1999 and the plaintiff refused to receive the rents sent by money order after filing of O.S.No.119 of 1999. The defendant resisted the suit contending that he was always ready to pay the rents as a tenant in possession and enjoyment and as the plaintiff unjustly refused to receive the rents, he filed a petition before the Court for a direction to receive the rents and as he never committed default in payment of rents and is lawful tenant of the property, he desired the suit to be dismissed. The trial Court framed the issues about the right of the plaintiff for ejectment of the defendant and vacant possession as well as arrears of rent with interest and mesne profits/damages for use and occupation. O.S.No.269 of 1999 and O.S.No.119 of 1999 were clubbed and tried together and during the course of trial, P.Ws.1 and 2 and D.Ws.1 and 2 were examined and Exs.A1 to A5 and B1 to B12 were marked. The trial Court rendered a common judgment in both the suits on 17.06.2002 and it concluded that after expiry of the period specified in Ex.A4 notice under Section 106 of the Transfer of Property Act, 1882 (for short ‘1882 Act’), the plaintiff was entitled to eject the defendant from the schedule property. The trial Court also consequently held that the defendant is not entitled to permanent injunction against the plaintiff. The trial Court also noted that the plaintiff was of course indebted to the defendant under several promissory notes and a mortgage deed and there was exchange of notices between the parties in that regard, but it considered that those circumstances do not stand in the way of the plaintiff seeking eviction of the defendant from the leasehold premises. Refusing to apply the principles under the Andhra Pradesh Buildings (Lease, Rent and Eviction) Control Act, 1960 (for short ‘1960 Act’) to the suit dispute, the trial Court concluded that the plaintiff was entitled to a decree of suit while noting that arrears of rent were deposited into the Court by the defendant as per the orders in I.A.No.1761 of 2001 and that the plaintiff is entitled to the arrears of rent from out of the said deposit but not interest, while he is also entitled to mesne profits at Rs.1,850/- per month. In A.S.No.64 of 2002 against the judgment and decree in O.S.No.269 of 1999 on the file of the Principal Junior Civil Judge, Narsaraopet, the first appellate Court firstly noted that the appeal has to be disposed of on merits in pursuance of the directions of the High Court in C.R.P.No.5956 of 2002 and the first appellate Court dealt with I.A.Nos.103 and 102 of 2003 filed for amendment and for receiving additional evidence also along with the main appeal. The first appellate Court took the view that the interim orders passed in I.A.No.1757 of 2002 in O.S.No.200 of 2002 filed by the defendant for recovery of mortgage debt have no relevance for the disposal of the appeal. The first appellate Court also felt that the order in I.A.No.1757 of 2002 in O.S.No.200 of 2002 sought to be produced as additional evidence has no relevance to the claim for eviction and the first appellate Court also rejected the request for amendment of the written statement to enable the defendant to plead his right to be in possession of the suit property till the plaintiff pays the amount due under the mortgage. In dealing with the main appeal, the appellate Court also found that even if the defendant was regular in payment of rents and the plaintiff had no necessity for the premises, still on expiry of the period specified in the notice under Section 106 of 1882 Act, the tenancy got legally determined entitling the plaintiff to recover the premises. The first appellate Court also referred to the contention that the first appeal against O.S.No.119 of 1999 pending on the file of the Principal Senior Civil Judge, Narsaraopet, also should be disposed of along with this appeal as both the appeals arose against the common judgment, but being bound by the directions of the High Court in C.R.P.No.5956 of 2002 to dispose of the appeal by 31.01.2003, the first appellate Court proceeded to dismiss the appeal with costs. The defendant preferred the second appeal aggrieved by the said judgment and decree and the second appeal was admitted on six questions projected by the appellant as the substantial questions of law involved in the second appeal as per his grounds of appeal. Smt. V. Hima Bindu, learned counsel representing Sri P. Veera Reddy, learned counsel for the appellant and Sri M.V.S. Suresh Kumar, learned counsel for the respondent, are heard. Sri M.V.S. Suresh Kumar, learned counsel for the respondent, brought to notice that A.S.No.69 of 2002 on the file of the Principal Senior Civil Judge’s Court, Narsaraopet, against the judgment and decree in O.S.No.119 of 1999 was dismissed without costs on 27.09.2007 on the memo filed by the appellant to dismiss the appeal. Smt. V. Hima Bindu, learned counsel for the appellant, brought to notice that O.S.No.200 of 2002 between the parties for recovery of Rs.9,61,035/- on the basis of a mortgage ended in a preliminary decree on 02.09.2008 and the plaintiff (appellant) preferred A.S.No.31 of 2009 against the said judgment and decree in which the defendant (respondent) also filed cross objections. While Sri M.V.S.Suresh Kumar, learned counsel for the respondent, contended that after dismissal of A.S.No.69 of 2002, the grounds of second appeal ceased to have any relevance, Smt. V. Hima Bindu, learned counsel for the appellant, contended that in view of the plaintiff being due substantial amounts under the preliminary decree on a mortgage in respect of the same property, any eviction will be unjust and illegal. The substantial questions of law on which the second appeal was admitted were about the Courts below not properly appreciating the evidence and giving perverse findings; the propriety of hearing the appeal when O.S.No.200 of 2002 for recovery of money on the basis of a mortgage was pending; the incorrectness of the refusal to amend the written statement; the legality of the