Andhra HC (Pre-Telangana)
A.V. Prasad And Anr. vs G.K. Ramaiah on 7 December, 1994
Equivalent citations: 1995(1)ALT90
ORDER S.V. Maruthi, J.
1. The questions that arise for consideration in this Second Appeal are -(i) whether Section 110 of the Transfer of Property Act (hereinafter referred to as 'the Act') applies to a tenancy holding over and (ii) whether the civil Court has jurisdiction to try the suit.
2. The facts, in brief, are as follows:- The plaint schedule property consists of two mulgies and vacant space of 90 square yards. The suit was filed for eviction of the tenant on the ground that there was an oral tenancy between the plaintiffs and the defendant. Originally the lease was by way of written instrument executed under Ex.A-11 dated 1-11-1973 in respect of 90 square yards and the last date of the lease period was specified as 31-10-1974. Similarly another lease deed was executed under Ex.A-12 dated 1-11-1973 for the two mulgies and the last date of the lease period was specified as 30-9-1974. The appellants issued a notice terminating the tenancy with effect from 30-9-1979 and filed the suit. The trial Court dismissed the suit on 27-2-1985 on the ground that it has no jurisdiction. On appeal, the Additional Chief Judge-cum-II Additional Metropolitan Sessions Judge, Hyderabad, remanded the same for fresh disposal in accordance with law, as the trial Court tried the suit only on a preliminary issue of jurisdiction. After remand the VI Assistant Judge decree the suit holding that the notice was proper and valid and that the civil Court has jurisdiction. On appeal, the Chief Judge, City Civil Court, Hyderabad, set aside the decree on the ground that the notice was invalid and the civil Court has jurisdiction, against which the present Second Appeal was filed.
3. The learned Chief Judge, City Civil Court held that the Civil Court had jurisdiction to try the suit even in respect of the suit mulgies and that Section 110 of the Act is applicable to the tenancy holding over and, therefore, the notice is invalid. In support of his view, he relief on a judgment of the Supreme Court in Dattonpant v. Vithal Rao, . The learned Judge distinguished the decision of Mr. Justice Chowdary, reported in M/s. P.S.P. Seshagiri Rao and Co. v. Kalabai Rathi, . The learned Judge observed:-
"It is thus very clear that the case before the Supreme Court was holding over the property and continuing in possession under Section 116 of the Act only. Those facts are as in the facts of the present case also. Dealing with those facts the Supreme Court held that Section 110 of the Act applies to such tenancies and the date of commencement of the tenancy has to be excluded in computing the time limited by the lease. Therefore, the first day of the month has to be excluded and the tenancy must be terminated only on the 1st of the month. In this case the plaintiffs have given the notice terminating the tenancy by 30-9-1979 but the notice must terminate the tenancy only on 1-10-1979. In this view of the matter I am of the opinion that the notice to quit issued by the plaintiffs under Ex. A-8 is invalid as it is not in accordance with Section 106 read with Section ll0 of the Transfer of Property Act. The learned Counsel for the plaintiffs however argued that the decision of the Andhra Pradesh High Court has to be followed. But when there is a direct binding pronouncement of the apex Court it is to be followed by this Court by virtue of Article 141 of the Constitution of India notwithstanding the decision of the High Court in Seshagiri Rao v. Kalabai Rathi . I am therefore of the opinion that the notice under Ex. A-8 issued by the plaintiffs terminating the tenancy is not valid in law."
