THE HON'BLE SRI JUSTICE T. AMARNATH GOUD
SECOND APPEAL No.175 of 2021
JUDGMENT :
This Second Appeal is preferred by the appellant/defendant, aggrieved by the judgment and decree dated 13.03.2020 passed in A.S.No.7 of 2017 by the IX Additional Chief Judge, City Civil Court, Hyderabad confirming the judgment and decree dated 16.11.2016 passed in O.S.No.135 of 2013 by the I Senior Civil Judge, City Civil Court, Hyderabad.
2. For the sake of convenience, the appellant herein referred to as defendant and the respondents herein referred to as plaintiffs.
3. The respondents/plaintiffs filed O.S.No.135 of 2013 on the file of I Senior Civil Judge, City Civil Court, Hyderabad seeking eviction of the appellant/defendant from the suit schedule premises, to deliver vacant physical possession of the same, arrears of rent and also direct the defendant to pay Rs.36,000/- per month towards unauthorized occupation of the schedule premises from February, 2013.
4. It is the case of the plaintiffs that they are owners of H.No.15-8-377/13 to 15-8-377/17 (Old part portion A of MCH No.15-8-377) situated at Feelkhana, Hyderabad with a built up area of 4305 sq. ft. in second, third and fourth floors by virtue of registered sale deeds and that the defendant is one of the tenants in the 3rd floor in premises bearing No.15-8-377/TF/1, admeasuring 1615 sq. ft and that the rent is @ Rs.9,000/- per 2 month on oral agreement and that the defendant agreed to pay rents regularly and that if he failed to pay monthly rent for two consecutive months, the plaintiffs are at liberty to evict him without issuing any notice and that from time to time, the rent was enhanced to Rs.18,000/- per month and that the 1st defendant used to obtain rental receipts from the 1st plaintiff. The defendant became irregular in payment of rent since June, 2012, the plaintiffs issued notice dated 05.12.2012 to the defendant to vacate the schedule premises and to pay arrears of rent till November, 2012 amounting to Rs.1,08,000/-. The defendant after receiving said notice, without vacating the schedule premises or paying rents, issued reply notice dated 31.12.2012 agreeing to pay arrears of rent and denying vacating the schedule premises. The defendant is in arrears of rent of Rs.1,44,000/- from June, 2012 to January, 2013 and Rs.36,000/- per month towards future damages from February, 2013 as he is in illegal possession of schedule premises.
5. The defendant filed written statement admitting that the plaintiffs are owners of the schedule premises and that the tenancy between them is oral and that the monthly rent is @ Rs.18,000/-. Originally, the defendant is tenant of one Safdar Ali Khan, to whom he has paid Rs.5,00,000/- towards security deposit returnable upon determination of tenancy or at the time of handing over the vacant possession, whichever is earlier. The defendant's previous landlord attorned tenancy through letter dated 06.02.2009 and thereafter, he paid rent regularly to the plaintiffs till May, 2012 and thereafter, the plaintiffs failed to receive the rents from June, 3 2012 to November, 2012 even though, the defendant sent rent through money order and by way of cheques. The plaintiffs own and possess 52 shops in the said building complex and that the plaintiffs are having vacant mulgies nearly 20 and that the plaintiffs' claim that they require the suit mulgi for their personal use and occupation is false. The defendant is running another business in Giriraj Complex, Feelkhana and the suit mulgi is not required by him is not correct. The defendant is not having any other mulgi except the suit mulgi. The family of the defendant is depending upon the business conducted in the suit mulgi. The plaintiffs putting locks to the toilet and to the grill and the main entrance to the defendant shop only to harass him by one or the other and that no cause of action arose. Hence, prayed to dismiss the claim of the plaintiffs.
6. On considering the oral and documentary evidence, the I Senior Civil Judge, on behalf of the plaintiffs, examined the 1st plaintiff as PW1 and got marked Exs.A.1 to A6 and on behalf of the defendant, examined the defendant as DW1 and got marked Exs.B.1 to B.14. As per orders in I.A.No.322 of 2016, Sri Safdar Ali Khan was summoned and examined as CW1. The I Senior Civil Judge, framed the following issues:
1) Whether the plaintiffs are entitled to evict the defendant from the suit premises?
2) Whether plaintiffs are entitled to arrears of rent?
3) To what relief?4
7. After hearing both sides and on considering the entire material and evidence on record, the I Senior Civil Judge decreed the suit with costs directing the defendant to vacate and deliver the vacant and physical possession of the schedule mulgi to the plaintiffs within two months, failing which the plaintiffs are entitled to get the same through process of law and also mesne profits from the defendant for use and occupation of schedule mulgi from February, 2013 till delivery of physical possession at the rate to be quantified in separate enquiry upon application of the plaintiffs.
8. Aggrieved thereby, the appellant/defendant preferred A.S.No.7 of 2017 on the file of IX Additional Chief Judge, City Civil Court, Hyderabad and the said first appeal was dismissed confirming the judgment passed by the I Senior Civil Judge, City Civil Court, Hyderabad by granting one month time for the defendant to vacate the suit shop, failing which the plaintiffs are at liberty to proceed as per law that the suit schedule premises was not utilized for the purpose of business by the defendant and the schedule premises was kept idle and that as per the admission made by the defendant in his cross examination that he has been using the schedule premises as a godown.
9. The defendant/appellant holding that the judgment and decree passed by the Courts below are perverse and the Courts below failed to appreciate the evidence and material available on record and that in case the defendant not deposited any security deposit amount, the plaintiffs would not have been continued for 5 such a long time since the date of Ex.A.1-sale deed. The first appellate Court without recording any specific reasons and independent findings in its judgment erred in law in observing that the reasons assigned by the trial Court in decreeing the suit.
10. Heard learned counsel for the appellant and learned counsel for the respondents.
11. On perusal of the material available on record, and having regard to the facts and circumstances of the case, the appellant/defendant has not made out any substantial question of law in this second appeal and hence, this second appeal is dismissed confirming the judgment and decree dated 13.03.2020 passed in A.S.No.7 of 2017 by the IX Additional Chief Judge, City Civil Court, Hyderabad confirming the judgment and decree dated 16.11.2016 passed in O.S.No.135 of 2013 by the I Senior Civil Judge, City Civil Court, Hyderabad. However, the appellant/defendant granted three months time to vacate and handover the schedule premises to the respondents/plaintiffs by clearing all arrears, failing which, the respondents/plaintiffs are at liberty to recover the same, in accordance with law. It is made clear that no further extension of time will be granted to the appellant/defendant. There shall be no order as to costs.
Pending miscellaneous applications, if any, shall stand closed.
________________________ T. AMARNATH GOUD, J.
Date: 14.09.2021 kvrm