Andhra HC (Pre-Telangana)
Kondadasu Ranga Rao vs Batchu Naga Venkata Satyanarayana on 17 September, 1998
Equivalent citations: 1998(6)ALD532, 1998(6)ALT485, 1999 A I H C 757, (1999) 2 RENTLR 268, (1998) 2 LS 550, (1999) 2 RENCJ 91, (1999) 1 RENCR 67, (1998) 6 ANDHLD 532, (1998) 6 ANDH LT 485, (1998) 3 APLJ 300, (1999) 3 CIVLJ 147
JUDGMENT
1. This appeal has been preferred against the Judgment and decree dated 15-11-1989 passed in AS No.25 of 1983 on the file of the Sub-Court, Gudivada, confirming the Judgment and decree dated 8-9-1983 passed in OS No.112 of 1982 on the file of the District Munsif, Gudivada in Krishna District.
2. The appellant herein is the first defendant and the respondent herein is the plaintiff in the said suit OS No.112 of 1982. The parties are being referred as they are arrayed in the suit.
3. The respondent-plaintiff filed the said suit for eviction and for delivery of possession of the suit building bearing Door Number 3/114 situated in Gudlavalleru village along with the adjacent open site, for recovery of arrears of rent and damages for use and occupation of the said building. It is the case of the plaintiff that the first defendant took the suit building on lease from the plaintiff on 1-7-1977 for a period of 11 months for the purpose of running a shoe shop on a monthly rent of Rs. 150/- apart from electricity charges and executed an agreement of lease. The first defendant failed to vacate the premises on the expiry of the said lease and thus continued as tenant-holding over and rent was enhanced to Rs.210/- per month from 1-3-1980. The first defendant sub-leased the southern portion of the building to the second defendant on a monthly rent of Rs.100/-. The first defendant also committed default in paying monthly rent from 1-12-1980. Hence the plaintiff issued registered notice to the defendants on 20-1-1982 terminating the tenancy and claiming arrears of rent and also damages for use and occupation at Rs.400/- per month and the first defendant issued a reply with false allegations. Hence the plaintiff filed the suit for the reliefs as stated supra.
4. Resisting the claim of the plaintiff, the defendants 1 and 2 filed their written statements. The first defendant admitted the tenancy but he pleaded that he took the suit premises on lease on 1-7-1975 on a monthly rent of Rs.210/- and that he gave Rs.2,520/-as advance to the plaintiff and that he was not in arrears of rent and that he has not sublet any premises to the second defendant and that he is not liable to pay damages at the rate of Rs.400/- per month. The second defendant also pleaded in his written statement denying the alleged sub-tenancy, but he pleaded that he stored cement in a portion of the suit building for a little period with the permission of the first defendant without paying any rent and that he vacated that portion of the suit building in November 1981.
5. The trial Court settled the following issues:
(i) Whether the plaintiff is entitled for eviction and for possession?
(ii) Whether the plaintiff is entitled to arrears and damages and if so at what rate?
(iii) To what relief?
During the course of trial, the plaintiff got himself examined as PW1 and marked Exs. A1 to A5. On behalf of the defendants 1 and 2, they got themselves examined as DWs. 1 and 2 and marked Exs.B1 to B19. On a consideration of the oral and documentary evidene on record, the trial Court found on issue No. 1 that the first defendant is liable to be evicted from the suit building and that the plaintiff is entitled for possession of the same and on issue No.2 that the plaintiff is not entitled for arrears of rent from 1-12-1980 onwards, but he is entitled for arrears of rent from 1-1-1982 onwards and for future damages for use and occupation at Rs.250/- per month. Consequently, the trial Court decreed the suit with costs against the first defendant directing eviction of the first defendant from the suit building and also to pay damages at the rate of Rs.250/- per month from 20-3-1982 till the date of delivery deducting the amount already deposited into Court.
6. Aggrieved of that judgment and decree, the first defendant preferred appeal AS No.25 of 1983. The lower appellate Court on re-appreciation of the entire evidence on record independently, concurred with the findings of the trial Court and consequently confirmed the Judgment and decree of the trial Court and dismissed the appeal with costs. Aggrieved of that Judgment and decree, the first defendant has come up with this second appeal.