4. It is the above findings of the learned Judge that are now under appeal.
5. The main argument of the learned Counsel for the appellants is that Section 110 of the Act is not applicable to a tenancy holding over and the judgment of the Supreme Court in Dattonpant v. Vithal Rao (1 supra) did not extend Section 110 of the Act to a tenancy holding over and that the same was pointed out by a learned single Judge in M/s. P.S.P. Seshagiri Rao & Co. v. Kalabai Rathi (2 supra). The learned Counsel also pointed out that if a learned single judge of this Court refuses to agree with the interpretation of a learned single Judge, the course open to him is to refer it to a Division Bench. Therefore the Chief judge, City Civil Court is bound by the interpretation placed by the single judge Sri Chowdary, J., even if it is a mis-interpretation of the Supreme Court as he has no power to refer it to a Division Bench. He also submits that the Full Bench of this Court in S. Harinath v. State of A.P., (F.B.) dealing with binding nature of (Sambamurthy's case AIR 1987 SC 663) and Sampath Kumar's case (AIR 1987 SC 386) held that those decisions on the alternative mechanism are not binding as they run counter to Kesavananda's case , in Re-Privileges case and Indira Gandhi's case . Therefore, the same principle will apply to a case where the High Court interprets or misinterprets the Supreme Court's decision and the Chief Judge, City Civil Court has no alternative except to follow the judgment in P.S.P. Seshagiri Rao's case (2 supra).
6. The next contention of the counsel is that the quit notice in Ex.A-8 dated 12-9-1979 was issued determining the tenancy with effect from 30-9-1979; that the tenant issued a reply notice Ex.A-9 dated 22-9-1979 contesting the validity of the quit notice. However, no specific plea with regard to the validity of the quit notice was taken either in the written statement or in any of the three additional written statements. Even in the absence of pleadings an issue was framed with regard to the validity of the quit notice, the suit was dismissed on 27-2-1985 holding that the civil Court has no jurisdiction. The plaintiff filed A.S. No.129 of 1987 on the file of the Court of the Additional Chief Judge, Hyderabad. The appeal was allowed and remanded to the trial Court on 27-9-1989 by the order of remand all questions were kept open to be decided by the trial Court. However, the defendant did not raise the question of validity of quit notice during the course of hearing of A.S. No.129 of 1987. The arguments with regard to the validity of quit notice were advanced for the first time after remand. However, though the appellants contended before the Chief Judge, that the respondent raised the question of validity of quit notice, the learned Judge has not considered. Counsel also submits that in the reply notice Ex.A-9 the validity of quit notice is contested which shows that the defendant Was aware of the alleged illegality in the quit notice. The respondent though filed three additional written statements, never raised the plea of invalidity of quit notice. The plea was also not raised in the trial Court before remand. The suit was filed in 1979 and the plea with regard to the validity of the quit notice was taken for the first time after 1989 and that in view of the judgment in Gauri Shankar v. Hindustan Trust Ltd., ., and H.C. Gupta and Anr v. K. V. Rama Rao, 1983 (1) ALT 62 (NRC) it is not open to the respondent to raise the issue relating to the validity of quit notice.
7. The next contention of the learned Counsel for the appellants is that the defendant as D.W.1 in his evidence categorically admitted that "my tenancy is from month to month as per English calendar". I received Ex.A-8 dt.12-9-1979 and replied to it vide Ex.A-9".
8. In Gnanaprakasam v. VAZ, AIR 1931 Madras 352 it was held that even though the tenancy is from second to first when the parties understood that the calendar month to be the tenancy month it is only the calendar month that governs the case, if so the notice is valid.
9. Counsel appearing for the respondent submits that the suit is liable to be dismissed as a single suit was filed on a common cause of action in respect of mulgies; and vacant space; that the suit is not ma maintainable in respect of mulgies as the only Court that has jurisdiction is the Rent Control Court and that, . therefore, there is misjoinder of causes of action. Counsel submits that the decree cannot be split at the stage of Second Appeal; that in view of the judgment in Metal Press Works, Calcutta v. G.M. Cotton Press Co., , the question of waiver does not arise; that Section 110 of the Act is applicable as the lease is an oral lease and under Section 111(H) tenancy holding over is a statutory , tenancy and, therefore, fell within the scope of oral lease and there is no prohibition of applicability of Section 110 to the oral leases and that if Section. 110 is applicable to oral leases then the suit notice is invalid. As regards the jurisdiction of the Court, counsel submits that the suit was filed on 21-12-1979 and under G.O.Ms. No.636/82 premises is exempt from the provisions of the , Rent Control Act for a period of ten years. Since ten years has expired prior to the issuance of the G..O., the Rent Control Court alone has jurisdiction in respect of mulgies and the suit is not maintainable in the Civil Court. The Counsel also submits that the Chief Judge is not bound by the judgment of the single Judge, which according to him is not correct interpretation of judgment of the Supreme , Court and it is for a third judge who has to refer it to the Bench.