termination of the tenancy in spite of regular payment of rents and in the absence of any personal necessity; the treatment of the tenancy wrongly as monthly tenancy and the incorrectness of deciding A.S.No.64 of 2002 without deciding A.S.No.69 of 2002 along with it. The leased premises/a shop was leased for the purposes of business of the defendant. There was admittedly no written lease between the parties and the lease for a monthly rent of Rs.1,850/- was oral. Section 106(1) of 1882 Act states that in the absence of a contract or local law or usage to the contrary, a lease of immovable property for agricultural or manufacturing purposes shall be deemed to be a lease from year to year and a lease of immovable property for any other purpose shall be deemed to be a lease from month to month. The present lease in the absence of a contract in writing or even oral to the contrary and in the absence of any allegation or proof of any local law or usage and being not for agricultural or manufacturing purposes has to be deemed to be a lease from month to month. Under the same provision such monthly lease is terminable on the part of either lessor or lessee by 15 days notice and by virtue of the provision in Sub- Section (3) of Section 106 of 1882 Act, a notice under Sub-Section (1) of Section 106 of 1882 Act shall not deemed to be invalid merely because the period mentioned there fell short of the period specified in that Sub-Section where a suit or proceeding is filed after the expiry of the period as mentioned in that Sub-Section. Ex.A4 notice satisfies the requirements of the statutory notice under Section 106 of the Transfer of Property Act, 1882 Act concerning the suit schedule property and the regularity in payment of rents or the absence of any bona fide personal requirement for landlord are not relevant considerations in adjudicating the request of the landlord for eviction of the tenant after expiry of the period specified in the statutory notice. The trial or the first appellate Courts cannot be considered to have gone wrong in refusing to apply any considerations relevant to a dispute governed by 1960 Act to the present dispute. The question of any perversity in appreciation or assessing the evidence on record obviously does not arise as the ownership of the suit schedule premises of the plaintiff, the status of the defendant vis-à- vis the property as a tenant of the plaintiff, the issuance of the statutory notice and the expiry of the period fixed by it prior to the suit, being not disputed facts in the pleadings or evidence. The inevitable conclusions about the liability of the defendant to be evicted cannot be considered, therefore, as unjust or unreasonable. It is true that O.S.No.200 of 2002 filed by the defendant for recovery of money under a mortgage against the plaintiff and another (plaintiff’s minor son) ended in a preliminary decree on 02.09.2008, but the perusal of the judgment in the said suit, a copy of which is provided by the learned counsel for the appellant, shows that it was not a possessory mortgage and that even the allegations in the plaint do not specify the possession under the lease to have undergone any transformation in its legal character by virtue of the mortgage transaction between the parties. The judgment had no reference to the relationship or the rights of the parties under the tenancy and the preliminary decree only authorized the defendant to bring the mortgaged property for sale in case of failure to redeem within the time granted. Therefore, it is clear that either during the pendency of O.S.No.200 of 2002 before the trial Court or even later, the relief of eviction sought for in this suit and the enforcement of the mortgage could not have been made interdependent. While it is true that the first appellate Court refused to amend the written statement incorporating a plea about the right of the defendant to be in possession of the property till discharge of the mortgage debt on the strength of the existence of mortgage without possession, the rights of the parties concerning the tenancy could not have been subjected to the mortgage and the same is so is also evident from the ultimate judgment in O.S.No.200 of 2002. Concerning the objection that A.S.Nos.64 and 69 of 2002 arising out of the common judgment should have been heard and decided together, undoubtedly it would have been a matter of propriety that both the appeals be decided together, but the first appellate Court, while disposing of A.S.No.64 of 2002 separately, expressed its helplessness due to the compulsion imposed by the directions of the High Court in C.R.P.No.5956 of 2002 to dispose of A.S.No.64 of 2002 within a fixed time frame. Any how, the question as of now remains academic in the light of the dismissal of A.S.No.69 of 2002 on 27.09.2007, during the pendency of this second appeal, with the appellant therein himself filing a memo to dismiss the appeal. While the second appeal thus appears to be unsustainable on merits, Smt. V. Hima Bindu, learned counsel for the appellant, requested that the first appeal against judgment and decree in O.S.No.200 of 2002 also be heard and decided along with this appeal. As already stated, the subject matter of these two disputes is not interdependent though the parties are the same and in the affidavit in support of C.M.P.No.7447 of 2003 filed by the appellant for interim suspension of the judgments and decrees of the trial and first appellate Courts, the appellant stated that in I.A.No.1757 of 2002 in O.S.No.200 of 2002, an interim injunction was granted on merits in his favour by an order dated 05.12.2002. Hence, it may be open to the appellant to move an appropriate application in A.S.No.31 of 2009, if he is so advised and is so entitled, for a similar interlocutory relief pending the said first appeal. But the same is no ground to postpone the adjudication of this second appeal. Accordingly, the Second Appeal is dismissed without costs. _______________________ (G. BHAVANI PRASAD, J) 29th January, 2011 GHN/YSK