7. The learned Counsel for the appellant-first defendant vehemently contends that both the trial Court as well as the lower appellate Court failed to appreciate the entire evidence on record and came to a wrong conclusion and it resulted in mis-carriage of justice, hence this Court has jurisdiction to interfere with the findings of both the Courts below under Section 100 CPC. The learned Counsel for the appellant further submits that there is no valid quit notice issued by the landlord-plaintiff under Section 106 of the Transfer of Property Act 1882 (hereinafter referred to as the TP Act') and that the plaintiffs suit for eviction is not maintainable in a Civil Court in view of the Judgment of the Supreme Court in Motor General Traders v. State of Andhra Pradesh, AIR 1984 SC 121, dated 26-10-1983 and the plaintiff should apply for eviction under the A.P. Buildings (Lease, Rent and Eviction) Control Act, 1960 (hereinafter referred to as the 'Rent Control Act').
8. The learned Counsel for the respondent-plaintiff, on the other hand, submitted that in view of the concurrent findings of both the Courts below it is not open for this Court to interfere under Section 100 CPC. The learned Counsel for the respondent further submits that the other two pleas that there is no quit notice under Section 106 of TP Act and that the plaintiff's suit for eviction is not maintainable were not pleaded in the written statement and for the first time such pleas have been taken up in this second appeal and as such they are not maintainable.
9. It is well settled that the jurisdiction of the High Court to entertain a Second Appeal under Section 100 CPC after the 1976 Amendment is confined only to such appeals as involved a substantial question of law. The existence of a substantial question of law and not a mere question of law, is the sine qua non for the exercise of the jurisdiction under Section 100 CPC. In Dudh Nath Pandey (dead) by L.R.'s v. Suresh Chandra Battasali (dead) by L.R.'s, , the Apex Court held that "High Court cannot set aside the findings of fact of the first appellate Court and come to a different conclusion on reappraisal of the evidence". There are innumerable subsequent decisions of the Supreme Court which have held that the concurrent findings of fact of the trial Court and the first appellate Court cannot be interfered with by the High Court in exercise of its jurisdiction under Section 100 CPC vide Smt. Kamala Devi Budhia v. Hem Prabha Ganguli, ; Smt. Jahejo Devi v. Moharum Ali, ; P. Velayudan v. Kurunghat Imichivia Moidu etc., 1990 Supp. SCC 9; Ramaswamy Kalingaryat v. Mathayan Padayachi, and Kashi Bai and another v. Parvathi Bai and others, Judgments Today 1995 (7) SC 48; Ramanuja Naidu v. Kannaiah Naidu and others, . Again in Navaneethammal v. Arjun Chetty, AIR 1996 SC 3521, their Lordships of the Supreme Court reiterated thus:
"This Court, time without number, pointed out that interference with the concurrent findings of the Courts below by the High Court under Section 100 CPC must be avoided unless warranted by compelling reasons. In any case, the High Court is not expected to reappreciate the evidence just to replace the findings of the lower Courts."
10. It is clear from this catena of precedents of the Supreme Court that where the first appellate Court had considered the evidence on record by applying its mind independently and considering the reasoning of the trial Court and thereafter concurred with the findings of the trial Court, the same does not deserve to be interfered with. Interference would be justified if the finding reached by the lower appellate Court is vitiated by the non-consideration of the relevant evidence or the approach to decide the case is quite erroneous and the High Court can also interfere when there is perversity in finding of feet and the findings reached are not based on any evidence or they are the results of surmises and conjectures.
11. A perusal of the Judgment of the trial Court and also the first appellate Court in this case amply discloses that the concurrent findings reached by both the Courts below are based on the evidence on record and they are not the result of surmises or conjectures. There is also no reason to hold that the findings of fact of both the Courts below are perverse or based on no evidence.
12. The learned Counsel for the appellants raised the contention with regard to the maintainability of the suit in a Civil Court and also about the validity of the quit notice issued under Section 106 of TP Act. Hence, the two substantial questions of law that arise for consideration in this appeal are:
(i) Whether there is no valid quit notice issued under Section 106 of TP Act before filing of the suit?
(ii) Whether the plaintiff's suit for eviction is not maintainable in view of the Judgment of the Supreme Court in Motor General Traders v. State of Andhra Pradesh, AIR 1984 SC 121, dated 26-10-1983?
