HON’BLE SRI JUSTICE A.GOPAL REDDY CRP Nos.2048 and 2049 of 2009 DT. 22-07-2011 CRP No.2048/2009: Anoop Kaur , Proprietrix of M/s Seven Seas Family Restaurant, Vijayawada. …Petitioner V. M/s. Standard Tyres & Motors, represented by its Partner Kuldeep Singh Kandhari, Vijayawada ..Respondents The Court made the following: HON’BLE SRI JUSTICE A.GOPAL REDDY CRP Nos.2048 and 2049 of 2009 COMMON ORDER: Since these two revision petitions arise out of one and the same common judgment, they are heard together and being disposed of by this common order. These two revision petitions under Section 115 of the Code of Civil Procedure are filed against the common order dt. 16- 3-2009 passed in CMA No.30/2007 and cross-objections on the file of V Additional District Judge, Vijayawada, respectively, whereby the learned appellate Judge allowed the appeal filed by the plaintiff and dismissed the cross-objections filed by the defendant. The revision petitioner in both the revision petitions will hereinafter referred to as “the defendant” and the respondent in both the revision petitions will hereinafter referred to as “the plaintiff”. The plaintiff instituted OS No.995/2003 in the court of Principal Senior Civil Judge, Vijayawada against the defendant for eviction of the defendant from the plaint schedule property; for payment of arrears of rent at Rs.89,000/- and damages at Rs.15,000/- per month from 1-12-2003 till the date of eviction of the defendant from the plaint schedule premises for his unauthorized use and occupation of the premises. The case of the plaintiff is that the defendant has taken the plaint schedule premises on lease for doing business in the name and style of M/s. R.R.S. Enterprises, Vijayawada. Previously, entire ground floor was occupied by the earlier tenant, namely, M/s. Sri Sai Sindhu Tyres and Motors and was paying a sum of Rs.12,000/- towards monthly rent ie., Rs.6,610/- towards rent and Rs.5,290/- towards amenities. On its vacation by the previous tenant in the month of September, 2002, the same was let out to the defendant, who agreed to pay Rs.12,500/- towards rent and amenities and deposit a sum of Rs.1,50,000/-, but the defendant paid only Rs.1,30,000/- in two instalments towards deposit and for renovation of the premises as requested by the defendant, the plaintiff incurred a sum of Rs.3,14,000/- to suit the defendant’s business. The defendant had only paid Rs.36,000/- towards rent and amenities by way of six cheques for Rs.6,000/- each leaving the balance amount of Rs.1,00,000/- towards rent and amenities and Rs.64,000/- is due by the defendant towards arrears of rent and amenities. The defendant is also liable to pay Rs.1,84,000/- after appropriating the advance amount of Rs.1,30,000/- paid by the defendant. In stead of evicting the premises, the defendant filed OS No.2769/2003 on the file of I Additional Junior Civil Judge, Vijayawada against its partner Kuldeep Singh Kandhari for permanent injunction. The defendant not only committed willful default in payment of monthly rent and amenities but also caused extensive damage to the plaint schedule premises. Notice under Sec. 106 of the Transfer of Property was issued to the defendant. The same was replied by the defendant with untenable allegations. The suit was contested by the defendant by filing written statement stating that the rent was fixed at Rs.6,000/- and the plaintiff demanded Rs.2,30,000/- and accordingly, the defendant paid Rs.2,30,000/- but a receipt was passed only for Rs.1,30,000/-. The defendant spent Rs.4,50,000/- for renovating the building structures and also a sum of Rs.6,30,000/- towards interior decorations and insured the plaint schedule premises for a sum of Rs.7,90,000/-.The entire area of the plaint schedule premises is only 1032 sq.feet for which the present monthly rent being paid by the respondent is only Rs.6,000/-. The defendant denied the allegation made by the plaintiff that he built tandoori furnace and gas stoves etc., for doing the business of restaurant in the name of Seven Seas Family restaurant in stead of Stereo System. In fact, the suit premises was particularly opted by the defendant and her husband only for the purpose of running a restaurant business of Punjabi foods. On the above pleadings, the trial court settled the following issues for trial” 1. Whether the plaintiff is entitled to eviction of the defendant from the suit premises? 2. Whether the plaintiff is entitled to damages as claimed in the suit? Additional issues framed on 28-9-2006: 1. Whether the rent is Rs.6000/- per month? 2. Whether this court has got territorial jurisdiction to entertain this suit? 3. Whether the quit notice issued by the plaintiff is legal and valid? 4. Whether the tenancy period is 29 years? 