*HON'BLE SRI JUSTICE G. BHAVANI PRASAD + S.A.No.1199 of 2009 & S.A.M.P.No.535 of 2010 S.A.No.1199 of 2009 % 06/07/2010 # P.V.V.A.V. Prasad ..... APPELLANT Vs. $ Shaik Mahaboob Basha .....RESPONDENT S.A.M.P.No.535 of 2010 # P.V.V.A.V. Prasad ..... PETITIONER/APPELLANT Vs. $ Shaik Mahaboob Basha .....RESPONDENT/RESPONDENT ! COUNSEL FOR THE APPELLANT: Sri K.S. Gopala Krishnan ^ COUNSEL FOR THE RESPONDENTS: Sri C. Raghu < Gist : Ø Head Note: ? CITATIONS: 1) AIR 2000 Supreme Court 2740 2) 2004 (8) Supreme Court Cases 76 3) AIR 2000 Delhi 349 4) 2007 (8) Supreme Court Cases 155 5) AIR 1974 Supreme Court 471 6) AIR 1999 Supreme Court 2626 7) AIR 2002 Supreme Court 2548 8) 2007 (5) Supreme 53 IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD TUESDAY, THE SIXTH DAY OF JULY TWO THOUSAND AND TEN HON’BLE SRI JUSTICE G. BHAVANI PRASAD S.A.No.1199 of 2009 & S.A.M.P.No.535 of 2010 Between: P.V.V.A.V. Prasad .. Appellant AND Shaik Mahaboob Basha .. Respondent S.A.M.P.No.535 of 2010 Between: P.V.V.A.V. Prasad .. Petitioner AND Shaik Mahaboob Basha .. Respondent COMMON JUDGMENT: The Second Appeal arises against the judgment and decree in A.S.No.196 of 2009 on the file of the Court of II Additional District Judge, Guntur, dated 26-10-2009 and S.A.M.P.No.535 of 2010 is filed by the appellant to pronounce the judgment in the Second Appeal based on the judicial admission made by the respondent in the written statement. O.S.No.1583 of 2007 before the Court of I Additional Junior Civil Judge, Guntur, was filed by the appellant for eviction of the respondent from the suit property, a shop at Guntur, and also for future damages at Rs.15,000/- per month and costs. The appellant claimed to have leased out the premises to the respondent for three years from 01-10-2003 for an agreed rent of Rs.5,000/- per month with interest free security deposit of Rs.25,000/-. The appellant alleged that since July 2006 the respondent became a chronic wilful defaulter in payment of rent and as the period of lease has also expired, the appellant has issued a notice to quit on 13-11-2006. The appellant alleged that the respondent managed to return the notice and did not pay the enhanced rent of Rs.7,500/- per month in February and March 2007. The appellant claimed to have issued another notice to quit on 04-04-2007 and claimed that the respondent paid Rs.15,000/- on 10-04-2007 to him towards the rent for February and March, 2007. The appellant alleged that the respondent again defaulted in payment of rents from October 2007 and hence, the suit. The suit was resisted by the respondent on the ground of entering into an unregistered lease deed again with the appellant for the period from 01-10-2006 to 30-09-2009. The respondent claimed that the appellant did not receive the rents since the filing of the suit though the respondent is ready and willing to deposit the amounts into Court. The respondent also contended that in case of any direction to vacate, he will suffer great loss and hardship and hence, he desired the suit to be dismissed with costs. The trial Court framed issues on the existence and truth of the unregistered lease deed claimed by the defendant/respondent, the entitlement of the appellant-plaintiff for eviction and future damages and the relief to which the appellant is entitled. During trial, the trial Court examined PW.1 and DW.1 and marked Exs.A.1 to A.6 and B.1 to B.16. The trial Court rendered its judgment on 16-03-2009 referring to the rival pleadings and evidence and firstly, concluding the unregistered lease deed to be inadmissible in evidence for any purpose as it was unstamped and unregistered. The trial Court consequently presumed the lease to be a monthly lease and considered the respondent to have presumably received the notices to quit. The trial Court also opined that the shop is being used for doing jewellary business without the consent of the landlord, which amounted to change of user of the premises for unauthorized purposes. The trial Court also opined that the notice to quit also satisfied the amended provisions of Section 106 of the Transfer of Property Act, 1882 and accepting the case of the appellant that the respondent was not regular in paying the rents, the trial Court concluded that the appellant was entitled to terminate the tenancy and take possession. The trial Court also concluded that in the absence of any evidence about the capability of the shop fetching a rent of Rs.15,000/- per month, the appellant may not be entitled to future damages and consequently, the trial Court decreed the suit with costs granting two (2) months time to the respondent to vacate and deliver vacant possession of the shop to the appellant. In A.S.No.196 of 2009 before the Court of II Additional District Judge, Guntur, the impugned judgment was rendered on 26-10-2009 again referring to the rival contentions of the parties and noting that the admitted facts are that the appellant is the landlord and the respondent is the tenant for a monthly rent of Rs.7,500/- per month from 01-10-2006 and that the appellant received the rents for February and March, 2007 on 10-04-2007. The first appellate Court concluded that there was no valid tender of notice to quit in the light of the endorsement that there was no such addressee in the door number and it was also concluded that the absence of any specification about receiving the subsequent rents under protest leads to an inference that the appellant waived the quit notice. The first appellate Court also concluded that the running of business by Khazana Jewellers in the premises also does not amount to unauthorized occupation as PW.1 admitted in his evidence that the defendant was doing business in that name. The first appellate Court also noted that any default in payment of rent from the date of filing of the suit was not made