HONOURABLE SRI JUSTICE ASHUTOSH MOHUNTA SECOND APPEAL No. 92 OF 2011 DATED 20TH SEPTEMBER, 2011 BETWEEN Polisetty Siva Ramkrishna …….Appellant And Maddula Rambabu ……Respondent HONOURABLE SRI JUSTICE ASHUTOSH MOHUNTA SECOND APPEAL No. 92 of 2011 JUDGMENT: This Second Appeal is filed aggrieved by the decree and judgment dated 7.08.2009 passed in A.S.No. 73 of 2005 by the learned Additional District Judge, Family Court-cum-Additional District Court, West Godavari, Eluru, confirming the judgment and decree dated 18.11.2004 passed in O.S.No. 555 of 2001 on the file of the learned Additional Junior Civil Judge, Eluru. The respondent herein is the plaintiff. He filed the aforesaid suit seeking to restrain the appellant/defendant from evicting him from the schedule property without adopting the due process of law. The trial Court upon considering the evidence on record, decreed the suit. Aggrieved by the same, the appellant/defendant preferred an appeal in AS.No.73 of 2005. The learned Additional District Judge, Eluru, dismissed the said appeal by decree and judgment dated 07.08.2009. The learned Counsel for the appellant/defendant sought to raise a substantial question of law-- whether the tenant, who is respondent/plaintiff is entitled to seek injunction against the landlord without payment of rents payable to him. He submitted that as the appellant/defendant did not take action for recovery of rents payable by the tenant, it cannot be said that the tenant, was paying rents regularly in the absence of production of proof to that effect. Before adverting to the contentions of the learned Counsel on either side, be it noted that the scope of this Court under Sec. 100 C.P.C. is quite narrow. Therefore, within the ambit of the appellate jurisdiction of this court under Sec. 100 CPC, it is to be seen that as to whether any substantial questions of law raised by the learned Counsel for the appellant in the Memorandum of Grounds need consideration and warrant any interference by this Court in this second appeal. Time and again, the Supreme Court held that this Court is entitled to exercise its power under Section 100 CPC only when a substantial question of law arises in a second appeal for adjudication but not otherwise Keeping in mind the law laid down by the Supreme C o u r t Panchugopal Barua v. Umesh Chandra Goswami (1997) 4 SCC 713 and Vijay Kumar Talwar Vs. Commissioner of Income Tax, Delhi, (2011) 1 SCC 673, I shall now proceed to examine the pleadings and evidence adduced by both the parties as well as the Judgments and Decrees of the Courts below so as to see whether the findings recorded by them are justified in law and on fact. It is not in dispute that the appellant/defendant is admitting the respondent/plaintiff as his tenant. It is the case of the respondent/plaintiff that he has been paying the rents regularly. However, as the defendant refused to receive the same, he sent the same through money order. On the other hand, it is the case of the appellant/defendant that the respondent/plaintiff is the defaulter in payment of rent from the month of July, 1991 onwards and he sub let the premises without obtaining his prior permission. It is to be seen that the defendant in his written statement and in chief-examination admitted that he never pondered to use force and violence to evict the plaintiff or his sub-tenant and that he reserved his right to file separate proceedings against the respondent/plaintiff for recovery of the rent payable to him and for eviction thereof. If that be so, if the tenant, i.e. respondent/plaintiff is the defaulter in payment of rent from the month of July, 1991 onwards, nothing prevented him to initiate appropriate legal proceedings against the tenant. But that was not done. Exs.A1 to A.3 reflects that the respondent/plaintiff is paying the rents to the appellant/defendant. Trite to state, a lawful tenant cannot be evicted from the tenancy premises in unlawful methods. As such, the trial Court rightly observed that the respondent/plaintiff being the lawful tenant in the schedule premises, the appellant/defendant is not entitled to evict him by using force and without taking recourse to due process of law. Holding so, it decreed the suit as prayed for. The lower appellate Court upon reappraisal of the evidence on record rightly confirmed the findings of the trial Court. On a perusal of the evidence on record, it is clear that if the appellant/defendant thought that the plaintiff was a defaulter in payment of rents from the month of July, 1991,he can choose to initiate appropriate legal proceedings either for recovery of rents due to him or for eviction from the schedule property. But, for the reasons best known to him, he did not choose to do so. Thus, an inference from the above can be drawn that the respondent/plaintiff is not a defaulter and he is a lawful tenant. Needless to observe, in as much as it was established that the respondent/plaintiff’s possession over the schedule property is lawful tenancy, the appellant/defendant should evict him only by following due process of law. For the foregoing discussion, I find no question of law much less a substantial questions of law, involved in the Second Appeal, which is liable to be dismissed. The Second Appeal is accordingly dismissed at the admission stage. There shall be no order as to costs. --------------------------------------------- JUSTICE ASHUTOSH MOHUNTA Dated 20th September, 2011. Msnro