5. To what relief? On behalf of the plaintiff, P.Ws.1 and 2 were examined and Exs.A-1 to A-12 were marked. On behalf of the defendant, D.Ws.1 and 2 were examined and Exs.B-1 to B-33 were got marked. The trial court answered additional issue No.1 in favour of the defendant holding that the rent of the premises per month is only Rs.6,000/- but not Rs.12,500/-. In view of finding on additional issue No.1, additional issue No.2 has been answered in favour of the defendant holding that this court has no pecuniary jurisdiction to entertain the suit. Issue No.1 has been answered by the trial court in favour of the plaintiff and against the defendant holding that the defendant is liable to be evicted from the suit schedule premises. On additional issue Nos.3 and 4, the trial court held that the notice under Sec. 106 of the Transfer of Property Act is valid. In view of termination of tenancy by issuing notice under Sec. 106 of the Transfer of Property Act, issue No.2 has been answered in favour of the plaintiff holding that the plaintiff is entitled to damages. In view of answering additional issue No.2, on issue No.3, the trial court held that the court has no pecuniary jurisdiction to entertain the suit and the plaint is ordered to be returned to the plaintiff for presentation before the proper court. Aggrieved by the judgment of the trial court dt. 24-9- 2007, particularly on the findings on additional issues 1 and 2 and issue No.3, the plaintiff filed CMA No.30/2007 before V Additional District Judge, Vijayawada, in which the defendant filed cross- objections contending that once the court comes to the conclusion that court has no pecuniary jurisdiction to try the suit, it will not answer the other issues. The lower appellate court by the impugned judgment dt.16-3- 2009 while allowing the Civil Miscellaneous Appeal holding that the civil court has got pecuniary jurisdiction to entertain the suit; the plaint need not be returned for presentation before proper court as order by the trial court; the suit is liable to be decreed as prayed for and the learned Principal Senior Civil Judge, Vijayawada, is directed decree the suit as prayed for, dismissed the cross-objections filed by the defendant observing as follows: “But in the present suit, the trial was completed and the evidence was adduced and the suit itself was disposed lof by the learned Principal Senior Civil Judge by answering all the issues. The issue of pecuniary jurisdiction of the court was not decided in the suit as a preliminary issue. The issue of pecuniary jurisdiction was decided by the lower court along with all the other issues. Therefore, I am of the view that the observations of their Lordships in the aforesaid cited two decision have no application to the present facts of the case. Hence the contentions of the learned counsel appearing for the respondent/defendant and the cross-objections of the respondent are liable to be dismissed.” Questioning the judgment of the lower appellate court, the plaintiff preferred the present appeals. Sri K. Someswar Kumar, learned counsel appearing for the revision petitioner in both the revision petitions contended that in view of the finding recorded by the lower appellate court that even if the lower court decreed the suit on other issues, he cannot file an appeal questioning the said finding since the finding recorded by the lower appellate court has become final and the same is liable to be set aside. In support of the said submission, he placed reliance on the judgment of the High Court of Madras in T.R.S.MANI V. I.R.P (RADIO) PRIVATE LTD[1] In the above cited decision, the Madras High Court while holding that “when the plaint was not within his cognizance and returning the same for presentation to the proper court, the trial court proceeded to give the findings on other issues in the case. The findings on other issues amount to rejection of the plaintiff’s claim altogether and he could not have appealed against those findings, as there was no decree against it on the basis of those findings. The only decretal order passed in the case is the order returning the plaint for presentation to the proper court” set-aside the order returning the plaint and directed the lower court to take the suit on file and dispose of the other issues therein. Admittedly, in the present case, there is no decree for eviction or for payment of arrears of rent. But the trial court ordered that the plaint be returned to the plaintiff for presentation before the proper court, against which the plaintiff cannot file any appeal on the findings on other issues. Once the issue has been answered that the court will have jurisdiction, the lower appellate court should have remanded the same to the lower court without recording any finding or upholding any finding. On such remand, if the lower court decreed the suit in view of the finding recorded on other issues, the plaintiff will have an opportunity to question the said finding, if she advised in the appeal. In view of the same, the finding recorded by the lower appellate court in the impugned judgment that the suit is liable to be decreed as prayed for by the plaintiff and direction issued to the trial court to decree the suit as prayed are set-aside, and while upholding the remand order, it is ordered that the trial court shall proceed with the suit in accordance with law. Both the Civil Revision Petitions are accordingly allowed to the extent indicated above. There shall be no order as to costs. _______________ A. GOPAL REDDY, J Date: 22-07-2011 kmr [1] 1962 TLMAD 136= 1962 MADLJ-2-270