Telangana High Court
M/S. Quality Car Care, vs Mrs. Kiran Dutt, on 9 January, 2024
HON'BLE SRI JUSTICE LAXMI NARAYANA ALISHETTY
SECOND APPEAL No.539 of 2023
JUDGMENT:
This Second Appeal is filed challenging the judgment and decree dated 30.10.2023 passed by the I Additional District Judge, Medchal-Malkajgiri District at Kushaiguda, in A.S.No.145 of 2022 (old A.S.No.72 of 2021), confirming the judgment and decree dated 08.09.2021 passed by the Principal Senior Civil Judge, Ranga Reddy District at L.B. Nagar, in O.S.No.1432 of 2019.
2. For the sake of convenience, the parties are referred to as they are arrayed before the trial Court.
3. Brief facts leading to filing of the present Second Appeal are that the respondent/plaintiff filed the suit in O.S.No.1432 of 2019 seeking eviction of the appellants/defendants from the suit schedule property and for mesne profits. It is contended that the defendants have approached the plaintiff in the year 2018 and requested her to lease out part of the schedule property for running car care business under the name and style of M/s. Quality Car Care. The plaintiff accepted the said proposal and leased out the suit schedule property for a period of three years 2 LNA, J S.A.No.539 of 2023 commencing from 01.04.2018 on a monthly rent of Rs.32,000/- subject to enhancement of rent @ 5% per annum. Accordingly, the plaintiff and the defendants entered into a registered lease deed dated 12.04.2018. The defendants have paid a sum of Rs.1,80,000/- to the plaintiff as security deposit, which is refundable at the time of vacating the suit property without interest.
4. It is further contended that after execution of the lease deed, the defendants have started their business in the suit schedule property; that the defendants paid the rents for four months, but they stopped paying the rents and electricity consumption charges from September, 2018 onwards. As per clause 20 of the lease deed, if the defendants commit default in payment of rent for more than one month, the plaintiff got every right to terminate the tenancy by giving a month's advance notice to the defendants and proceed legally for eviction. Therefore, the plaintiff got issued legal notice to the defendants on 19.03.2019 calling upon them to vacate the suit schedule property within 30 days from the date of receipt of the said notice. The defendants, 3 LNA, J S.A.No.539 of 2023 instead of complying with the said legal notice, filed a suit being O.S.No.325 of 2019 for perpetual injunction by making false and frivolous allegations. Hence, the plaintiff filed the present suit.
5. The defendants filed written statement admitting their relationship with the plaintiff as landlord and tenant and also admitting the registered lease agreement executed between them. The defendants specifically stated that they have been paying the rents regularly and that the plaintiff refused to receive the rents from March, 2019, and made nuisance at the suit schedule property, and therefore, they filed a suit against the plaintiff for injunction and prayed to dismiss the suit.
6. During the pendency of the present suit, the plaintiff has filed I.A.No.863 of 2019 seeking a direction to the defendants to deposit the admitted rents into the Court. The trial Court vide order dated 07.02.2020 allowed the said I.A. directing the defendants to deposit the admitted rent of Rs.32,000/- per month from September, 2018 to May, 2019 i.e., Rs.2,88,000/- and continue to pay future rents till the disposal of the suit, within a period of one month from that date, failing which, their defence 4 LNA, J S.A.No.539 of 2023 would be struck off. The defendants did not comply with the said order and filed I.A.No.304 of 2020 seeking enlargement of time, however, the said I.A. was dismissed as infructuous on 22.12.2020. Consequently, the defence of the defendants was struck off in terms of the order passed in I.A.No.863 of 2019.
7. On behalf of the plaintiff, P.W.1 was examined and Exs.A1 and A.2 were marked.
8. The trial Court, after considering the entire material available on record, vide judgment and decree dated 08.09.2021, decreed the suit directing the defendants to vacate and handover the suit schedule property to the plaintiff within a period of three months. The trial Court observed that the plaintiff is entitled to get mesne profits and arrears of rent from September, 2018 to May, 2019 @ Rs.32,000/- per month on payment of Court fee, after ascertaining them under separate enquiry.
