HON’BLE SRI JUSTICE B. PRAKASH RAO AND HON’BLE SRI JUSTICE P. DURGA PRASAD L.P.A.No.404 of 2001 and C.R.P.No.982 of 2002 Date: 28-04-2011 L.P.A.No.404 of 2001: Between: Sri Vijay Singh Jesrani ……. Appellant And Smt. Nasinin Ahsan and others ……. Respondents HON’BLE SRI JUSTICE B. PRAKASH RAO AND HON’BLE SRI JUSTICE P. DURGA PRASAD L.P.A.No.404 of 2001 and C.R.P.No.982 of 2002 COMMON JUDGMENT: (Per BPR, J) Since the appeal and the revision arise between the same parties, hence, they are taken up together for disposal. The appellant is the defendant, who filed the appeal under Clause 15 of the Letters Patent aggrieved against the judgment and decree of the learned single Judge of this Court, dated 07-08-2001 in dismissing the appeal in C.C.C.A.No.13 of 1992 confirming the judgment and decree, dated 13-12-1991 in O.S.No.758 of 1987 on the file of the II Additional Judge, City Civil Court, Hyderabad. The facts in brief, which gave rise to these proceedings, are that in the suit the plaintiffs-respondents herein sought for recovery of possession and for arrears of rent for use and occupation of the suit premises and for ejectment of the defendant from the suit premises. The case of the plaintiffs in brief in the plaint is that they claim to be the absolute owners and possessors of the suit premises. The defendant entered into an agreement of sale, dated 16-03-1979 to purchase the said premises for a consideration and paid advance amount towards part payment of the sale consideration, however, he failed to honour the terms contained in the agreement. The defendant has been in possession of the premises as a tenant prior to the agreement and therefore, the plaintiffs issued a notice, dated 25-05-1985 under Section 106 of the Transfer of Property Act, 1882 (for short ‘the Act’), terminating the tenancy and also claiming damages. Inspite of the same, since the defendant did not comply, the plaintiffs filed the suit seeking the aforesaid reliefs. Contesting the claim, the appellant-defendant tried to fall back on the agreement and blaming the plaintiffs for their failure to adhere to the terms contained in the agreement. Therefore, his possession being in pursuance of an agreement of sale, dated 16-03-1979, it is protected under Section 53A of the Act and therefore, he is liable neither for eviction nor for payment of damages as claimed. Apart from that the notice issued under Section 106 of the Act is also not valid. With these and other detailed allegations as contained in the respective pleadings, the trail Court framed the following issues for consideration: 1. Whether there exists relation of landlord and tenant between the plaintiff and defendant? 2. Whether the plaintiffs are entitled for recovery of Rs.47,550/- as arrears of rent? 3. Whether the plaintiffs are entitled to seek eviction of the defendant in pursuance of the legal notice dated 25-5-1985? 4. Whether the plaintiffs’ possession over the suit property is protected under Section 53A of the Transfer of Property Act? 5. Whether the plaintiffs are entitled to damages @ Rs.2,000/- p.m. as prayed for? 6. Whether the notice of termination of tenancy of the defendant is valid? 7. Whether the defendant is liable for ejectment? 8. To what relief? Subsequently, the parties went into trial during which the second plaintiff examined himself as PW-1 and marked Exs.A-1 to A-7. Whereas the appellant-defendant examined himself as DW-1 and marked Exs.B-1 and B-2. Considering the aforesaid evidence, the trial Court decreed the suit repelling the contentions of the appellant-defendant and holding that there exist relationship of landlord and tenant between the plaintiffs and defendant and the notice, dated 25-05-1985 issued by the plaintiffs is thus valid and therefore, the appellant-defendant is not entitled for protection under Section 53A of the Act. Consequently, the plaintiffs are held to be entitled for damages and further the notice terminating the tenancy is valid. Aggrieved thereby, the appellant-defendant preferred an appeal before this Court under Section 96 of C.P.C. A learned single Judge, on considering the submissions made from both sides and addressing the issues as raised on behalf of the appellant-defendant and as repelled by the respondents therein, dismissed the appeal rejecting similar such contention about the plea of protection under Section 53A of the Act holding that the same is not available to the appellant-defendant. While so, the learned single Judge referred to the various precedents which have been cited across the bar. The learned single Judge once again did make an exercise of considering the evidence of the appellant-defendant and also that of the plaintiffs and held that the appellant-defendant has not taken any steps for registration of the sale deed and thus, agreeing with the opinion of the trial Court, it is observed that the appellant-defendant failed to discharge his burden to the effect that he is ready and willing to perform his part of contract and therefore, the protection under Section 53A of the Act cannot be extended nor can be pleaded by him. Hence, this Appeal. In the Revision in C.R.P.No.982 of 2002, the above referred appellant-defendant is the revision petitioner who invoking Section 115 of