the basis of the claim for eviction and consequently, allowed the appeal and set aside the judgment and decree of the trial Court. The appellant is consequently before this Court with this second appeal contending that the substantial questions of law arise against the judgment of the first appellate court about ignoring taking note of the termination of the tenancy by September 2009 even as per the written statement of the respondent and also about the validity of the notice to quit. The second appeal was admitted on 11-02-2010 on the following two grounds considered to be substantial questions of law: 1) Whether the first appellate Court is correct in disallowing the claim of eviction by reversing the judgment and decree of the trial Court, particularly ignoring to take note of the crucial event that the tenancy got terminated in the month of September, 2009 even as per written statement of the respondent/defendant and committed grievous error in allowing the appeal without framing proper point for determination? 2) Whether the first appellate Court failed to notice the amendment to Section 106 of the Transfer of Property Act and went wrong in holding that there is no valid notice to quit. While so, the appellant filed S.A.M.P.No.535 of 2010 to pronounce the judgment in the second appeal on the admission made by the respondent about the extended lease under an unregistered lease deed in his favour being up to 30-09-2009 only. This application under Order XII Rule 6 of the Code of Civil Procedure is resisted by the respondent contending that any averments made in the written statement cannot be considered as admission under Section 17 of the Evidence Act and in any view, a petition under Order XII Rule 6 is not maintainable at the stage of second appeal, the scope of which should be confined only to any substantial question of law arising in the matter. When the rights of the parties crystalized as on the date of filing of the suit, the determination of the claim for eviction should be based only on the validity of the notice to quit and not on any alleged subsequent happenings. Sri K.S. Gopala Krishnan, learned counsel for the appellant and Sri C. Raghu, learned counsel for the respondent are heard at length and both the learned counsel relied on various precedents, which will be referred to in due course. Question No.1: Insofar as the facts and circumstances disclosed by the pleadings and evidence on record are concerned, the claim of the appellant about the lease expiring after three years since 1-10- 2003 was met by the conflicting plea of the respondent in the written statement about there being an unregistered lease deed in favour of the respondent from 1-10-2006 to 30-09-2009. While the suit appears to have been filed on 7-11-2007, it was disposed of by the trial Court on 16-03-2009, by which time the period claimed to have been covered by the unregistered lease deed, still did not expire and therefore, any questions in issue in the suit could not have been decided in the trial Court with reference to such a statement. However, by the time the first appeal was decided on 26-10-2009, the period specified by the respondent as being covered by the unregistered lease deed expired on 30-09-2009. It is seen from the copy of the grounds of appeal before the first appellate Court, which Sri C. Raghu, learned counsel, has been fair enough to provide for perusal of this Court, that a specific ground has been taken that the trial Court should have taken into consideration the unregistered lease deed, which is for the period up to 30-09-2009 and the appellant herein has no right to seek any relief of eviction as the lease period was not over as per the agreement dated 04-12-2006. Though this ground had been specifically taken against the finding of the trial Court about the inadmissibility of the lease deed in question for any purpose, the first appellate Court did not advert to this ground at all in its judgment. Coming to the precedents on the aspect, the decision reported in Uttam Singh Duggal and Company Limited v. United Bank of India and others[1] laid down that admissions are of many kinds and they may be considered as being on the record as actual if they are either in the pleadings or in answer to interrogatories or implied from the pleadings by non-traversal. Such admissions were held to be capable of being considered as admissions referred to in Order XII Rule 6 of the Code of Civil Procedure, the object of which is to afford relief not only in cases of admissions in pleadings, but also in the case of admission dehors pleadings. This authority on the scope and content of the admissions that can be acted upon within the meaning of Order XII Rule 6 makes it clear that statements made in the course of pleadings are capable of being construed as admissions for the purpose of this Rule. In Kedar Nath Agrawal and another v. Dhanraj Devi and another[2], the Apex Court also laid down that the basic rule is that the rights of the parties should be determined on the basis of the date of institution of the suit or proceeding and the suit/action should be tried at all stages on the cause of action as it existed at the commencement of the suit/action. That was, however, considered not to mean that events happening after institution of a suit/ proceeding cannot be considered at all. The Apex Court laid down that it is the power and duty of the Court to consider changed circumstances and a Court of law was held competent to take into account subsequent events in some specified circumstances including when it is necessary to take notice of subsequent events in order to shorten litigation or it is necessary to do so in order to do complete justice between the parties. The Apex Court extensively referred to the earlier precedents on the aspect and the Apex