IN THE HIGH COURT OF JUDICATURE ANDHRA PRADESH AT HYDERABAD MONDAY THE NINETEENTH DAY OF APRIL TWO THOUSAND AND TEN PRESENT: THE HONOURABLE SRI JUSTICE P. S. NARAYANA SECOND APPEAL No. 9 8 6 OF 2009. Between: Jillendimudi Lakshmi … Appellant-Defendant V/s. Velamarthi Sundaramma (died) {Per LRs., amended as per orders In IA.No. 763 of 2007 dated 09-8-2007} … Respondents Counsel for the Appellant : M/s. K. Srinivasa Rao Counsel for the Respondents : Sri K.V. Subramanya Narsu for Respondents 2 and 3 THE HONOURABLE SRI JUSTICE P. S. NARAYANA * * * * * SECOND APPEAL No. 9 8 6 OF 2009 JUDGMENT : Heard the counsel. 2. This Court on 15-10-2009 made the following order in the Second Appeal No. 986 of 2009 : “In view of the substantial question of law raised in ground No.9 (a) (b) (c) and (d), admit.” 3. In SAMP.No. 2157 of 2009, this Court granted interim stay of all further proceedings including the execution in AS.No.338 of 2006 dated 31-07-2009 on the file of II-Additional District Judge, Visakhapatnam. 4. In SAMP.No.2157 of 2009, this Court granted interim stay of all further proceedings including the execution in AS.No.338 of 2006 dated 31-07-2009 on the file of II-Additional District Judge, Visakhapatnam. 5. When the matter came up0 for hearing before this Court, the counsel on record made a request for the final disposal of the second appeal. 6. Sri K. Srinivas Rao, the learned counsel representing the appellant-defendant had taken this Court through the specific grounds raised in ground No.9 (a) (b) (c) and (d) and would maintain that the appellate court totally erred in dismissing I.A.No. 713 of 2008 filed under Order-47, Rule-28 of the Code of Civil Procedure. The learned counsel would further maintain that the appellate court had not appreciated the oral and documentary evidence available on record and recorded erroneous finding and hence the second appeal to be allowed. 7. Per Contra, Smt. Jayshree representing Sri K.V. Subramanya Narsu would maintain that the appellate court recorded reasons in detail and came to the conclusion that the decree and judgment of the trial court did not suffer from any illegality and accordingly dismissed the appeal. 8. The learned counsel would also maintain that even if the substantial questions of law on the strength of which the second appeal had been admitted it to be taken into consideration, this being virtually factual controversy. In the light of the concurrent findings recorded by both the court of first instance and also the appellate court, the second appeal being devoid of merit and the same to be dismissed. 9. Heard the counsel on record. 10. The substantial questions of law on the strengh of which the second appeal had been admitted reads as hereunder: (a) Whether the court below is justified in resolving the dispute under section 106 of Transfer of Property Act ? (b) Whether the court below is justified in dismissing the suit, as the reasons required to be mentioned while terminating lease through Ex.A1 notice is not in consonance with section 106 of Transfer of Property Act? (c) Whether the lower appellate court is justified in dismissing the I.A.No. 713 of 2008 filed under Order-41 Rule 27 of CPC. (d) Whether the lower appellate court is justified in not considering the lease deed which is the subject matter of I.A.No. 713 of 2008 merely because it was not registered. 11. The second appeal is filed against the decree and judgment made in AS.No. 338 of 2006 on the file of II-Additional District Judge, Visakhapatnam, confirming the judgment and decree made in OS.No. 2284 of 2003 on the file of I-Additional Junior Civil Judge, Visakhapatnam. 12. For the purpose of convenience, the parties hereinafter would be referred to as “plaintiff” and “defendant” as shown in OS.No. 2284 of 2003 on the file of I-Additional Junior Civil Judge, Visakhapatnam. 13. During the pendency of the appeal, since the plaintiff died, the legal representatives were brought on record. The suit was filed for eviction of defendant from the plaint schedule property and also recovery of Rs.12,600=00 towards arrears of rent and damages at the rate of Rs.10,000=00 per month and subsequent interest on Rs.12,600=00 and for costs of the suit. 14. The Court of first instance having settled the issues in the light of the respective pleadings of the respective parties recorded the evidence of PWs.1 and 2 and DWs.1 to 3, marked Exs.A1, A2, A3 and also Ex.X-1, X-2, X-3 and came to the conclusion that the plaintiff is entitled for a decree and the defendant was directed to vacate and handover possession of the plaint schedule property within two months from the date of decree and pay Rs.600/- towards costs of legal notice and the plaintiff was given liberty to file the application for appointment of Advocate-Commissioner to ascertain the mesne profits. 15. Aggrieved by the same, the matter was carried by way of appeal, A.S.No.338 of 2006 on the file of Second Additional District Judge, Visakhapatnam. The appellate court after recording the findings in detail at para Nos. 15 to 19, ultimately dismissed the appeal. 16. Aggrieved by the same, the present second appeal had been preferred. 17. Originally the plaintiff had filed the suit for eviction and pending the suit, the plaint was amended claiming damages as well. 18. The averments made in the plaint are as hereunder: The plaintiff is the absolute owner of the ground floor of the building bearing D.No. 26-1-72, Bowdara Road, opposite to Poorna Market, Visakhapatnam. The plaintiff has inducted the defendant in the suit schedule premises in July 1999 on a monthly rent of Rs.3000/-. The defendant had committed default of payment of rent from March 2003, when they demanded the defendant’s son and the defendant for payment of rents, they have responded in an arrogant manner and subsequently they filed the suit in OS.1339/2003 on the file of IV-Additional Junior Civil Judge, Visakhapatnam for permanent injunction, as such the plaintiff had terminated the tenancy of the defendant, by issuing a notice under section 106 of Transfer of Property Act. As the defendant had failed to vacate the premises, the plaintiff filed the suit for eviction and arrears of rent. 19. The averments in the written statement and additional