HONOURABLE SRI JUSTICE VILAS V. AFZULPURKAR SECOND APPEAL No.1258 OF 2006 Dated 31-5-2010 Between: Syed Shamshul Huda. …Appellant. And: Anand Ram Khushalani and others. …Respondents. HONOURABLE SRI JUSTICE VILAS V. AFZULPURKAR SECOND APPEAL No.1258 OF 2006 JUDGMENT: This appeal is filed by the landlord questioning the Judgment and Decree passed by the learned VII Additional District Judge (FTC), Vijayawada on 5-6-2006 whereunder an appeal in A.S.No.387 of 2005 preferred by the tenant was allowed. The appellant herein is the admitted landlord and the respondent herein is the tenant. Previously, there was an eviction proceedings against the respondent in R.C.C. No.212 of 88 which ended in compromise dated 1.7.1998 whereunder the tenant agreed to pay a monthly rent at the rate of Rs.2,300/- with 25% increase for every three years. Subsequently, while rent was Rs.2,500/- per month, the appellant-landlord terminated the tenancy of the respondent under Section 106 quit notice Ex.A.1. The Quit notice was followed by the present suit for eviction in O.S.No.706 of 2001 on the file of the II Additional Junior Civil Judge Court, Vijayawada. The said suit was decreed by the trial Court and aggrieved thereby, the respondent herein filed an appeal before the lower appellate Court which has been allowed under the impugned order. Heard both sides. It is contended on behalf of the appellant that the finding of the lower appellant Court holding that the suit schedule premises is governed by the Rent Control Act is directly opposed to the larger Bench Judgment of this Court in RAMVILAS BAJAJ v. ASHOK KUMAR ([1]). The learned counsel for the respondent submits that Ex.B.5, on the basis of which the tenant had claimed the lease, was not considered by the lower appellate Court and irrespective of the finding of the lower appellate court, with regard to the jurisdiction, which is covered by the larger Bench judgment referred above, the lower appellate Court ought to have gone into that aspect as well. It is well settled by the larger Bench that the amendment to the A.P. Buildings [Lease, Rent and Eviction] Control Act, 1960, (17 of 2005) is only prospective and it does not cover the pre- existing tenancies and the rent in the present case being admitted at Rs.2,500/- per month, in view of the said larger Bench judgment, the suit is perfectly maintainable and the finding reached by the lower court in the impugned judgment is directly opposed to the said larger Bench judgment and the same is clearly unsustainable and hence, the same is liable to set aside . So far as the other findings of the lower appellate Court describing the appellant-land lord as a greedy person in view of his seeking damages at Rs.5,000/- per month is concerned, I am of view that the same is also equally unwarranted. Once the tenancy is terminated, it is open for the landlord to seek mesne profits at such rate as prevailing in the locality subject to his proving the same. Therefore, there cannot be any question of landlord being greedy as understood by the lower appellate Court. This Court had admitted the Second Appeal on the substantial questions of law which include the question as to whether the A.P. Amendment Act 17 of 2005 is prospective or retrospective and as same has already been answered by the larger Bench holding that it is only prospective, the impugned judgment of the lower appellate Court is liable to be set aside and is accordingly set aside. As there is non-consideration of Ex.B5, it is appropriate that same is considered by lower appellate Court. Accordingly, the appeal is allowed and consequently the matter is remitted to the lower appellate Court for fresh disposal in accordance with law. However, since the appeal is of the year 2005, the lower appellate Court is directed to hear and decide the appeal within a period of two months from the date of receipt of a copy of this Judgment. The costs of this Second appeal shall abide to the result of the appellate Court Judgment in appeal which is hereby remitted. _____________________________________ Justice VILAS V. AFZULPURKAR Dated 31-5-2010. Dvs HONOURABLE SRI JUSTICE VILAS V. AFZULPURKAR SECOND APPEAL No.1258 OF 2006 Dated 31-5-2010 [1] 2007 (4) ALD 137 (LB)