10. There is no dispute about the facts, namely, that there was a written lease under Ex.A-11 dated 1-11-1973 in respect of 90 square yards and the period specified in the said lease deed was one year and the last date of the lease period is specified as 31-10-1974 and under Ex.A-12 dated 1-11-1973 in respect of two ; mulgies and the last date of the lease period was specified as 30-9-1974. After the expiry of the original leases under Ex.A-11 and A-12 the respondent continued as tenant holding over. The plaintiffs issued a quit notice under Ex.A-8 dated 12-9-1979 terminating the tenancy with effect from 30-9-1979. Before considering whether Section 110 of the Act applies to the tenancy holding over, it is necessary to refer to the language used in Section 110 of the Act and also Section 116 of the Act.
11. Section 110 of the Act reads as follows:-
"Where the time limited by a lease of immoveable property is expressed as commencing from a particular day, in computing that time such day shall be excluded. Where no day of commencement is named,, the time so limited begins from the making of the lease.
Where the time so limited is a year or a number of years, in the absence of an express agreement to the contrary, the lease shall last during the whole anniversary of the day from which such time commences.
Where the time so limited is expressed to be terminable before its expiration, and the lease omits to mention at whose option it is so terminable, the lessee, and not the lessor, shall have such option."
12. Section 116 of the Act reads as follows:-
"If a lessee or under-lessee of property remains in possession thereof after the determination of the lease granted to the lessee, and the lessor or his legal representative accepets rent from the lessee or under-lessees, or otherwise assents to his continuing in possession, the lease is, in the absence of an agreement to the contrary, renewed from year to year, or from month to month, according to the purpose for which the property is leased, as specified in Section 106."
13. A reading of Section 110 makes it clear that the ingredients that are necessary for the purpose of applicability of Section 110 is that the period of lease should be limited. In other words, it applies to leases where the period is limited and where the day of commencement of lease is mentioned and if the date of commencement of lease is not named then the time so limited begins from the making of the lease. Under Section 116 of the Act in case of tenancy holding over the lease shall be from month to month in cases where the leases are not for manufacturing and agriculture purposes. Admittedly in the present case, the lease is neither for agriculture purpose nor for manufacturing purpose and therefore after the expiry of the original period of lease the tenancy should be treated as from month to month. As pointed out earlier in order to apply Section 110 of the Act the period of lease should be limited under the lease deed and secondly the lease should expressly provide for the date of commencement of the lease and if the day of the commencement of lease is not named then the time so limited begins from the making of lease. In the case of tenancy holding over neither the period is fixed nor day of commencement of lease is expressly provided for nor the commencement of the lease is named. Therefore, a reading of Section 110 with Section. 116 of the Act makes it clear that Section 110 of the Act is not applicable to the tenancy holding over but applies to periodical lease with specific date of the commencement of the lease.
14. In this context I may refer to some of the judgments relied on by the counsel for the appellants.
15. In Chand Mohamad v. Murtazakhan, AIR (37) 1950 Mysore 233 it was held:-
"A periodical tenancy such as from month to month is not governed by Section 110, T.P. Act, and hence the first day of the month need not be omitted from the period of notice to quit. It is a tenancy to which Section.106 applies and the notice to quit must expire with the end of a month of the tenancy."