9. Aggrieved by the judgment and decree dated 08.09.2021, the defendants filed A.S.No.72 of 2021 in the unit of the District Judge, Ranga Reddy District at L.B. Nagar. However, in view of creation of new judicial districts, the case was transferred to the 5 LNA, J S.A.No.539 of 2023 Court of the I Additional District Judge, Medchal-Malkajgiri District at Kushaiguda, and it was re-numbered as A.S.No.145 of 2022. During the pendency of the said A.S., the defendants filed I.A.No.951 of 2023 under Order XLI Rule 25 read with Section 151 C.P.C. with a prayer to frame an issue "whether the defendants despite striking off the defence can cross-examine the plaintiff's witness and argue the main suit? and remand the matter to the learned trial Court with a direction to allow them to cross-examine the plaintiff's witness and argue the suit on merits".
10. The first Appellate Court, on re-appreciation of the entire evidence and perusal of the material available on record, dismissed both A.S.No.145 of 2022 and I.A.No.951 of 2023 confirming the judgment and decree passed by the trial Court, vide judgment and decree dated 30.10.2023. Aggrieved by the judgment and decree dated 30.10.2023 passed in A.S.No.145 of 2022, the appellants filed the present second appeal.
11. Heard Sri Prabhakar Sripada, the learned Senior Counsel for Sri Setty Ravi Teja, the learned counsel for the appellants and 6 LNA, J S.A.No.539 of 2023 Sri Jagadeeshwar Rao, the learned counsel for the respondent. Perused the record.
12. The learned Senior Counsel appearing for the appellants had submitted that the trial Court, without proper appreciation of evidence, has decreed the suit directing the appellants to vacate and handover the vacant possession of the suit schedule property to the respondent/plaintiff within three months and that the first Appellate Court erred in confirming the judgment and decree passed by the trial Court. He further contended that the first Appellate Court wrongly construed that the trial Court granted sufficient opportunities, but, the appellants failed to cross- examine P.W.1; that in fact, the trial Court was adjourning the matter for compliance of the conditional order dated 15.04.2021 passed in I.A.Nos.64 and 65 of 2021, which were filed seeking permission to cross-examine P.W.1 and for enlargement of time to pay the admitted rents in terms of the order dated 07.02.2020 in I.A.No.863 of 2019. Therefore, the time granted by the trial Court for complying with the said conditional order dated 15.04.2021 7 LNA, J S.A.No.539 of 2023 respectively, cannot be termed as granting time to the appellants to cross-examine P.W.1.
13. The learned Senior Counsel further contended that the appellants are running car garage by employing 20 persons and they have invested huge amounts in establishing the said car garage, and that if they are evicted from the schedule premises, the appellants would be put to great hardship and irreparable loss.
14. The learned Senior Counsel has relied upon the judgment of the Apex Court in Modula India v. Kamakshya Singh Deo 1, with regard to the right of the defendants to cross examine notwithstanding striking of the defence.
15. Per contra, the learned counsel appearing for the respondent/plaintiff submitted that the appellants and the respondent entered into lease agreement dated 12.04.2018 in respect of the suit schedule property for a period of three years commencing from 01.04.2018 on a monthly rent of Rs.32,000/-; that the appellants defaulted in payment of rents from 1 (1988) 4 SCC 619 8 LNA, J S.A.No.539 of 2023 September, 2018 i.e., within a period of six months and enjoying the possession over the suit schedule property illegally without paying the rents. The learned counsel also contended that the respondent is a senior citizen and widow and she is being harassed by the appellants by depriving her of legitimate amounts. He further contended that though the trial Court has granted sufficient time, the appellants did not pay the rents and that the appellants have paid the rents only in compliance of the order passed by the first appellate Court in the appeal, while granting the stay, which shows the attitude of the appellants towards the respondent. The learned counsel further contended that both the trial Court as well as the first Appellate Court have appreciated the evidence and material on record and held concurrently against the appellants and that no question of law much less substantial question of law arises for consideration in this Second Appeal. Therefore, he prayed to dismiss the present Second Appeal.
