IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) FRIDAY, THE TWENTY FIFTH DAY OF JUNE TWO THOUSAND AND TEN PRESENT HON'BLE SRI JUSTICE A.GOPAL REDDY SECOND APPEAL No.508 of 2010 Between: Chukkapalli Amar Kumar. … Plaintiff And Durga Venkata Jagannadha Rao and four others … Respondents This Court made the following: HON’BLE SRI JUSTICE A.GOPAL REDDY SECOND APPEAL No. 508 OF 2010 ORDER:- This is a defendant’s second appeal against the decree and judgment, dated 25.01.2001, passed by VI Additional District Judge, Fast Track Court, East Godavari District at Rajahmundry in A.S.No.209 of 2007, wherein the appeal preferred by the defendant was dismissed confirming the decree and judgment, dated 12.09.2007, passed by the Principal Junior Civil Judge, Rajahmundry in O.S.No.517 of 2005, wherein the suit of the plaintiffs was partly decreed, ordering eviction of the defendant from the suit schedule premises and rejecting the relief of damages. Respondents/plaintiffs, who are the co-owners of the suit schedule property, instituted the above suit stating that the defendant took the schedule shops on lease on 01.02.1999 for their non-residential purpose and commenced a business in the name and style of Popular Shoe Mart. The lease was for a period of six years, which expires by 31.01.2005. The defendant paid an amount of Rs.3 lakhs to the plaintiff towards advance and agreed to pay Rs.5,000/- per month towards rent and adjust Rs.1,500/- every month from the rent, by way of deduction from the advance amount of Rs.3 lakhs and further agreed to take refund of the balance amount of Rs.1,92,000/- without interest on expiry of the terms of lease and accordingly a written agreement of lease, dated 17.02.1999 was entered into by the plaintiffs and the defendant. The 1st plaintiff used to receive the balance amount of Rs.3,500/- every month from the defendant while adjusting Rs.1,500/- by way of deduction making a total of Rs.5,000/- and before the expiry of the lease period, the plaintiffs requested the defendant from August, 2004 onwards to vacate and deliver vacant possession. Though the defendant agreed to vacate, but failed to put up his promise and thereby the plaintiffs got issued a notice on 13.08.2004 to the defendant and another person by name Ch.Vijay Kumar to vacate and deliver vacant possession of the suit schedule property by the end of 31.01.2005, which was received and acknowledged by them on 16.08.2004, to which no reply has been issued. Again on 06.12.2004 the plaintiffs issued another registered reminder notice, which the defendant and Ch.Vijay Kumar acknowledged and the defendant got issued two replies dated 07.01.2005 with false allegations that negotiations were taking place for extension of lease. Thereafter the defendant on 09.03.2005 issued notice that he had sent rentals which were refused to be received, calling upon the plaintiffs to furnish the particulars of his Savings Bank Account for enabling him to deposit the rents, to which the plaintiffs got issued a reply notice and filed the above suit for eviction and also for damages at Rs.15,000/- per month for use and occupation on expiry of the lease period. The appellant/defendant contested the suit by filing a written statement stating that originally the schedule property was taken on lease by the defendant’s younger brother Vijay Kumar in the year 1988 for carrying on shoe mart business styled as “Popular Shoe Mart” and paying the rents regularly without any default and later the same business was continued by his elder brother Ch.Amar Kumar and a lease deed was also executed admitting the monthly rent fixed at Rs.5,000/-, on payment of Rs.3 lakhs as advance and adjustment. The plaintiffs demanded the defendant to enhance the rent from Rs.5,000/- to Rs.10,000/-, and when the defendant protested, the plaintiffs did not agree for extension, but they will evict the defendant. The plaintiffs without any sufficient cause refused to take rent for the period from February, 2005, which was sent by the defendant by way of D.D. and the plaintiffs received the same and that the defendant incurred heavy losses having invested huge amounts for stock and also gained popularity in the locality and the plaintiffs have no right to evict the defendant from the suit schedule premises and the damages claimed are exhorbitant. On the said pleadings, necessary issues were settled by the trial court, which are as follows: 1. Whether the plaintiffs are entitled for eviction of the defendant from the schedule premises? 2. Whether the plaintiffs are entitled for Rs.30,000/- towards damages? 3. Whether the plaintiffs are entitled for interest as prayed for? 4. To what relief? The trial Court on considering the oral and documentary evidence particularly Ex.A1 – office copy of the legal notice dated 13.08.2004, Exs.A2 and A3 – Postal acknowledgments of 1st defendant and Ch.Vijaya Kumar, brother of the defendant, Ex.A4 – office copy of quit notice, dated 06.12.2004, Exs.A5 and A6 –acknowledgments of the defendant and his brother Ch.Vijay Kumar respectively, Ex.A7 – reply notice, dated 07.01.2005 by the defendant, Ex.A8 – reply notice issued by Vijaya Kumar, dated 07.01.2005, Ex.A9 – notice issued by the defendant to the plaintiffs, dated 09.03.2005, Ex.A10 – reply issued by the plaintiffs to the defendant, dated 17.03.2005 and Ex.A11 – Postal acknowledgement, dated 19.03.2005, held that in the absence of a registered lease deed and as the lease is for month to month, ordered for eviction of the defendant from the suit schedule premises. On appeal being filed, the lower appellate court confirmed the said finding and dismissed the appeal. Learned counsel for the appellant now contends that Ex.A4- quit notice, dated 06.12.2004 was issued against Popular Shoe Mart represented by Ch.Vijay Kumar and also the appellant/defendant-Ch.Amar Kumar, describing him as a partner of the Popular Shoe Mart. In the absence of a valid quit notice, the appellant cannot be evicted from the suit schedule premises. Admittedly, no such plea was taken by the defendant in the trial court. It is admitted by the appellant/defendant that initially the premises was obtained by his brother Ch.Vijaya Kumar for carrying on shoe mart business styled as ‘Popular Shoe Mart’ and paying the rents regularly and later the same business was continued by his elder brother Ch.Amar Kumar, who is the defendant. The notice under Ex.A1 was issued to both Popular Shoe Mart and also the defendant. That is the reason why the defendant has not pleaded in the written statement that the quit notice issued to the defendant is not valid and as such no issue was framed by the trial Court and the parties went into trial. Only on receipt of the reply notice under Ex.A7 from the defendant, it came to light that he is ready and willing to negotiate with the plaintiffs to extend the lease period, but there is no extension of lease period till such notice was issued. Therefore, such a plea cannot be raised in the second appeal for the first time about the validity of the quit notice issued in the name of Popular Shoe Mart. Sri T.S.Anand, learned counsel for the respondents also stated that for due execution of the decree, the E.P. was filed and possession of the property was already taken. Concurrent findings of fact recorded by the Courts below, do not give raise to any question of law much less substantial question of law, to be decided in this second appeal. Second appeal fails and is accordingly dismissed. No costs. __________________ A.GOPAL REDDY, J 25th June 2010 lmv