16. In Ramdhari v. Jagendra Kumar, AIR 1959 Assam 174 it was held:-
"Section 110 applies only to leases for a term. Therefore, where a monthly tenancy commenced on the 1st day of a month, it could be properly and validly determined by service of a notice expiring on the last day of the subsequent month."
17. In Durga Prashad v. Bhagwan Devi, the same view was expressed holding that Section 110 of the Act is not applicable to a monthly tenancy and that, therefore, the question of exclusion of any date under Section 110 does not arise.
18. In M/s. P.S.P. Seshagiri Rao & Co. v. Kalabai Rathi (2 supra) a learned single Judge of this Court distinguishing the decisions of the Privy Council in Benoy Krishna v. Salsiccioni, AIR 1932 P.C.279 and Dattonpant v. Vithal Rao (I supra) held that Section. 110 is not applicable to monthly tenancies and tenancy holding over.
19. In view of the controversy raised during the arguments that the Chief Judge, City Civil Court should have followed the judgment in P.S.P. Seshagiri Rao (2 supra) it is necessary to deal with the judgment of the Supreme Court in Dattonpant v. Vithal Rao (1 supra) in detail.
20. In Dattonpant v. Vithal Rao (1 supra) the appellant agreed to pay Rs.600/- as rent for one year from 9-4-1945. The agreement was in writing dated 15-6-1945. The tenancy commenced from 9-4-1945. The respondent purchased the property in August, 1968 and gave a notice on 19-11-1968 which was served on the appellant on 21-11-1968 terminating his tenancy and asking him to deliver possession by the 8th December, 1968. The question that arose for consideration was whether the suit notice was valid and whether Section 110 of the Act was applicable to the suit notice. It was observed that under Ex.P-12 the appellant agreed to pay Rs.600/- as rent for one year from 9-4-1945 therefore, the tenancy commenced from that date, namely, 9-4-1945. That being so under Section 110 of the Act in computing the period of one year the date of commencement i.e., 9th April 1945 had to be excluded. The one year tenancy thus ended on 9th April, 1946. In the agreement it was categorically mentioned:-
"I shall make use and enjoyment of the said shops as a tenant for one year and deliver your shops to you without objection on 9-4-1946."
Thereafter the tenant did not deliver possession. However, he continued in possession of the property, therefore, he became a tenant holding over and the tenancy was from month to month commencing from 10-4-1946 and ending on the 9th of the following month. It was held that the finding of the District Judge that one year's tenancy ended on 8th April 1946 when the tenant agreed to deliver possession on 9th April and, hence, the monthly tenancy started from 9th of the month ending on the 8th day of the following month is erroneous in law. Therefore, there was no valid legal termination of the contractual tenancy. The learned Judges also distinguished the judgment of the Privy Council in Binoy Krishna v. Salsiccioni, AIR 1932 P.C. 279. From the above, it is clear that nowhere it was held that Section 110 is applicable to the tenancy holding over from month to month. On the facts of that case, the notice was issued terminating the tenancy by the 8th of December, 1968, whereas under the agreement, namely, Ex.P-12 one year's tenancy ended on the 9th April, 1946 and the tenancy holding over commenced from 10th April 1946 and ending on the 9th day of the following month. Therefore, obviously, the notice issued terminating the tenancy by the 8th December, one day before the ending of the tenancy (month), is invalid. On the other hand, there is a categorical observation that the tenancy month commenced from 10th day of the month and ended on the 9th day of the following month. Therefore, the judgment is not an authority for the proposition that Section 110 of the Act is applicable to tenancy holding over.
21. In Benoy Krishna Das v. Salsiccioni (11 supra) the respondents became tenants of the appellants under a lease of certain premises dated 29-6-1921 expressed to be "from 1st June 1921 for the term of four years thence next ensuing". The lease period in due course in the year 1925 but the respondents continued as tenants of the premises and under the terms of Section 106, which have been read their tenancy was terminable thereafter by 15 days' notice expiring with the end of a month of the tenancy. On 1st February 1928 the respondents gave notice to terminate and the notice read as follows:-
"We hereby give you one month's clear notice to take effect from today. By this you must understand that we shall hold possession of the above premises upto the last day of this month and would shift from here just on the 1st proximo. Please take note of the same."
