THE HON’BLE SRI JUSTICE B. CHANDRA KUMAR SECOND APPEAL No.594 of 2006 Date:24.1.2011 Between: Rajender Gupta and others. ………..Appellants. And Katari Pandarinath. ………Respondent. THE HON’BLE SRI JUSTICE B. CHANDRA KUMAR SECOND APPEAL No.594 of 2006 JUDGMENT: The second appeal is directed against the judgment and decree dated 19.4.2006 passed in A.S.No.119 of 2000 on the file of the District Judge, Secunderabad, whereby and whereunder the judgment and decree passed in O.S.No.994 of 1997 by the XI Junior Civil Judge, City Civil Court, Seunderabad has been confirmed. The brief facts of the case are as follows: The parties will be referred to as they are shown before the trial Court. The plaintiff is the absolute owner of the suit schedule premises and the defendants are the tenants in the suit premises. The defendants were paying monthly rent of Rs.1,650/- contending that since the rent payable exceeded to Rs.1,000/-, the provisions of A.P. Buildings (Lease, Rent and Eviction) Control Rules, 1960 (herein after referred to as ‘the Act’) does not apply, the plaintiff filed suit for eviction after issuing eviction notice, dated 8.5.1997, terminating the tenancy of the defendants w.e.f 30th June 1997. It is also their case that the possession of the defendants, after the expiry of the period of the tenancy as per the eviction notice is illegal and wrongful and therefore, the plaintiff is entitled to mesne profits and damages at the rate of Rs.5,000/- per month from the defendants till the date of delivery of the vacant possession of the premises. The defendants filed written statement contending inter alia that the monthly rent was Rs.950/-. The defendants’ specific case is that monthly rent was Rs.950/- and 700/- towards amenities and facilities and therefore, the suit was not maintainable and that the plaintiff ought to have filed the eviction petition under the provisions of the Act. It is also their case that in the earlier round of litigation, a compromise was recorded on 2.2.1987 resulting in the execution of rental deed, dated 1.4.1987 and it was agreed that the tenancy shall be initially for a period of 11 months commencing from 1.2.1987 and later on with an option to renew the tenancy and that the plaintiff was not given the option to terminate the tenancy. The trial Court framed the necessary issues as to whether the suit notice dated 8.5.1987 is valid and binding on the defendants, whether the plaintiff is entitled to evict the defendants from the suit premises and whether the plaintiff is entitled for mesne profits at the rate of Rs.5,000/- per month from 1.7.1997 till the date of delivery of the vacant possession? On behalf of the plaintiff, the plaintiff himself was examined as P.W.1 and one K.Ashok was examined as P.W.2 and Exs.A1 to A8 were marked. On behalf of the defendants, the 1st defendant was examined as D.W.1 and Exs.B1 to B4 were marked. The trial Court held that in the absence of a registered agreement as contemplated under Section 107 of the Transfer of Property Act, it has to be held that the tenancy between the parties is monthly tenancy, which can be terminated by issuing 15 days notice as contemplated under Section 106 of the Transfer of Property Act. The trial Court also held that the Apex Court in a case reported in Puspasen Gupta vs. Susma Ghose[1], held that the word ‘rent’ includes payment for amenities and services. Reliance was also placed in M/s. Heerchand Poonamchand HUF rep.by Kartha Chainhand Challani vs. M/s.Kanchan Cycle Trading Company Partnership firm rep. by Shankar Lal Agarwal[2], and accordingly the trial Court held that the Civil Court has no jurisdiction to try the case and therefore, the eviction notice issued by the plaintiff is valid. Thus, the trial Court decreed the suit with costs directing the defendants to vacate and handover the vacant possession to the plaintiff within two months from the date of the decree. Aggrieved by the same, the defendants preferred an appeal. The learned Judge, Family Court, Secunderabad has also taken into consideration the additional ground taken by the defendants with regard to the amendment of A.P. Building (Lease Rent and Eviction) Control Act, 1960 (amended Act No.17/05) to the effect that the provisions of the said Act apply to the cases up to the rent of Rs.3,500/- per month. The issue that came up for consideration is whether the Civil Court had lost its jurisdiction to maintain the eviction suit in view of the subsequent above referred amendments of the Act. The appellate Court relying on the judgments of this Court held that the amended provisions have no retrospective effect and that the matters pending as on the date of the amendments are governed by the provisions of old Act or not effected by the amended provisions and accordingly dismissed the appeal. Challenging the said judgment, this Second Appeal has been filed. The only point that arises for consideration is whether the amended provisions i.e., Section 32 (2) inserted by amendment Act 2005 has got retrospective effect. The matters were referred to the Full Bench and then the Larger Bench, this Court having considered the relevant provisions held that Section 32 (2) as inserted by amendment Act 2005 is being prospective in operation does not effect pending proceedings as on the date of its coming into force before the Civil Court or appellate, Revisional Court or Executing Court and all such cases are required to be decided without reference to and application of provisions of amendment Act 2005 and that Section 32 (c) of the Act is brought into force by the amendment Act is not retrospective in its operation. In view of the same, it is clear that there are no merits in the appeal. Accordingly, the Second Appeal is dismissed. However, in the circumstances, no order as to costs. The learned counsel for the appellants requested the Court to grant six months time for eviction of the suit schedule premises. However, in the circumstances, the appellant shall vacate the premises on or before 30th April 2011 and handover the vacant possession of the premises to the plaintiff. ______________________ Justice B.Chandra Kumar Date: 24.01.2011 mrb [1] 1990 (2) APLJ 40 [2] 1990 (2) APLJ 93