13. It may be stated here, as contended by the learned Counsel for the respondent-plaintiff, that both the above said pleas were not taken in the written statements filed on behalf of the defendants. As seen from the impugned Judgment of the lower appellate Court, for the first time the plea that suit notice, Ex.A2, is not a valid quit notice issued in compliance of Section 106 of TP Act was taken. In spite of the fact that no such plea was taken in the written statement, the lower appellate Court considered that aspect at length in paras 10 to 13 of its Judgment and held that Ex.A2 suit notice is valid and legal and it is in accordance with the provisions of Section 106 of TP. Act. The second plea that the Civil Court has no jurisdiction to entertain this suit was not even raised before the lower appellate Court.
14. Now I will take up the first question which relates to the validity of the quit notice, Ex.A2, issued under Section 106 of TP Act. Section 106 of TP Act reads as under:
"Section 106. Duration of certain leases in absence of written contract or local usage: In the absence of a contract or local law or usage to the contrary a lease of immovable property for agricultural or manufacturing purposes shall be deemed to be a lease from year to year terminable, on the part of the tenancy; and a lease of immovable property for any other purpose shall be deemed to be a lease from month to month, terminable, on the part of either lessor or lessee, by fifteen days' notice expiring with the end of a month of the tenancy.
Every notice under this Section must be in writing signed by or on behalf of the person giving it, and either be sent by post to the party who is intended to be bound by it or be tendered or delivered personally to such party, or to one of his family or servant, at his residence, or (if such tender or delivery is not practicable) affixed to a conspicuous part of the property.'' Under this Section, in the absence of a contract or local law or usage to the contrary, a lease of immovable property for any other purpose than agricultural and manufacturing purpose, is deemed to be a lease from month to month, terminable on the part of either lesser or lessee by 15 days notice expiring with the end of the month of the tenancy. Admittedly, in the instant case, the tenancy relates to a residential building and, therefore, the tenancy is a monthly tenancy and terminable by 15 days notice. The two requirements of the quit notice under Section 106 of TP Act with respect to a residential building are that the notice should give minimum 15 days time for the tenant to vacate the lease hold premises and that the said time should expire with the end of the tenancy month. Further, 15 days notice time prescribed under Section 106 of TP Act is the minimum period and there is no prohibition for giving more than 15 days notice time for vacating, but it should expire by the end of the tenancy month. In the instant case, Ex.A2 is the quit notice issued on behalf of the plaintiff directing the defendants to vacate the suit premises and deliver vacant possession of the same by 1-3-1982. The quit notice, Ex.A2, dated 20-1-1982 was issued to the defendants and the defendants received the same on 21-1-1982. Exs.A3 and A5 are the postal acknowledgments of the defendants. Under the said notice, the tenancy was terminated and the defendants were called upon to vacate the suit premises by 1-3-1982. The monthly tenancy expires by the last day of February, 1982 and, therefore, the tenants were directed to deliver vacant possession of the same to the plaintiff on 1-3-1982. Under Ex.A2 the plaintiff has given more than 15 days time to the first defendant to vacate the schedule premises and he was also directed to deliver vacant possession of the same by the end of tenancy month. As such there is no reason to hold that Ex.A2, quit notice, is not in conformity with the provisions of Section 106 of TP Act. Hence, the finding of the first appellate Court that Ex.A2 quit notice is valid and legal is confirmed.
15. As regards the second question, admittedly the suit for eviction has been filed in the Civil Court as the suit building has been constructed subsequent to 1957 and the provisions of Section 32(b) of the Rent Control Act is a bar for entertaining the petition for eviction under the said Act. The learned Counsel for the appellant submits that the Supreme Court had struck down Section 32(b) of the Rent Control Act as unconstitutional and as such the plaintiff ought to have filed the suit for eviction under the Rent Control Act. The learned Counsel for the respondent, on the other hand, submits that on the date of filing of the suit the plaintiff had the benefit of Section 32(b) of the Rent Control Act and so he had rightly initiated the suit for eviction of the defendants in the Civil Court and that subsequent changes cannot take away such right of the plaintiff. It is not in dispute that the suit building was constructed in the year 1977 and the present suit for eviction was filed on 20-3-1982. Under Section 32(b) of the Rent Control Act, the buildings constructed on or after 26-8-1957 are exempted from the operation of the said Act. Since the suit building in this case was constructed in the year 1977, it was not governed by the Rent Control Act by the time the suit was filed. Hence, the suit filed in the Civil Court is maintainable.