Court found fault with the High Court for not taking into account the changed circumstances by the time of its verdict. Hence, apart from the question whether the statement made in the written statement about the extension of the lease period under the unregistered lease deed expired by 30-09-2009 could have been taken as an admission by itself actionable under Order XII Rule 6 of the Code of Civil Procedure, the circumstance by the time of verdict of the first appellate Court that even the extended lease even according to the version of the respondent expired by that time ought to have been taken into account by the first appellate Court to shorten litigation and to do complete justice between the parties without referring them again to another litigation on the ground of the said circumstance not existing by the time of institution of the suit or that the said circumstance is not one which was admitted by the appellant. In Parivar Seva Sansthan v. Veena Kalra and others[3], the wide powers of the Court to pronounce the judgment under Order XII Rule 6 of the Code of Civil Procedure at any stage were reiterated and it was specified that the admission may have been made either in pleadings or otherwise. It was also held that the Court can act on its own motion on such admission without determining the other questions, which power is discretionary. However, it was cautioned that an admission should be taken as a whole and not in parts. Similarly, in Boodireddy Chandraiah and others v. Arigela Laxmi and another[4], it was pointed out that concurrent findings by the Courts below can be interfered with in a second appeal, if the Courts have ignored material evidence or have drawn wrong inferences from proved facts. The first appellate Court ignoring to take cognizance of the expiry of the period of lease even as per the respondent is, thus, canvassed to be within the scope of a substantial question of law conceived by Section 100 of the Code of Civil Procedure on the ground of either ignoring material evidence or drawing a wrong inference from proved facts. In Nagindas Ramdas v. Dalpatram Ichharam @ Brijram and others[5], the principle laid down is that admissions, if true and clear, are by far the best proof of the facts admitted and the admissions in pleadings were opined to be admissible as judicial admissions under Section 58 of the Evidence Act, which stands on a higher footing than evidentiary admissions. The admissions in pleadings were held to be fully binding on the party and to constitute a waiver of proof. Such admissions were held to be capable of being made the foundation of the rights of the parties and incidentally, that was also a case seeking eviction under the Rent Control Act decided on such an admission. Sri C. Raghu, learned counsel for the respondent, firstly, referred to State of Punjab & others v. Bakshish Singh[6] for the principle that an appellate Court cannot enlarge the scope of appeal with reference to Order XLI Rule 33 when the finding of the trial Court, which was categorical, was not controverted in the appellate judgment. The principle that the appellate Court cannot, in the garb of exercise of power under Order XLI Rule 33, enlarge the scope of appeal is unexceptionable, but, as already stated, when the respondent himself specifically raises a ground of appeal before the first appellate Court about the non-entitlement of the appellant herein to evict him before 30-09-2009 on the basis of an unregistered lease deed, the first appellate Court ought to have considered and decided the said ground vis-à-vis the finding of the trial Court about the inadmissibility of the lease deed for any purpose. If, in second appeal, the said question has to be, therefore, considered, it cannot be construed as travelling beyond Order XLI Rule 33 or to enlarge the scope of the second appeal. In Ram Khilona & others v. Sardar and others[7] also relied on by Sri C. Raghu, learned counsel for the respondent, it was held that a question neither taken in the memorandum of appeal nor taken in that form before the Courts below could not have been decided by the High Court in the second appeal upsetting the concurrent decisions of the courts below. But the principle does not appear to be applicable to the facts of the present case where the truth and validity of the unregistered lease deed was the specific subject matter of issue No.1 framed by the trial Court and was the subject of specific challenge in the grounds of appeal before the first appellate Court and not raised for the first time in the second appeal. If the existence, validity and effect of the unregistered lease deed was the subject of consideration before the trial Court and ought to have been considered by the first appellate Court, it cannot be excluded from consideration in the second appeal. Ram Kumar Barnwal v. Ram Lakhan[8] is also relied on by Sri C. Raghu, learned counsel for the respondent, in which the Apex Court held that the ordinary rule of civil law is that the rights of the parties stand crystalized on the date of institution of the suit and therefore, a decree in a suit should accord with rights of parties as they stood at the commencement of the lis. The Apex Court at the same time recognized that procedure is the handmaid and not the mistress of the judicial process and subsequent events of fact or law, which have a material bearing on the entitlement of the parties to relief or on aspects, which bear on the moulding of the relief occur, are not excluded from a cautious cognizance by the Court. A close perusal of the principle laid down clarifies that the ordinary rule of crystallization of the rights of the parties as on the date of the suit is always subject to an exception in appropriate cases of moulding the relief on the basis of the subsequent events of fact