Telangana High Court
Mr.M.Naveen vs Smt.S.Indira on 22 January, 2024
HON'BLE SRI JUSTICE LAXMI NARAYANA ALISHETTY
SECOND APPEAL No.231 of 2023
JUDGMENT:
This Second Appeal is filed challenging the judgment and decree dated 25.10.2022 passed in A.S.No.136 of 2018 on the file of the II Additional Chief Judge, City Civil Court at Hyderabad, confirming the judgment and decree dated 17.04.2018 passed in O.S.No.399 of 2016 on the file of the Court of the I Senior Civil Judge, City Civil Court, Hyderabad. Thus, the present Second Appeal is filed against the concurrent findings of trial Court as well as first Appellate Court.
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 plaintiffs are the owners and landladies of non- residential premises/Mulgi admeasuring 15.08 ft. x 33.5 sq.ft., plinth area 523 sq.feets in second floor of building under Municipal No.4-8-804, 805, 805/1, Opp: Golden Press, Gowliguda, Hyderabad (for short 'suit schedule property'). The defendant had obtained the suit schedule property on rent basis under unregistered lease deed executed in the year 2005 2 LNA, J S.A.No.231 of 2023 with the plaintiffs and he had deposited a sum of Rs.1,00,000/- with the plaintiffs towards interest free security deposit. Originally, monthly rent was fixed at Rs.5,000/- and the same was enhanced from time to time at the rate of 10% on the than monthly rent after expiry of every three years as per clause No.4 of lease deed and present monthly rent is Rs.6,655/-. Apart from monthly rent the defendant had also agreed to pay property tax, water consumption charges, maintenance charges, electricity consumption charges in respect of the suit schedule property. Further, the defendant had agreed that he will maintain the suit schedule property as a prudent man and he shall handover the same in actual condition.
4. However, the defendant failed to pay the water consumption charges and maintenance charges since inception of tenancy. Further, he also failed to pay the monthly rent and property tax from September, 2014 to January, 2016 in spite of repeated demands. To the surprise of plaintiffs, they received a legal notice dated 19.09.2015 stating the defendant intended to vacate the suit schedule property by 14.11.2015 and also requested them to refund the amount of Rs.1,00,000/-, which 3 LNA, J S.A.No.231 of 2023 was paid by him towards refundable deposit. Upon receipt of the same, the plaintiffs issued suitable reply dated 20.10.2015 to the defendant and the same was returned with a postal endorsement "addressee lift". Thereby, the plaintiffs constrained to send the reply notice dated 20.10.2015 to the defendant's business place. In spite of receipt of the same, the defendant has failed to comply with the same.
5. Further, as the plaintiffs have failed to maintain the suit schedule property, the plaintiffs constrained to issue notice dated 04.02.2016 demanding the defendant to pay an amount Rs.2,00,000/- towards the damages caused by him to the suit schedule property. Though the defendant received the said notice on 05.02.2016, he failed to comply with the same. It is contended that the acts of the defendant in not paying the monthly rent and property tax is intentional and deliberate, in spite of repeated demands made by the plaintiffs. Therefore, the plaintiffs have filed the suit for recovery of possession; to recover Rs.33,967/- towards arrears of rent and property tax; Rs.21,000/- towards past mesne profits/damages; Rs.15,000/- per month or at any further rate till the date of handing over 4 LNA, J S.A.No.231 of 2023 vacant and actual possession of the suit schedule property to the plaintiffs; Rs.2,00,000/- towards cost of reconstruction for the damages caused by the defendant in the suit schedule property and restoration of amenities and Rs.3,000/- towards cost of legal notice dated 04.02.2016.
6. The defendant filed written statements denying the plaint averments and inter alia stating that he was doing business along with his brother and from 2009 onwards and the plaintiffs herein have started harassing him and others with mala fide intentions. To that effect a legal notice was also issued to the plaintiffs dated 17.06.2013 with regard to ground floor mulgi. Further, on receipt of notice by the defendant dated 15.09.2015, the plaintiffs invented and fabricated the alleged allegation of damage, non-payment of tax, default in rents etc., to overcome their mis-deeds and with a malafide intention to escape from complying with the notice dated 15.09.2015. The defendant submits that from the inception of lease, till vacating the suit schedule property, he has not defaulted the lease condition and moreover, the copy of lease agreement filed by 5 LNA, J S.A.No.231 of 2023 the plaintiffs is also doubtful and they are put to strict proof of the same.
7. It is contended that defendant never received the alleged notice dated 04.02.2016 on 05.02.2016 as he had already vacated the premises as per notice dated 15.09.2015 and handed over the possession to the plaintiffs. Further, the said notice dated 04.02.2016 is invented by the plaintiffs for wrongful gain by misusing the process of the law and moreover the plaintiffs have no cause of action for the suit against the defendant and the suit is mis-conceived.
8. Before the trial Court, on behalf of the plaintiffs, P.W.1 and P.W.2 were examined and Exs.A1 to A.13 were marked. On behalf of the defendants, D.W.1 and D.W.2 were examined and no documents were marked.
9. The trial Court, after considering the entire material available on record, decreed the suit with costs vide judgment and decree dated 17.04.2018, and the defendant was directed to vacate and handover the vacant possession of the suit schedule property; directed to pay Rs. 33,967/- towards arrears 6 LNA, J S.A.No.231 of 2023 of rent and property tax from September, 2014 to February, 2016; and also directed to pay arrears of monthly rent and property tax from February, 2016 to April, 2018.
10. Aggrieved by the judgment and decree dated 17.04.2018, the defendant has filed A.S.No.136 of 2018. The first appellate Court on re-appreciation of the entire evidence and perusal of the material available on record vide judgment and decree dated 25.10.2022 dismissed the appeal confirming the judgment and decree passed by the trial Court. Hence, the present second appeal.
11. Heard Sri Sujith Jaiswal, learned counsel for the appellant and Sri S.R.Deshmukh, learned counsel for the respondents. Perused the record.
12. A perusal of the record discloses that both the Courts below concurrently held that the plaintiffs have established their claim in respect of recovery of possession of the suit schedule property, arrears of rent and property tax, future mense profits.
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13. Learned counsel for appellant vehemently 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.
14. However, 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.
15. 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.
16. 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 1 (2007) 1 Supreme Court Cases 546 8 LNA, J S.A.No.231 of 2023 under Section 100 C.P.C. is very limited and it can be exercised only where a substantial question of law is raised and fell for consideration.
17. 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 appellants are factual in nature and no question of law much less a substantial question of law arises for consideration in this Second Appeal.
18. Hence, the Second Appeal fails and the same is accordingly dismissed at the stage of admission. No costs.
Pending miscellaneous applications, if any, shall stand closed.
___________________________________ LAXMI NARAYANA ALISHETTY, J Date: 22.01.2024 Dua