22. It was held that the lease ended at midnight on 1st June 1925 and that any notice to determine thereafter given must be a notice to quit expiring with the month ending at midnight on the first day of any month. The notice was given on 1st February, 1928, clearly a notice in regard to 1st March, 1928 and not in regard to 29th February, 1928. It, therefore, is a notice which, in the language of Section 106, expired with the end of a month of the tenancy, because the month of the tenancy expired at midnight on 1st March, 1928. From the above it is clear that Section 110 was not made applicable to the tenancy holding over but to the original tenancy between 1st June 1921 and 1st June 1925 and the notice issued terminating the tenancy from the first March, 1928 was held to be valid. Therefore, neither the Supreme Court in Dattonpant v. Vithal Rao (1 supra) nor the Privy Council judgment laid down that Section 110 is applicable to the tenancy holding over, which is a tenancy from month to month on the facts of this case.
23. The Counsel for the respondent argued that the tenancy being a tenancy holding over, there is no written agreement and, therefore, it is an oral lease and as long as it is an oral lease Section 110 of the Act is applicable. That question does not arise for consideration in view of the express language used in Sections 110 and 106 of the Act. It is not disputed that the tenancy is a tenancy holding over and on the facts of this case it is from month to month. The express language used in Section 110 of the Act the lease should be limited to a period, namely, it should be a periodic lease and it should be specifically mentioned that it should be commenced from a particular day and if the commencement of a particular day is not expressly named then the period shall commence from the date of making of the lease- In a tenancy holding over, neither the period is mentioned nor the day on which the lease is commenced is expressly provided. Therefore, Section 110 is not applicable to a tenancy holding over / tenancy from month to month.
24. If Section 110 is not applicable to a tenancy holding over, then on the facts of the present case it is not disputed that it is a tenancy holding over and, therefore, Section 110 is not applicable and consequently terminating the tenancy by 30th September, 1979 is valid as the original tenancy under Ex.A-11 and A-12 is on 31-10-1974 and 30-9-1974.
25. In Gnanaprakasam v. Vaz (6 supra) the expression 'english calendar' was interpreted by the Madras High Court. It is necessary to refer to some of the relevant Clauses of the lease deed. One of the Clause of the lease deed reads as follows:-
"The tenancy may be determined by either party giving to the other of them subsequent to 1st January 1925, fifteen days' notice in writing expiring within the calendar month."
Since the lease deed was not registered the lease was considered to be a lease from month to month. The lease was terminated by a quit notice dated 15-9-1930 in the following terms:-
"Take notice that you are hereby called upon to vacate and deliver possession of our bungalow.....on the forenoon of 1st October, 1930."
It was contended that on the terminating of the period fixed, a new tenancy commenced on 2nd January, 1925; that the month of the tenancy was therefore from 2nd January, 1925 to 1st February, 1925; that this must be supposed to go on indefinitely and that the period that matters therefore was from the 2nd of a month to the 1st of the succeeding month. It was also contended that the expression "calendar month" in the agreement means the notice to quit should have been issued on the expiry of the 1st October but since notice was short by twelve hours it was invalid. The said contention was negatived. It was held:-
"I am not prepared to accept this contention. A "calendar month" means according to the Oxford Dictionary one of the twelve months into which the year is divided; according to the calendar also the space of time from any day of any such month to the corresponding day of the next as opposed to a lunar month of four weeks. There can be no doubt that the parties understood the expression in the former sense. In this case the original lease came to an end on 1st January 1925. Thereafter the parties dealt with each other on the footing that the rent was to be paid and received for an English calendar month that is to say for January or February and so on."