or law effecting a material change in the rights of the parties. Thus, a close consideration of the precedents cited by both the parties leads to the conclusion that a statement made in a pleading can be acted upon as an admission for the purposes of Order XII Rule 6 of the Code of Civil Procedure and irrespective of resorting to pronouncement of a judgment on the basis of the statement in the written statement of the respondent or not, the fact remains that the rights flowing out of the unregistered lease deed being the subject of a specific issue before the trial Court and a specific ground of appeal before the first appellate Court, the factum of expiry of the period of lease claimed by the respondent ought to have been taken into consideration by the first appellate Court as a subsequent event or circumstance having material bearing on the rights of the parties under adjudication. If so, therefore, the first appellate Court committed an error of law in not taking note of and acting upon the expiry of the period of lease by the end of September 2009 even according to the defence of the respondent in the written statement and irrespective of other considerations, when the lease stood determined by efflux of time, the first appellate Court should have moulded the relief to be granted in tune with the same. Question No.2: Concerning the validity of notice to quit, the first appellate Court went into the oral and documentary evidence in detail and noted that PW.1 was ignorant whether the respondent was residing in the address mentioned in the postal acknowledgment under Ex.A.3, which specified that there was no such addressee in that door number and hence, returned to the sender. The first appellate Court, with reference to a decision of the Madras High Court, which dealt with in detail about service and tender of such communications with reference to the statutory presumption under Section 114 of the Evidence Act and the relevant provisions of the General Clauses Act, concluded that there was no valid tender of notice to quit. Sri C. Raghu, learned counsel for the respondent, has brought to notice the discrepancies in the addresses given in the notice to quit and the postal acknowledgments marked as Exs.A.1 to A.3 respectively. In the absence of oral and documentary evidence probablising valid tender of notice to quit on the respondent, the requirement of Section 106 of the Transfer of Property Act cannot be considered to have been complied with as what has been relaxed by the statutory amendments by the Central Act 3 of 2003 amending Section 106 is the requirement concerning the period of notice, but not dispensing with the notice itself. It is true that sub-section 4 of Section 106 only requires tender of the notice to quit to the party concerned or sending of such notice to quit by post to the party and also permits affixture if tender or delivery is not practicable. But the said sub-section 4 cannot be considered as indicating the total absence of any necessity to prove a genuine attempt to serve such notice or a genuine tender of such notice, which was still not received by the party addressed. As the evidence on record in the suit coupled with the ignorance of PW.1 referred to by the first appellate Court is suggestive of the probable absence of a valid tender of notice to the respondent, the respondent could not have been entitled to suit reliefs on the basis of such notices to quit and this point is answered accordingly. Notwithstanding my concurrence with the first appellate Court on the invalidity of the notice to quit as a ground to reject the respondent’s eviction, in view of the conclusion about the liability of the respondent to vacate the premises on the expiry of the extended lease even according to his version, the plaintiff has to be granted the relief of eviction. Insofar as the future damages claimed in the suit are concerned, they were negatived by the trial Court, not interfered with by the first appellate Court and not made the subject of a substantial question of law in the second appeal and the same require no consideration. Sri C. Raghu, learned counsel for the respondent, submitted that the respondent is carrying on business in the premises since 2003 and any sudden dislocation from the premises will affect his livelihood being earned from the business. The possible difficulty which the respondent may encounter in securing an alternative accommodation in an equally central locality of Guntur suitable for commercial purposes need not be overstated and as the suit of the year 2007 is reaching its finality in the second appeal within about three years overcoming the proverbial laws delays, the appellant cannot have any serious objection for grant of reasonable time to the respondent to vacate the premises. The nature of the business, the dependence of the respondent on the same and the location of the premises may make grant of nine (9) months time to vacate the premises fair and reasonable under the circumstances, and this should, of course, be subject to payment of the agreed rent by the respondent regularly by 10th of every month during such period. Accordingly, the second appeal is allowed without costs and the judgment and decree in A.S.No.196 of 2009 on the file of the Court of II Additional District Judge, Guntur, dated 26-10-2009 are set aside and the judgment and decree of the trial Court in O.S.No.1583 of 2007 dated 16-03-2009 are confirmed granting the relief of eviction of the respondent from the suit schedule property and delivery of its vacant possession to the appellant. The respondent is granted nine (9) months time from today to so vacate and deliver possession and the same is subject to the payment of agreed rent by the respondent to the appellant by 10th of each month in the meanwhile. The appellant is