C.P.C. sought to assail the correctness of the order, dated 27- 02-2002 in dismissing the application in I.A.No.297 of 2002 filed under Section 5 of the Limitation Act, seeking condonation of the delay in filing the application for restoration of the suit in O.S.No.859 of 1988 on the file of the V Senior Civil Judge, City Civil Court, Hyderabad, which was filed by appellant-defendant seeking specific performance of the very same agreement of sale, dated 16-03-1979. Having considered the submissions made on either side and on perusal of the material on record, the points, which boils down for consideration, are firstly as to whether, on the facts and circumstances, the plea of the appellant-defendant purportedly for protection under Section 53A of the Act is available? and secondly as to whether, on the facts and circumstances, the revision petitioner is entitled to seek condonation of delay in filing the application for restoration of the suit filed by him for specific performance. Coming to the first point, admittedly the appellant-defendant has been a tenant and a notice terminating the tenancy was issued. Both the appellant-defendant and the revision petitioner are the sole testimonies who spoke in their favour respectively about the case as set forth. The agreement of sale was entered into on 16-03-1979, whereas the case of the plaintiffs is that having failed to comply with the terms and obligations of the agreement, the appellant-defendant is not entitled to any benefit thereunder and further the tenancy has been terminated by issuing the notice under Section 106 of the Act on 25- 05-1985. The said notice was marked as Ex.A-3, whereas the agreement was marked as Ex.A-2 by the plaintiff himself. The factum of agreement and the non-compliance of the terms contained therein have been duly referred to by the plaintiffs in the plaint and has been also reiterated in the deposition of PW-1. Whereas the case of the appellant-defendant, both in his written statement and in the deposition as DW-1, is once again falling back on the said agreement and the pleading for protection under Section 53A of the Act. Both the trial Court and as well as the learned single Judge, on a consideration of the evidence and the material on record, did not accept the said plea of availability of such protection to the appellant-defendant. At both levels detailed reasons have been given in support apart from the documentary material which has been referred to. Thus the finding given by the trial Court and as well as by the learned single Judge to the effect that even though there was such agreement, but however the same was not adhered to and there was a breach on the part of the appellant-defendant himself is a pure finding of fact. Further, having regard to such failure on the part of the appellant-defendant, who has been a tenant, necessarily he remains only as a tenant, but not as a person claiming to be under such agreement of sale. Therefore, having regard to such finding of fact, which is concurrent, this Court cannot once again re-appreciate the material or evidence to come to any different conclusion. Nor does this Court find that there is any such perversity by want of any proper basis while coming at such conclusions. Hence, we cannot find fault in any manner whatsoever nature. Accordingly, we do not find any reason to come to any different conclusion or to interfere with the said finding, nor on behalf of the appellant any question of law has been raised which would virtually negate the very finding given at such two levels. Now coming to the second point, the application is filed by the appellant-defendant, who is the revision petitioner herein, seeking condonation of the delay in filing the application for restoration of the suit which has been filed by him seeking specific performance. It is seen, as rightly observed by the trial Court, that the revision petitioner is very much active and participating in these parallel proceedings in the suit filed by the respondents in the revision petition for eviction and for damages. The said suit was disposed of and the appeal was disposed of by this Court and later the present appeal is pending. All along there has been a persuasion on the part of the revision petitioner in all these proceedings. However, yet there is a total silence on his part in explaining the day-to-day delay with a sufficient reason so as to seek any indulgence from the Court. Having regard to the fact that there being no dispute on the above factual aspect about the participation of the revision petitioner in the parallel proceedings, it cannot be said that there is any such justification for the revision petitioner to stay away from the proceedings in a suit which is filed by himself or to show any neglect which is patently a wanton and unsustainable. In view of the same, we do not find any reason to come to any different conclusion or to condone the delay for want of any reason much less a sufficient one. For the reasons mentioned above, we do not find any merits both in the appeal and in the revision. Accordingly, the appeal and the civil revision petition are dismissed. No order as to costs. _________________ B. PRAKASH RAO, J __________________ P. DURGA PRASAD, J Date: 28-04-2011 YCR