*THE HON’BLE SRI JUSTICE L.NARASIMHA REDDY + Second Appeal No.28 of 2011 %14-11-2011 # Shantilal Jain & another ..appellants And Smt. Rekha ..Respondent !Counsel for the appellants: Sri G. Dhananjai ^Counsel for respondent . : Sri Sharad Sanghi < Gist: > Head Note: Citations: THE HON’BLE MR JUSTICE L. NARASIMHA REDDY Second Appeal No.28 of 2011 JUDGMENT: The appellants are lessees in respect of the premises owned by the respondent at Bank Street, Hyderabad, since 1997. They ﬁled O.S.No.1159 of 2005 in the Court of III Junior Civil Judge, City Civil Court, Hyderabad, against the respondent for the relief of perpetual injunction to restrain the respondent from interfering with the possession or from evicting them from the premises, otherwise than through process, prescribed by law. On her part, the respondent ﬁled O.S.No.2965 of 2005 for eviction of the appellants from the same premises. Through common judgment dated 27-02-2008, the trial Court dismissed O.S.No.1159 of 2005 and decreed O.S.No.2965 of 2005. The appellants ﬁled A.S.No.115 of 2008 in the Court of XII Additional Chief Judge (FTC), City Civil Court, Hyderabad, against the decree in O.S.No.2965 of 2005. The appeal was dismissed on 29-12-2010. Hence, this Second Appeal. Sri G. Dhananjai, learned counsel for the appellants submits that the suit itself was not maintainable, inasmuch as there existed a clause in the agreement, dated 01-01- 1997, providing for renewal of the lease. He contends that though no speciﬁc issue was framed on this aspect, the trial Court and lower Appellate Court ought to have taken the same into account. He further submits that in the course of trial, the respondent admitted that the rent for the premises as such was less than Rs.3,000/- per month, and on the basis of that admission, the trial Court ought to have rejected the plaint, leaving it open to the respondent to approach the learned Rent Controller. He submits that the fact that the appellants made a deposit of Rs.8 lakhs was not taken into account, and that the decree passed by the trial Court and conﬁrmed by lower Appellate Court cannot be sustained in law. Sri Sharad Sanghi, learned counsel for the respondent, on the other hand, submits that the Second Appeal is barred by constructive res judicata, since the appellants did not ﬁle any ﬁrst appeal or second appeal against the decree in O.S.No.1159 of 2005. He contends that no plea was raised in the written-statement, as to the maintainability of the suit, much less about the renewal of lease. He submits that if, in fact there was a clause for renewal of lease, the only option for the respondent was, to ﬁle a suit for speciﬁc performance, in the event of the request therefor not being acceded to. He further submits that no deposit was made by the appellants, and that no plea of that nature was raised in the suit filed by them. The trial Court clubbed both the suits, referred to above, and heard them together. The following issues were framed in O.S.No.2965 of 2005: 1. “Whether the defendant is liable to vacate physical possession of the suit schedule property as prayed by the plaintiff? 2. Whether the defendant is liable to pay an amount of Rs.12,000/- per month towards damages as prayed for?” In the common evidence that was recorded by the trial Court, the husband of the respondent herein deposed as PW-1 and filed Exs.A-1 to A-4. The 1st appellant deposed as DW-1, and he ﬁled Exs.B-1 to B-6. The suit was decreed, and in A.S.No.115 of 2008 ﬁled by the appellants, the lower Appellate Court conﬁned its consideration only to the validity of the notice, issued under Section 106 of the Transfer of Property Act (for short ‘the T.P. Act’). The appeal was ultimately dismissed. The Second Appeal is preferred against the concurrent judgments of the trial Court and lower Appellate Court. There is an important ground that militates against the appellants. As observed earlier, both the parties ﬁled separate suits and the trial Court dealt with them, together. The decrees went against the appellants. In case the appellants wanted to assail the correctness of the common judgment, they were required to prefer appeals against both the decrees. However, they have chosen to ﬁle appeal against only one decree. The result was that, on account of failure to prefer appeal against the other decree, the judgment in relation thereto became ﬁnal and it operates as res judicata, vis-à-vis the other decree. Coming to the merits of the matter, the appellants did not dispute the relationship of lessee and lessor, between them and the respondent. No serious inﬁrmity was pointed out in the notice issued under Section 106 of the T.P. Act, which was marked as Ex.A-3. Once a notice is found to be valid, the plea as to irregularity in payment of rents or non- existence of any necessity of the premises for the owner, become irrelevant and pale into insignificance. Much argument was advanced on behalf of the appellants to the eﬀect that the trial Court and the lower Appellate Court committed illegality in not taking on record, the agreement dated 01-01-1997. The record does not disclose that any eﬀorts were made by them, to bring the said document on record. At any rate, the tenure of the lease under that agreement was only 11 months, and with the expiry of that period, the lease became the one, from month to month. It was subject to termination, by issuing a notice under Section 106 of the T.P Act. Assuming that the eﬀorts made by the appellants to bring the agreement on record did not fructify, no prejudice can be said to have been caused to them. Argument is also advanced about the so-called admission on the part of the respondent that the rent payable was only Rs.2,500/- per month, at the commencement of the lease, and that it was liable to be enhanced from time to time. On the basis of this, it is urged that the rent was less than Rs.3,000/- per month, and in that view of the matter, the jurisdiction of the Civil Court stood excluded by operation of the provisions of the A.P. Buildings (Lease, Rent and Eviction) Control Act, 1960. However, a perusal of the judgment of the trial Court discloses that in their plaint in O.S.No.1159 of 2005, the appellants themselves plead that the rent payable for the premises as on the date of institution of the suit was Rs.5,361/- per month. That is sufficient to put an end to any controversy in this regard. The rent of Rs.2,500/- was mentioned by the respondent in the course of narration of the events from the commencement of the lease. The plea of the appellants, that a sum of Rs.8 lakhs was deposited by them and that the same was not taken into account by the trial Court; can not at all be accepted. In their written-statement no such plea was speciﬁcally raised. Naturally no issue was framed, much less any evidence was adduced. The appellants cannot be permitted to urge the said ground at this stage. At any rate, these issues are outside the scope of the suit ﬁled on the strength of a notice, under Section 106 of the T.P. Act. Viewed from any angle, there is no substantial question of law in the Second Appeal. It is accordingly dismissed. Learned counsel for the appellants submits that his clients may be granted reasonable time to vacate the premises, since they are doing business in electronics. The request is opposed by the respondent. Having regard to the facts and circumstances of the case, time till 1st October, 2012 is granted, subject to payment of rents, on or before 10th of every month. Arrears, if any, shall be cleared within six weeks from today. There shall be no order as to costs. _______________________ L. NARASIMHA REDDY, J. Dt.14-11-2011. Note: LR copy to be marked. (B/O) KO