Andhra Pradesh High Court
SA/19/2026 of Sab Auto, Vs Franciscan Missionary Brother, on 29 January 2026
HIGH COURT OF ANDHRA PRADESH FRIDAY, TWO THOUSAND AND TWENTY SIX THE HONOURABLE SRI JUSTICE CHEEKATI MANAVENDRANATH ROY SECOND APPEAL NO: Between: 1. SAB AUTO, REPRESENTED BY ITS PROPRIETOR, SRI TIRUMALASETTY SURESH KUMAR, S/O SATYANARAYANA, HINDU, AGED ABOUT 44 YEARS, GROUND FLOOR, RIO 45 JOSEPH
APHC010442872025
IN TH
FRIDAY,
TWO
THE HONOURABLE SR
SE
Between:
1. SAB
AUTO,
RE
TIRUMALASETTY S
AGED ABOUT 44
JOSEPH ITC, GUNA
1. FRANCISCAN MISS
Bro. P.T. Joseph, S
1-45, Gunadala, Vija
Appeal under sectio
the impugned judgment
of 2017 by the District
decree dated 13.10.2016
Civil Judge (Junior Divis
dated 01-01-2016 is inva
the Transfer of Propert
proceedings are void ab
the original suit (O.SNo.1
IA NO: 1 OF 2026
Petition under Secti
in the affidavit filed in sup
E HIGH COURT OF ANDHRA PRAD
AT AMARAVATI
(Special Original Jurisdiction)
THE THIRTIETH DAY OF JANUARY
O THOUSAND AND TWENTY SIX
PRESENT
RI JUSTICE CHEEKATI MANAVEND
ECOND APPEAL NO: 19/2026
EPRESENTED
BY
ITS
PROPR
SURESH KUMAR, S/O SATYANARA
4 YEARS, GROUND FLOOR, RIO
ADALA, ELURU ROAD, VIJAYAWAD
AND
SIONARY BROTHER, Represented b
S/o Thomus, Christian, aged about 50
ayawada.
...R
on ___________ against orderspleas
and decree dated 09.05.2025 passed
Judge, Vijayawada and Set aside th
6 passed in O.S. No. 143 of 20.16
sion), Vijayawada and Declare that
alid and void ab initio for violation of S
ty Act, 1882 and Declare that the
initio for want of valid cause of acti
43 of 2016) with costs throughout an
on 151 CPC praying that in the circum
pport of the petition, the High Court ma DESH
Y
DRANATH ROY
RIETOR,
SRI
AYANA, HINDU,
O 45-1-45, ST.
DA.
...APPELLANT
by its Superior,.
years, R/o 45-
RESPONDENT
sed to Set aside
d in A.S. No. 117
e judgment and
by the Principal
the quit notice
Section 106(1) of
entire eviction
ion and Dismiss
nd Pass
mstances stated
ay be pleased to
CMR,J
S.A.No.19 of 2026
condone the delay of 113 days in re-presenting the Second Appeal filed against the Judgment and Decree dated 09.05.2025 in A.S. No. 117 of 2017
on the file of the V Additional Civil Judge, (Senior Division) Vijayawada, and pass IA NO: 2 OF 2026
Petition under Section 151 CPC praying that in the circumstances stated in the affidavit filed in support of the petition, the High Court may be pleased to Stay the operation and Execution of the impugned judgment and decree dated 09.05.2025 passed in A.S. No.117 of 2017 by the learned V Additional Civil Judge, (Senior Division) Vijayawada, and pass Counsel for the Appellant:
1.YEDIDA AKHIL PAVAN
Counsel for the Respondent:
1.KRISHNA RAO PARITALA
CMR,J
S.A.No.19 of 2026
The Court made the following:
Citations and Judicial Treatment
Cited by
0
Decisions in the index citing it
Cites
0
Decisions referred to
In this index
0
Of the decisions it cites
Overruled / Questioned
0
No negative treatment found
Loading the citing and cited decisions…
This judgment in the centre: on the left the decisions it cites, on the right the decisions citing it. Colour is the treatment; choose a decision to open it.
ORDER:
Heard learned counsel for the appellant.
2. The appellant is the defendant in O.S.No.143 of 2016 on the file of the Principal Junior Civil Judge, Vijayawada. The suit was filed against him for eviction from the lease hold premises. Admittedly, he is a tenant in respect of the subject property. The suit was filed for eviction against him on the ground that he has committed default in payment of rents. The trial Court has decreed the suit and ordered for his eviction after recording a finding of fact that he has committed default in payment of rents. The defendant has challenged the said decree before the first appellate Court i.e., the V Additional Civil Judge (Senior Division), Vijayawada. The first appellate Court also dismissed the appeal confirming the judgment of the trial Court. Thus, the two fact finding Courts have recorded the concurrent findings that the defendant has committed default in payment of rents and thereby ordered for his eviction.
3. The appellant challenged the said two decrees in this second appeal on the ground that he is doing a manufacturing business in the lease hold premises and as such, as per Section 106(1) of the Transfer of Property Act, 1882 (for short, ‘the Act’), giving six months notice for eviction before filing the suit is mandatory. But, only 30 days notice was given contrary to the mandate of Section 106(1) of the Act and as such, the suit itself is not maintainable. This is the substantial question of law that was raised by the appellant in this second appeal. But, as can be seen from the pleadings from his written statement, he did not take any specific plea that he has been doing a manufacturing business in the lease hold premises and that six months notice, as contemplated under Section 106(1) of the Act was not given and that the suit is not maintainable on that ground. As no such plea was taken by him, no issue relating to it was also framed in the trial Court. Therefore, it is for the first time, the appellant has been raising the said plea in this second appeal
CMR,J S.A.No.19 of 2026
without taking any plea to that effect in his pleadings. As no such plea was taken by him in the pleadings, there was no occasion for both the trial Court and the first appellate Court also to give any finding on the said plea. So, in the absence of any plea taken to that affect, the appellant cannot raise the said plea for the first time in the second appeal.
4. Further, according to the submissions made by learned counsel for the appellant, the appellant has been doing auto repair business in the lease hold premises. So, it is not a manufacturing business to hold that Section 106(1) of the Act applies to the facts of the case. Therefore, there is no substantial question of law involved in this second appeal to admit the same for hearing. No legal flaw or infirmity is found in the impugned judgment of the trial Court and the first appellate Court to interfere with the said judgment and the decrees.
5. Therefore, the Second Appeal is dismissed at admission stage. However, three months time is given from today for eviction. If the defendant fails to evict the lease hold premises and deliver the vacant possession of the said property within three months from date of this order, the plaintiff is at liberty to initiate execution proceedings for recovery of possession of the property. There shall be no order as to costs.
As a sequel, Interlocutory Applications pending, if any, shall stand closed.
________________________________________ JUSTICE CHEEKATI MANAVENDRANATH ROY
Date: 30.01.2026 MDP