written statement are as hereunder: The averment that the defendant obtained the schedule premises on lease from the plaintiff is correct but the allegation that the defendant has committed default in payment of rents from March, 2003 is not correct. The defendant had paid the rent of March, 2003 in April, 2003, when she tried to pay the rent for April, 2003 the plaintiff refused to receive the same and the plaintiff and her son used to visit the shop and create problems to the defendant. Though the defendant had requested the plaintiff to stop such activities, but the plaintiff did not hear the words of the defendant and when the plaintiff along with some anti social elements tried to dispossess the defendant, the plaintiff was constrained to file a suit for injunction against the defendant for permanent injunction. The defendant is not due rent for March, 2003 and the defendant is not liable to pay the damages at the rate of Rs.10,000/- per month from July, 2003 as claimed by the plaintiff. The plaintiff had created all these allegations only to grab more money from the defendant and no shop in that area is fetching that much rent and as per the plaint pleadings, the defendant has deposited Rs.2 lakhs and the plaintiff can adjust the amount for 66 months rent and as such there is no cause of action for the plaintiff to file the suit. 20. On the strength of the pleadings, the following issues were settled : (1) Whether the plaintiff is entitled for recovery of vacant possession of suit schedule property as prayed for ? (2) Whether the plaintiff is entitled for recovery of Rs.12,600/- towards arrears of rent ? (3) Whether the plaintiff is entitled for damages at Rs.10,000/- per month from July, 2003 till the date of delivery of suit schedule premises ? (4) To what relief ? 21. The trial court recorded the evidence of PWs.1, 2 and DWs. 1 to 3 and marked office copy of the notice dated 01-6-2003 Ex.A1 and acknowledgment as Ex.A2 and the certified copy of the judgment in OS.No.1339 of 2003 on the file of IV-Additional Junior Civil Judge, Visakhapatnam, as Ex.A3. The Xerox copy of rent receipts , as Exs.X1 and X2 and statement of account issued by the State Bank of India as Ex.X3. 22. The learned Judge referred to several decisions apart from appreciating the evidence available on record and ultimately decreed the suit as specified supra. Being aggrieved of the same, the appeal, AS.No.338 of 2006 was filed on file of II-Additional District Judge, Visakhapatnam, and the appellant as defendant filed application, IA.No. 713 of 2008 under Order-41, Rule 27 of the Code of Civil Procedure to receive unregistered agreement as additional evidence. But however after recording the reasons in detail, the learned Judge dismissed the said application. The relevant findings had been recorded at para No.15. 23. The appellate court formulated the following points for consideration: (1) Whether the tenancy is for a fixed period or whether it is a month to month tenancy and whether the same can be determined by issuing quit notice as contemplated under section 106 of the Transfer of Property Act? (2) Whether the plaintiff is entitled for damages for use and occupation of the plaint schedule property as claimed in the plaint ? (3) Whether the judgment and decree of the trial court are sustainable under law and whether they warrant interference by this Court and whether the same are liable to be set aside ? 24. The learned Judge after referring section 17 of the Indian Registration Act and Section 107 of the Transfer of Property Act and after looking into the recitals of the agreement and on appreciation of the nature of the agreement came to the conclusion that even if the said agreement to be received since would not seriously alter the situation. The learned Judge was not inclined to receive the same. This court does not see any reason to interfere with the said findings. 25. Reliance was also placed on a decision in CHITTAJALLU SRINIVASA RAO V/s. NARMADA JOSHI[1] , wherein the learned Judge of this Court at Para Nos. 8 and 9 held as hereunder: The lease under the Act stands on a different footing, compared to the cases arising under the A.P. Buildings (Lease, Rent and Eviction) Control Act, 1960. The duration of lease under the Act would depend upon the terms of lease deed and in the absence of the same it has tobe treated as one from month to month. The very fact that certain amount was paid as advance would not by itself enlarge the period of lease. Even where the payment of such advance is proved, the lesee would, at the most be entitled to recover it, but cannot plead that the lease stands extended for the corresponding period. Therefore, even assuming that the appellant was able to prove Exs. B2 and B.3, they would not have had the effect of extending the period of lease. Admittedly, the lease lapsed long ago and the same came to be terminated with the issuance of Ex.A1. When the legal consequences are so clear, there was no way, the appellant could have resisted or avoided the eviction. The factors such as regular payment of rent, absence of default, and the premises not being bonafide required for the landlord are alien to the proceedings under section 106 of the Act. Therefore, this Court does not find any basis to interfere with the concurrent findings of the fact recorded by the trial Court as well as the lower appellate Court. 26. On careful analysis recorded both by the trial court as well as the appellate court, this Court has thoroughly satisfied that these are all factual findings and inasmuch as the concurrent findings recorded, normally this Court should be slow in disturbing such findings and hence the said findings are hereby confirmed. 27. In the result, the second appeal being devoid of merit and the same shall stand dismissed. No order as to costs. But however, it is stated that the premises being utilized for commercial purpose, the appellant is granted two months time from today i.e., 19-4-2010 to vacate the premises. __________________________ JUSTICE P. S. NARAYANA. 19-04-2010. I s L THE HONOURABLE SRI JUSTICE P.S. NARAYANA u SECOND APPEAL No. 9 8 6 of 2009 Circulation Entry No. Date: 19-04-2010 Computer No. 43 Court Master: I s L [1] ) 2008 (1) ALD-111