16. The Supreme Court by its Judgment dated 26-10-1983 in Motor General Traders v. State of A.P., AIR 1984 SC 121, had struck down Section 32(b) of the Rent Control Act as unconstitutional. Based on that Judgment of the Supreme Court, the learned Counsel for the appellant submits that the appeal is a continuation of the suit and therefore it has to be held that the plaintiff's suit is not maintainable. The effect of Section 32(b) of the Rent Control Act consequent upon striking down by the Supreme Court in Motor General Traders v. State of A.P., (supra) has come up before this Court for consideration on number of occasions. In S. A. Hakim Saheb v. P. V.K. Setty, 1989 (2) ALT 28, the learned single Judge of this Court Laxman Rao, J., following the decision of the Supreme Court in Atma Ram v. Ishwar Singh, , held thus:
"In the instant case, the suit was filed at the time when clause (b) of Section 32 was in force. On the date of filing of the suit, the Civil Court had the jurisdiction to entertain and dispose of the suit. It means that the right of the party to file a suit for eviction of the tenant has crystallised on the date of the institution of the suit. Such right, in my view, is not affected by the quashing of clause (b) of Section 32 subsequent to the filing of the suit. Apart from that, once a right to file a suit which is vested in a party has been exercised, that party cannot be divested of that right except by express statutory provision or by necessary implication. No provision is brought to my notice which can be said to have taken away the right of the respondent to continue the suit. Therefore, I am unable to accept the contention of the learned Counsel for the appellant that the Civil Court had no jurisdiction to try the suit after clause (b) of Section 32 was quashed as unconstitutional."
17. While summarising the principle laid down in various cases of the Supreme Court as well as this Court another single Judge of this Court N.D. Patnaik, J., in Morisetti Mohan Rao v. Tata Subbaiah and others, 1992 (1) An.WR 183, at para 15 held as under:
"The decisions which are referred to above uniformly laid down the principle that when once the proceedings are instituted under the law which was in force, the rights of the parties are crystallised according to the law in force and the suit should be disposed of in accordance with the law which was in force as on the date of filing of the suit. Though Section 32(b) of the Rent Control Act was subsequently struck down as unconstitutional by the Supreme Court, since the plaintiff had already filed the suit in the year 1977, when exemption granted under Section 32(b) was in operation, the rights of the parties have been crystallised as on the date of filing of the suit."
In Vallabhamni Sarala Devi v. Rachapudi Subba Rao, , another learned single Judge of this Court Iyyapu Panduranga Rao, J., also took the same view. Again in Smt. Yadamma and another v. K. Mallesh, , my learned Brother Motilal B. Naik, J., was inclined to sail with the view expressed by N.D. Patnaik, J., in Morisetti Mohan Rao v. Tata Subbaiah and others (supra) that when as on the date of filing of the suit a particular right is available to a party, it would be continued to be available till the disposal of the suit though such benefit is, later on, taken away. I am also inclined to accept the same view as held in the decision cited above.
18. In the instant case, as earlier stated, the suit has been filed on 20-3-1982 and by then the plaintiff could not file the suit for eviction under the Rent Control Act in view of the provisions of Section 32(b) of the said Act. The provisions of Section 32(b) of the Rent Control Act have been struck down by the Supreme Court on 26-10-1983. The suit was decided on 8-9-1983. Hence, by the date Section 32(b) of the Rent Control Act was struck down by the Supreme Court, the suit was already decreed. Further, by the date of filing of the suit, it was the Civil Court that had the jurisdiction to entertain and dispose of the suit. Hence, it cannot be said that the Civil Court had no jurisdiction for entertaining the suit. Hence, I am not inclined to accept the contention raised by the learned Counsel for the appellant. Accordingly, the appeal is liable to be dismissed.
19. In the result, this second appeal is dismissed with costs and the Judgments and decrees of both the Courts below are confirmed.