SA/1015/2009 of P. Suryamma alias Surya Kumari Vs M/s. Nageshwara Dharma Nilayam Trust, on 31 December 2009

ORAL JUDGMENT:

This Second Appeal is filed assailing the judgmentand decree dated 7.8.2009 passed by the learned I Addl.Chief Judge, City Civil Court, Secunderabad, in A.S. No. 163 of 2004whereby the learned Judge dismissed the appeal confirming the judgment and decree dated 21.06.2004passed by the learned I Junior Civil Judge, City CivilCourt, Secunderabad, in O.S. No. 1394 of 1999 grantingtwo months time to the tenants – appellants herein tohandover the vacant physical possession of the suit mulgito the plaintiff – first respondent herein.

The first respondent herein is the absolute owner ofthe mulgi bearing No.7-3-54, situated at Sajjan Lal Street,Hissam Gunj, Monda Market, Secunderabad, while thepetitioners herein are the tenant for the last 20 years.While so, the petitioners herein committed willful default inpayment of monthly rents from the month of October,1998. It is also the case of the first respondent that duringthe lifetime of the father of the petitioners, he sublet themulgi to the second respondent herein without consent ofthe landlord, which is contrary to the terms of theagreement. Thereafter, the plaintiff – first respondentherein issued notice dated 17.03.1999 under Sec. 106 ofthe Transfer of Property Act terminating the tenancy inrespect of the suit mulgi with effect from 30.04.1999.

The case of the defendants 3 and 4 - petitionersherein is that the first respondent – plaintiff used to collectthe rents once in four or five months as per theirconvenience and, as such, the allegation that theycommitted default muchless willful default in payment ofrents is unfounded. The allegation of subletting by their father is denied but stated that the second respondentherein has joined the petitioners in carrying on thebusiness. It is also submitted that since the suit schedulemulgi is governed by the provisions of A.P. Building(Lease, Rent and Eviction) Act, 1960, the trial court hadno jurisdiction to try the suit.

On behalf of the plaintiff, PWs.1 and 2 wereexamined and marked Exs. A-1 to A-11 while on behalf ofthe tenants - defendants, DWs 1 and 2 were examined asDWs.1 and 2 and exhibited Exs.B-1 to B-80 postalreceipts and Exs. B-81 to B-157 acknowledgments.

The trial court on extensive consideration ofevidence, both oral and documentary, decreed the suitdirecting the petitioners herein to vacate the suit mulgi andto deliver peaceful and vacant possession thereof to thefirst respondent herein within four months and alsogranted mesne profits at the rate of 15% which has to beincreased bi-annually from the date of suit till the date ofdelivery of possession.

Aggrieved thereby, the petitioners herein preferredappeal in A.S. No. 163 of 2004 and the learned I Addl.Chief Judge, City Civil Court, Hyderabad, dismissed theappeal confirming the judgment passed by the trial courtinsofar as it relates to eviction of the petitioners hereinfrom the suit mulgi granting one month time to handovervacant possession thereof. Insofar as the judgment of the trial court relating to the aspect of mesne profits, the lowerappellate court directed the first respondent herein to file aseparate application under Order 20 Rule 12 CPC forascertainment of the mesne profits.

Aggrieved by the said judgment and decree passedby the lower appellate court, the tenants – defendants 3and 4 are in further appeal before this court underSec.100 CPC.

Before adverting to the substantial questions of law,be it noted that the scope of this court under Sec. 100C.P.C. is quite narrow. Therefore, within the ambit of theappellate jurisdiction of this court under Sec. 100 CPC, letus examine whether any interference is warranted, moreparticularly in view of the concurrent findings recorded byboth the courts below.

As can be seen from judgment of the courts below,the relationship of the petitioners and the first respondentas tenants and landlord is established, by virtue of theoverwhelming evidence available on record and alsoadmissions made by the tenants. The lower appellatecourt has extensively considered as to the non-applicability of the Indian Trust Act and the consequentialjurisdiction of the civil court to try the suit. The lowerappellate court has al`so dealt with extensively in respectof Ex.A-5 to the effect that the first respondent hasterminated the tenancy with effect from 30.04.1999 giving clear 15 days notice. Neither the service of this notice norits validity is in dispute. Adverting to the aspect ofcommitting default in payment of rents, if the landlord hadfailed to receive the rents, as sought to be contendedbefore this court, nothing prevented the petitioners frommaking an attempt to credit the same to the account of thefirst respondent. Having gone through the entire materialavailable on record and the findings recorded by both thecourts below, I am of the considered view that both thecourts below have appreciated the evidence, both oraland documentary, in right perspective and the findingsarrived at by both the courts below, do not call for anyinterference. Consequently, I do not find any question oflaw muchless substantial question of law.

The second appeal fails and is accordinglydismissed. No order as to costs.

December 31, 2009MAS

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T. Meena Kumari, J.