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16. A perusal of the record discloses that the respondent/plaintiff filed I.A.No.863 of 2019 in O.S.No.1432 of 2019 to direct the appellants/defendants to deposit the admitted rent from September, 2018 to May, 2019 and the trial Court vide order dated 07.02.2020 directed the appellants to deposit the admitted rents and further directed them to continue to deposit the future rents till the disposal of the suit within a period of one month, failing which, their defence would be struck off. The appellants, instead of complying with the said direction, filed I.A.No.304 of 2020 seeking to enlarge time for depositing the rents. The said I.A. was dismissed as infructuous on 22.12.2020 and consequently, the defence of the appellants was struck off.
17. The record further discloses that the appellants/defendants filed I.A.Nos.64 and 65 of 2021 seeking permission to cross- examine P.W.1 and for enlargement of time to pay the admitted rents in terms of the order dated 07.02.2020 passed in I.A.No.863 of 2019 respectively. The trial Court disposed of the said Interlocutory Applications vide common order dated 15.04.2021, the operative portion of which reads under:
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LNA, J S.A.No.539 of 2023 "In the result, the interlocutory applications filed by the defendants would be allowed on condition of the defendants paying costs of Rs.10,000/- in each application to the plaintiff by the next date of hearing and paying the entire arrears of rent, as directed by this Court in I.A.No.863 of 2019, within one month fifteen days, from today, that is, by 01-06-2021, filing which the applications shall stand dismissed. Call on 01.06.2021 for compliance."
18. The appellants/defendants did not comply with the said conditional order by paying the costs of Rs.10,000/- imposed by the trial Court in I.A.No.64 of 2021 which was filed for cross- examination of P.W.1. However, the trial Court adjourned the matter from time to time i.e., 10.06.2021, 24.06.2021, 02.07.2021, 14.07.2021 and ultimately, dismissed the said Interlocutory Applications for default on 11.08.2021.
19. It is also evident from the record that the appellants did not comply with any of the conditions imposed by the trial Court vide common order dated 15.04.2021, which clearly shows the conduct of the appellants. Therefore, the trial Court has rightly proceeded with adjudication of suit on merits and decreed the suit on proper appreciation of evidence, material available on record and the same was also confirmed by the first appellate Court. 11
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20. Though the learned counsel for appellants vehemently argued that the trial Court decreed the suit without proper appreciation of the evidence, and the first Appellate Court erred in confirming same, it is to be seen that the learned counsel for appellants 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.
21. It is well settled principle by a catena of decisions of the Apex Court that in the Second Appeal filed under Section 100 C.P.C., this Court cannot interfere with the concurrent findings arrived at by the Courts below, which are based on proper appreciation of the oral and documentary evidence on record.
22. Further, in Gurdev Kaur v. Kaki 2, 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 2 (2007) 1 Supreme Court Cases 546 12 LNA, J S.A.No.539 of 2023 where a substantial question of law is raised and fell for consideration.
23. 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 a substantial question of law arises for consideration in this Second Appeal.
24. Hence, the Second Appeal fails and the same is accordingly dismissed at the stage of admission. No costs.
25. At this juncture, the learned counsel for the appellants prayed for granting some reasonable time to vacate the schedule premises.
26. Hence, three months time is granted to the appellants for vacating the schedule premises subject to the appellants filing an undertaking to that effect before the trial Court, within a period of one week from the date of receipt of a copy of this order. 13
LNA, J S.A.No.539 of 2023 Pending miscellaneous applications, if any, shall stand closed.
__________________________________ LAXMI NARAYANA ALISHETTY, J Date: 09.01.2024 va