It was further observed:
"Where a tenancy expires on a certain date but the notice to quit is given terminating the tenancy not on the expiry of that day but on the forenoon of the next day the notice to quit, strictly speaking is bad, but practically it is a good notice because it is not required that a notice should be worded with the accuracy of a plea. Where it is sufficiently clear though not drawn with strict accuracy it should be given a rational interpretation."
It was also held:
"The question is what is the month of the tenancy in the present case? It is admitted that the rent receipts which the plaintiff passed and the defendant accepted were uniformly for English calendar month of the tenancy such as January, February. If that is the month of the tenancy, the notice to quit on the reasoning I have adopted is good."
26. From the above what follows is that if parties understood that the tenancy is in the sense of a calendar month then the notice to terminate ends with calendar month is a valid notice. On the facts of this case, D.W.1 in his evidence categorically admitted that the tenancy is from month to month as per English calendar. Therefore this notice issued terminating the tenancy with effect from 30-9-1979 is valid as it ends in the English calendar month as the relevant clause in the notice reads "my clients therefore determined your tenancy with effect from 30-9-1979".
27. The next question to be considered is whether there is a waiver of the plea regarding he invalidity of the notice. I have already referred to the fact that the issue relating to the invalidity of the quit notice was taken only after remand and that too for the first time without any pleading although there was an issue in the absence of pleading and that there was no evidence adduced.
28. In Gauri Shankar v. Hindustan Trust Ltd. (4 supra), it was held that where the plea of absence of valid notice terminating contractual tenancy was not taken in the original written statement an amendment to include the plea after eight years should not be allowed on account of gross delay and laches.
29. The Counsel for the respondent relied on a judgment in Metal Press Works, Calcutta v. G.M. Cotton Press Co. (7 supra), wherein it was held:-
"The defendant cannot be deemed to have waived the right to question the validity of the quit notice by failure to raise the same in the original written statement but raising it for the first time by way of amendment of the written statement at the time of argument. The validity or legality of a quit notice is a question of law and, therefore, it can be raised even at a late stage if no further determination or investigation of facts is required, and no prejudice is caused to the plaintiff by such delay."
The judgment of the Supreme Court in Gauri Shankar v. Hindustan Trust (4 supra) was distinguished by the learned Judge on the ground that there was inordinate delay of 8 years on the part of the defendant-lessee in raising the plea of waiver proceedings between the parties protracted for several years and whereas in the case on hand, namely, Metal Press Works, Calcutta v. G.M. Cotton Press Co. (7 supra), at the stage of arguments, amendment of written statement was sought for. On the facts of the present case, the suit was filed in 1979 and the suit was originally dismissed on 27-2-1985 and an appeal was filed to the Additional Chief judge, City Civil Court. The appeal was remanded to the trial Court on 27-9-1989 and after remand the validity of quit notice was challenged exactly after 10 years of the filing of the suit. Therefore, the principles laid down by the Supreme Court in Gauri Shankar v. Hindustan Trust Ltd. (4 supra) is applicable to the facts of the present case. Whereas the judgment in Metal Press Works, Calcutta v. CM. Cotton Press Co. (7 supra), is distinguishable as there was no delay in seeking amendment of the written statement. The suit itself was filed in 1967 and the original written statement was filed on November 15,1967 and a petition seeking amendment of the written statement was filed on July 29, 1969 i.e., within two years that too at the time when the suit was posted for arguments. Therefore, the judgment in Metal Press Works, Calcutta v. G.M. Cotton Press Co. (7 supra) is distinguishable from the facts of this case. Therefore, I am of the view that the defendant has waived the plea that the notice to quit was invalid and, therefore, he is precluded from raising the said plea.
