IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD TUESDAY, THE FIFTEENTH DAY OF JUNE TWO THOUSAND AND TEN HON’BLE SRI JUSTICE G. BHAVANI PRASAD Second Appeal No.132 of 2010 Between: Nemichand Khatri .. Appellant AND V. Kashinatham .. Respondent JUDGMENT: The second appeal is directed against the judgment and decree in A.S. No.20 of 2007, dated 14-12-2009 on the file of the II Additional Chief Judge, City Civil Court, Hyderabad. The factual background for the second appeal is that the respondent herein filed the suit (O.S. No.4584 of 2003) for possession of the suit mulgi and mesne profits at Rs.5,000/- per month from 01-07-2003 till the delivery of possession apart from costs and any other appropriate reliefs against the appellant herein claiming that the suit mulgi was taken on lease by the appellant from him for a monthly rent of Rs.3,000/- and with interest free deposit of Rs.20,000/-. The respondent claimed that the appellant filed O.S. No.1752 of 2003 (3752 of 2003) for an injunction with false allegations without paying rent after March, 2003. He contended that he was forced to issue a notice under Section 106 of the Transfer of Property Act on 11-06-2003 seeking the appellant to quit, for which a false reply was given and hence, he filed the suit. The suit was resisted by the appellant admitting the lease, but claiming that he had, in fact, paid Rs.1,20,000/- and not Rs.20,000/- as deposit. The appellant also claimed that on 07-04- 2000 a fresh rental agreement was entered into enhancing the monthly rent to Rs.3,000/- and receiving a further deposit of Rs.1,80,000/-. The appellate claimed that as the appellant did not concede the demand of the respondent to enhance the rent to Rs.3,600/- per month from April, 2003, the respondent refused to receive rents forcing the appellant to file a suit for permanent injunction. The appellant, therefore, denied his liability to quit or to pay any mesne profits. The trial Court framed the issues on the entitlement of the respondent to recover possession from the appellant and also to recover mesne profits apart from the truth or otherwise of the claim of the appellant about depositing Rs.3,00,000/- as security deposit. The trial Court examined P.W.1, D.W.1 and D.W.2 during the trial and marked Exs.A.1 to A.4 and B.1 to B.25. The trial Court rendered its judgment, dated 16-10-2006 holding that the defendant/appellant herein was regular in payment of rents, but the respondent/plaintiff still issued a notice to quit under Section 106 of the Transfer of Property Act, for which there was no cause of action. The trial Court further concluded that the respondent/plaintiff failed to establish that either the subject property or similar property would have fetched an income of Rs.5,000/- per month. The trial Court further held that the issue relating to security deposit of Rs.3,00,000/- need not be determined, as the main suit for termination of the tenancy fails in view of its findings on the other issues. Consequently, the trial Court dismissed the suit without costs. In appeal, the II Additional Chief Judge, City Civil Court, Hyderabad reversed the judgment and decree of the trial Court in A.S. No.20 of 2007 by judgment and decree, dated 14-12-2009. The appellate Court opined that the entire approach of the trial Court was erroneous, as the only question that principally arose for consideration was the validity or otherwise of the notice to quit under Section 106 of the Transfer of Property Act. The appellate Court considered that the questions of regular payment of rents and bona fide requirement of the respondent herein are not relevant in deciding the validity of the quit notice. The first appellate Court analysed the notice to quit and considered the quit notice to be having effect of terminating the tenancy by the end of 30-06-2003 legally and validly. The first appellate Court also held the respondent herein to be entitled to damages from the appellant herein from 01-07-2003 till the delivery of vacant possession, in consequence of the conclusion that the tenancy was terminated with effect from 30-06-2003. Accordingly, the first appellate Court decreed the suit with costs and directed the mesne profits to be determined on a separate application. The appellant/defendant challenges the first appellate Court decree and judgment on the ground that the suit notice to quit is not valid and that the subsequent acceptance of rents after the notice to quit makes the quit notice waived and that in view of the amendments to the Andhra Pradesh Buildings (Lease, Rent and Eviction) Control Act, 1960 in 2005, the subject property will be governed by the said special Act and not the general law making the suit not maintainable. Heard Sri B. Vijaysen Reddy, learned counsel for the appellant and Sri Yogesh Kumar Heroor, learned counsel for the respondent. The questions raised in the second appeal are: 1. Whether the suit is maintainable after the amendment of the Andhra Pradesh Buildings (Lease, Rent and Eviction) Control Act, 1960 in 2005 ? 2. Whether the suit notice to quit is valid and legal ? 3. Whether the notice to quit was waived ? Point No.1: The effect of the amendments effected by the Andhra Pradesh Buildings (Lease, Rent and Eviction) Control (Amendment) Act 17 of 2005 (for short “the A.P. Amendment Act 17 of 2005) to the Andhra Pradesh Buildings (Lease, Rent and Eviction) Control Act, 1960 was the subject of consideration by a five-Judge Bench of this Court in Ramvilas Bajaj v. Ashok Kumar[1]. The majority view of four of the Judges constituting the Bench was that the amendments so effected are only prospective and not retrospective in operation. It was positively held that any eviction proceedings pending as on the date of coming into force of the amendments remain unaffected by the amendments and any such proceedings at any stage including in appeal or revision or in execution have to be decided without reference to and application of the provisions of the A.P. Amendment Act 17 of 2005. This decision still holds the field and though it is stated that the matter was carried to the Apex Court and is pending before it, it is admitted that there was no suspension of operation of the