Telangana High Court
Shaik Mohammed vs Sajid Mazheruddin Quadri on 5 February, 2024
HON'BLE SRI JUSTICE LAXMI NARAYANA ALISHETTY
SECOND APPEAL No.486 of 2023
JUDGMENT:
Challenging the validity and legality of the judgment and decree, dated 03.10.2023, passed in A.S.No.59 of 2023 on the file of the Court of IX Additional Chief Judge, City Civil Court, Hyderabad, confirming the judgment and decree dated 31.01.2023 passed by the VII Junior Civil Judge, City Civil Court, Hyderabad, in O.S.No.3696 of 2021, the present Second Appeal is filed.
2. The appellants are the defendants and the respondent is the plaintiff in the suit. For convenience, hereinafter the parties are referred to as they are arrayed in the suit.
3. The facts of the case in brief, which led to filing of the present Second Appeal, are that the plaintiff instituted the suit against the defendants seeking to vacate and hand over the possession of 'A' and 'B' schedule properties and to award future damages @ Rs.50,000/- per month for A-schedule property and Rs.70,000/- per month for B-schedule property from the date of filing of the suit till the delivery of possession. 2
LNA, J S.A.No.486 of 2023 3.1. In the plaint, it is averred that the plaintiff is the absolute owner and landlord of 'A' and 'B' schedule properties. Defendant No.1 obtained A-schedule property on lease for running business for eleven (11) months on a monthly rent of Rs.20,000/- and a rental agreement was entered on 15-08-2020 and thus, the tenancy ends on 14-07-2021 and the deposit of Rs.2,00,000/- was kept with plaintiff. Defendant No.2, who is the wife of defendant No.1, entered into lease deed in respect of B-schedule property on a monthly rent of Rs.39,360/- through rental agreement dated 15-08- 2020. It was further averred that the defendants agreed to pay rent on or before 15th of every month and defendants No.1 used to pay consolidated rent of Rs.60,000/-, excluding electricity charges, for both the plaint 'A' and 'B' schedule properties and the plaintiff used to issue receipts therefor.
3.2. It was further averred that the defendants paid rent up to March, 2021, through bank transfer, but failed to pay the rent for the let out premises from April, 2021 in spite of several requests. 3.3. It was also averred that the defendants violated Clause-8 of the rental agreement and sublet a part of the schedule premises to 3 LNA, J S.A.No.486 of 2023 one Mir Azeemuddin and the defendants filed W.P.No.12897 of 2021 before Hon'ble High Court on baseless allegations to overcome the willful default in payment of rents. As the defendants violated the terms of the rental agreements, the plaintiff has given one month time to the defendants to vacate the subject premises. 3.4. Further, it was averred that the plaintiff got issued legal notices on 07-08-2021, which were served on the defendants, for which they issued common reply notice dated 22-07-2021 on false grounds and the plaintiff issued rejoinder on 07-08-2021. Since the defendants failed to vacate the schedule premises, the suit was filed seeking the relief of eviction and for damages.
4. It is to be noted here that the trial court observed that the defence of the defendants in the main suit was struck off on 04-08-2022, as such the defence of the defendants was not taken into consideration by the trial Court and the first Appellate Court.
5. To substantiate the case, on behalf of plaintiff, the plaintiff got himself examined as P.W-1 and marked Exs.A-1 to A-8.
6. The trial Court, upon considering the oral and documentary evidence and the contentions of both the parties, vide judgment 4 LNA, J S.A.No.486 of 2023 dated 31.01.2023, observed that though there is some infirmity in the deposition of the plaintiff as regards the accurate details of the extent of the let out properties to the defendants, all other parameters necessary for enforcement of the right to evict the defendants from their illegal occupation of plaint 'A' and 'B' schedule properties were fulfilled. Accordingly, the trial Court held that the plaintiff is entitled for recovery of possession of the suit schedule properties by evicting the defendants. 6.1. Further, with respect to the claim for damages, the trial Court on consideration of the material available on record, observed that the plaint is devoid of details of default period in paying the rents and there is no specific plea with respect to the quantum of loss caused to the plaintiff and accordingly, held that the plaintiff is not entitled for damages as prayed for. 6.2. In light of the above discussion, the trial Court partly decreed the suit, directing the defendants to vacate and hand over vacant possession of the suit schedule properties to the plaintiff within a period of two months from the date of the said judgment. 5
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7. The first Appellate Court, being the final fact-finding Court, re-appreciated the entire evidence and the material available on record and observed that the conditional stay order granted by it was not complied with by the defendants within the stipulated time and that the challan produced by the defendants show that the deposit of the amount was made on 02.06.2023 and it appears that it was made after vacating the stay order granted in the appeal. That apart, the first Appellate Court also observed that though there is slight difference over the actual extent of the schedule properties, it does not have any bearing on the suit which is filed for eviction. 7.1. The first Appellate Court further observed that the plaintiff being the owner of the schedule properties has issued legal notices to the defendants stating that he is intending to terminate the tenancy of the defendants and to evict them from the suit schedule properties. Admittedly, the defence of the defendants was struck off before the trial Court. It was further observed that the defendants have committed default in payment of rents. By observing so, the first Appellate Court dismissed the appeal upholding the judgment of the trial Court.
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8. Heard Sri D.Y.N.L.N.Charyulu, learned counsel for the appellants, and Sri A.Najeeb Khan, learned counsel for the respondents. Perused the record.
9. A perusal of the record discloses that both the trial Court and the first Appellate Court concurrently held that the plaintiff is entitled for eviction of the defendants from the suit schedule properties, but, however, negatived his claim for damages.
10. Learned counsel for appellant argued that the trial Court decreed the suit without proper appreciation of the evidence and the first Appellate Court also committed an error in confirming the judgment and decree passed by the trial Court.
11. However, learned counsel for appellant failed to raise any substantial question of law to be decided by this Court in this Second Appeal. In fact, all the grounds raised in this appeal are factual in nature and do not qualify as the substantial questions of law in terms of Section 100 C.P.C.
12. It is well settled principle, by a catena of decisions of the Apex Court, that in the Second Appeal filed under Section 100 7 LNA, J S.A.No.486 of 2023 C.P.C., this Court cannot interfere with the concurrent findings on facts arrived at by the Courts below, which are based on proper appreciation of the oral and documentary evidence on record.
13. Further, in Gurdev Kaur v. Kaki 1, the Apex Court held that the High Court sitting in Second Appeal cannot examine the evidence once again as a third trial Court and the power under Section 100 C.P.C. is very limited and it can be exercised only where a substantial question of law is raised and fall for consideration.
14. Having considered the entire material available on record and the findings recorded by the trial Court as well as the first Appellate Court, this Court finds no ground or reason warranting interference with the said concurrent findings, under Section 100 C.P.C. Moreover, the grounds raised by the appellant are factual in nature and no question of law much less substantial question of law arises for consideration in this Second Appeal.
15. Hence, the Second Appeal fails and the same is accordingly dismissed at the stage of admission. No costs. 1 (2007) 1 Supreme Court Cases 546 8 LNA, J S.A.No.486 of 2023
16. Pending miscellaneous applications, if any, shall stand closed.
__________________________________ JUSTICE LAXMI NARAYANA ALISHETTY Date:05.02.2024 dr