30. The next question to be considered is whether the civil Court has jurisdiction? Admittedly, the leases relate to vacant site of 90 square yards and two mulgies and the lease deeds were Ex. A-11 and Ex.A-12 dated 1-11-1973 and 1-11-1973. The trial Court found that the Civil Court has no jurisdiction with regard to the mulgies but not with regard to the vacant site. It was held that the civil Court has undoubtedly has jurisdiction with regard to the vacant site. The contention of the respondent before the appellate Court was that the civil Court has no jurisdiction to entertain the suit in respect of the suit mulgies though the suit is maintainable in respect of open land. The suit was instituted before the Supreme Court declared Section 32(b) of the Rent Control Act to be unconstitutional and before the issuance of G.O.Ms. No.636 dated 2942-1983. The suit was instituted prior to the declaration by the Supreme Court of Section 32(b) of A.P. Buildings (Lease, Rent and Eviction Control) Act as invalid.
31. In K. Bennayya v. P. Saraszvathi, relying on the Supreme Court Judgment in M/s. East India Corporation Limited v. Shree Meenakshi Mills Limited, , I took the view that a distinction is to be drawn between the cases where proceedings were intiated during the operation of a valid provision of law and cases where proceedings were initiated under a provision which was subsequently declared as unconstitutional and violative of Article 14 of the Constitution of India; that in the case where proceedings initiated under a provision, which was subsequently declared and uncounstinational and violative of Article 14 of the Constitution, the provision is deemed to be non est from its inception and consequently the proceedings initiated and the decree passed by the authority under an unconstitutional provision shall be declared as a nullity, unless the proceedings have become final and decrees are executed; that from the facts of the instant case, it is clear that proceedings have not yet become final and the decree had not yet been executed and that, therefore, the decree passed by the Civil Court for execution insofar as mulgies are concerned as a nullity.
32. While holding as above, I have distinguished the judgment in S.A. Hakim Saheb v. P.V.K. Setty, 1989 (2) ALT 28 and M. Mohan Rao v. T. Subbaiah , on the ground that by the time the judgment in S.A. Hakim Saheb v. P. V.K. Seety , 1989 (2) ALT 28 was delivered the judgment of the Supreme Court in M/s. East India Corporation Limited v. Shree Meenakshi Mills Limited was not delivered and in the case of M. Mohan Rao v. T. Subbaiah, though the judgment was delivered after the judgment of the Surpeme Court in M/s. East India Corporation Limited v. Shree Meenakshi Mills Limited (13 supra), the said judgment was not brought to the notice of the learned Judge. Admittedly in the present case the proceedings were initiated in the civil Court in respect of the suit mulgies when Section 32(b) of the Rent Control Act was in force, which was subsequently declared as unconstitutional and violative of Article 14 of the Constitution of India, in view of which the civil Court has no jurisdiction insofar as the mulgies are concerned. As far as vacant site is concerned, there cannot be any dispute that the civil Court has jurisdiction.
33. The learned Counsel for the respondent raised an objection that there were two separate leases, one for vacant site and another for mulgies, therefore, there is misjoinder of causes of action and, therefore, a single suit is liable to be dismissed as not maintainable at its inception. Admittedly this point was not raised at the initial stages and, therefore, he cannot be permitted to raise the same at the stage of Second Appeal. The plea of misjoinder of causes of action having not been raised at the earliest point of time, the respondent is precluded from raising the plea at the stage of Second Appeal.
34. The next contention to be considered is whether the Chief Judge, City Civil Court, Hyderabad, is right in not following the judgment of the learned single Judge in M/s. P.S.P. Seshagiri Rao & Co. v. Kalabai Rathi (2 supra) and relying on the judgment of the Supreme Court. It is not necessary in this case to decide whether the learned Judge ought to have followed the Judgment of the learned single Judge in the case referred to above, in the light of the view which I have taken. In view of the above, it follows that the Second Appeal is to be allowed and the suit shall be decreed in respect of vacant site of 90 square yards and suit shall be dismissed in respect of two mulgies.
35. The Second Appeal is accordingly allowed in part with costs.
36. "Counsel for the respondent submitted that there are permanent structures in the vacant site in respect of which the suit for eviction was decreed and sought time for vacating the premises. Four months' time is granted for handing over the vacant possession of 90 square yards".