judgment by the Apex Court so far. So long as the judgment is not suspended, its operability cannot be in question and the decision reported in Govt. of A.P. and others v. N. Rami Reddy and others[2] can be usefully referred to in this regard. A Division Bench of this Court held that suspension of operation of a judgment and staying the operation of the order connote two different situations and with reference to the earlier precedents on the aspect, the Division Bench concluded that the dicta laid down in the earlier decision will continue to bind the Courts and cannot be ignored and the ratio of the decision cannot be said to be wiped off merely because the operation of the order is stayed. So, that being the position of law, and in view of the well settled principle that mere filing of an appeal does not operate as a stay or suspension of the judgment, the decision of the five-Judge Bench declaring the amendments to the Andhra Pradesh Buildings (Lease, Rent and Eviction) Control Act, 1960 in 2005 to be only prospective in operation, binds this Court and therefore, it cannot be said that the suit is not maintainable in view of the said amendments. It is not in dispute that otherwise the dispute falls within the province of the Transfer of Property Act and not the Andhra Pradesh Buildings (Lease, Rent and Eviction) Control Act, 1960. Point No.2: In so far as the validity and legality of the notice to quit is concerned, even the trial Court did not positively consider the notice to quit to be illegal due to any non-compliance with the statutory requirements of Section 106 of the Transfer of Property Act and tried to negativate it on extraneous considerations like the absence of requirement of the plaintiff or the regular payment of rents by the defendant. The first appellate Court analysed the contents of the notice to quit and found that it was perfectly worded in accordance with law so as to terminate the tenancy with effect from 30th June, 2003. Without any need for replication, the reasoning adopted by the first appellate Court is unassailable and this point is answered against the appellant. Point No.3: The subsequent acceptance of rents after the notice to quit by the landlord is sought to be relied on by the appellant as a ground to invalidate the claim for possession. But the learned counsel for the respondent rightly relied on the decision of the Apex Court in Sarup Singh Gupta v. Jagdish Singh and others[3], wherein it was held that mere acceptance of rent will not by itself constitute an act of the nature envisaged by Section 113 of the Transfer of Property Act showing an intention to treat the lease as subsisting. In that case, the landlord filed the suit for eviction even after accepting the tendered rent and even while prosecuting the suit, accepted the rent which was paid to him by the tenant without compromising his pursuance of the suit. Under those circumstances, the Apex Court held that it cannot be said that by accepting rent, the landlord intended to waive the notice to quit and to treat the lease as subsisting. As pointed out by the Apex Court, express or implied consent of the person to whom the notice to quit is given, must be established and for treating the notice to quit as waived, the question whether the person giving the notice has by his act shown an intention to treat the lease as subsisting, is essentially a question of fact dependent upon all relevant facts and circumstances. Therefore, mere acceptance of rent, even if true, cannot be determinative of the question whether there was any waiver as pointed out by the Apex Court and in the present case also, after the notice to quit, the landlord, followed it up soon thereafter with the suit before the trial Court and pursued the same in the first appeal and is contesting the same in the second appeal, never thereby indicating by his conduct any intention to give up his right to prosecute the notice to quit. The respondent has also filed some additional material papers before this Court, in which it was stated that the amounts being sent by the appellant were being received under protest and without prejudice to the rights of the landlord in the suit and the consequential proceedings. Irrespective of whether there was any such express explanation of receiving under protest or receiving without prejudice to the rights in the litigation, in view of the positive decision of the Apex Court relied on, the principles of which are squarely applicable to the facts of the present case, no waiver of the notice to quit can be inferred under the circumstances even assuming that further amount tendered by the appellant was subsequently accepted by the landlord. Under the above circumstances, it cannot be said that there is any substantial question of law, which entitles the appellant to have his pleas considered in the second appeal or to consider the judgment of the first appellate Court to be vitiated by any convincing reasons on fact or in law and the second appeal is, therefore, to fail. The subject property is a mulgi in which the appellant is said to be carrying on business in stationery articles. The learned counsel for the appellant submitted that the appellant is a small time business man and any sudden dispossession from the suit mulgi will deprive him of his livelihood adversely prejudicing not only himself but also all the members of his family. Sri Yogesh Kumar Heroor, learned counsel for the respondent has no serious objection for grant of a reasonable time. Keeping in view all the facts and circumstances and further the fact that the appellant was solely dependent on the business he is running in the suit premises, grant of six months time to deliver vacant possession would be a reasonable time enabling the appellant to secure alternative accommodation to pursue his business thereafter. Accordingly, the second appeal is dismissed without costs, but the appellant is granted time of six months from today to vacate the subject premises and deliver vacant possession of the same to the respondent. _____________________ G. BHAVANI PRASAD, J Date: 15-06-2010 Svv [1] 2007 (4) ALT 348 (L.B.) [2] AIR 2001 ANDHRA PRADESH 226 [3] AIR 2006 SUPREME COURT 1734