Andhra Pradesh High Court - Amravati

Thota Ramesh Babu, vs Vuppala Ramesh on 22 December, 2021

     THE HON'BLE SRI JUSTICE M.VENKATA RAMANA

                S.A.Nos.583 & 584 OF 2021

COMMON JUDGMENT:-

       The second appeal No.584 of 2021 is preferred against

the judgment in O.S.No.991 of 2015 on the file of the Court of

learned II Additional Junior Civil Judge, Visakhapatnam,

whereby the appellant was directed to vacate the demised

premises.

2.     The second appeal No.583 of 2021 is preferred against

the dismissal of the suit in O.S.No.275 of 2015 of the same

Court at Visakhapatnam, where the appellant sought relief of

perpetual injunction against the respondents.

3. The relationship between the appellant and the

respondents in both the second appeals is not in dispute. The

appellant is a tenant of the demised premises belonging to the

respondent in S.A.No.584 of 2021.

4. The demised premises is a shop room of 160 square feet

in the ground floor of building bearing Door Nos.29-2-38/1A

and 29-2-38/3A situated in Survey No.1670 in Block No.47,

Allipuram Ward situated near Judge Court, Visakhapatnam.

5. This shop room was let out according to him on a

monthly rent of Rs.800/- and upon receiving an advance of

Rs.8,000/-. The appellant further claimed that the rent

payable on the date when he instituted O.S.No.991 of 2015

was Rs.1,500/- per month and that rent receipts were not

being issued by the landlord. Stating that there was threat

from the respondents in S.A.No.583 of 2021 of his

dispossession from this shop room, he sought relief of

perpetual injunction against them and that his possession of

the same be protected.

6. In the suit concerned to S.A.No.584 of 2021 filed by the

landlord, who is the respondent therein, he sought eviction of

the appellant on the ground that he is the absolute owner of

the demised premises and that the appellant was a tenant of

the said premises from the time of his father Sri Vuppala

Srirama Murthy. Further, the contention of the landlord is

that the appellant failed to pay the rents from February, 2014

onwards and has been keeping the shop room under lock and

key for days together without maintaining it, affecting its

value.

7. Claiming that the appellant did not have any interest to

continue as the tenant in the premises and finding such

attitude, the landlord got issued a legal notice dated

09.07.2015 to the appellant to vacate this premises on or

before 31.10.2015 and also, demanded to pay arrears of rent

as well as damages for use and occupation. On such premise

claiming that tenancy of the appellant stood terminated by

means of the above legal notice, the land lord instituted the

suit for eviction.

8. The defence set up by the appellant in the suit for

eviction is that he never defaulted in paying the rents and

questioned the quit notice issued to him. He also denied that

he fell in arrears in paying the rents and that he caused

damage to the premises.

9. The trial Court consolidated both the suits and the

issues were settled. Upon the evidence let in by the appellant

as well as the land lord, who examined themselves as PW1

and DW1 respectively relying on the documents produced by

them in Ex A1 to Ex A4 and Ex B1 to B3, ultimately rejecting

the defence of the appellant, decreed the suit directing him to

vacate the demised premises granting two (2) months time

and also directing him to pay arrears of rent at Rs.21,000/-

for use and occupation from February, 2014 to March, 2015.

The suit for perpetual injunction filed by the appellant against

the landlord was dismissed.

10. The appeals preferred by the appellant to the first

appellate Court against the decrees and judgments in both

the suits were also dismissed confirming them. Thus, eviction

of the appellant from the demised premises stood confirmed

in the appeal. These are the circumstances under which these

two (2) second appeals came to be presented.

11. Heard Sri Reddy Venkata Ramana, learned counsel for

the appellant and Sri G. Rama Gopal, learned counsel for the

respondent/respondents. Since, both the learned counsel

addressed arguments at the stage of admission, these two (2)

second appeals are being disposed of by this common

judgment.

12. The substantial questions of law sought to be raised in

S.A.No.584 of 2021 are with reference to the jurisdiction of

the civil Court to entertain a suit of this nature for eviction

against the appellant at the instance of the land lord.

13. In so far as S.A.No.583 of 2021 is concerned, the

substantial question of law is with reference to the attempt on

the part of the land lord or his successors in interest to

dispossess the appellant.

14. Ex facie it has to be stated that the substantial question

sought to be raised in S.A.No.583 of 2021 is purely based on

question of fact. It is not amenable to consider in terms of

Section 100 C.P.C. Therefore, the only question to consider in

terms of Section 100 C.P.C. is whether the tenancy of the

demised premises of the appellant is protected by Section 32

of Andhra Pradesh Buildings (Lease, Rent and Eviction)

Control Act, 1960 (for short, "the Act").

15. The main contention of Sri Reddy Venkata Ramana,

learned counsel for the appellant is that admittedly on the

date of institution of the suit, the rent payable to the shop

room was less than Rs.3,500/- per month and therefore in

terms of Section 32(c) of the afore said Act, the civil Court did

not have jurisdiction to entertain a suit of this nature and

thus, the tenancy of the appellant stood protected statutorily.

16. However, Sri Ram Gopal, learned counsel referring to

the observations of the trial Court in para No.34 of its

judgment, requested to consider the age of the building where

the appellant has been a tenant and that it did not fall within

the purview of Section 32(b) of the Act since such protection

stood extended for a period of fifteen (15) years from the date

of completion of construction. Thus, learned counsel

contended that the civil Court has jurisdiction to entertain

the suit of this nature and therefore, the eviction directed

against the appellant is just and appropriate calling for no

interference at this stage.

17. Sri Ram Gopal, learned counsel also referred to the age

of the building that was constructed in the year, 2004 as is

established by Ex B2, registered Gift Settlement Deed and

which is relied on by the land lord. The appellant did not

dispute Ex B2, as such.

18. Learned counsel for the appellant relied on the larger

bench judgment of this Court in "Ramvilas Bajaj and others

V. Ashok Kumar and others1" in support of his contention

and adverting to the fact that the date of institution of the

suit in construing Section 32 of the Act has no bearing and

benefit under the amended provisions of the Act can well be

applied on the date of decree as such.

19. However, the aforestated larger bench ruling was set

aside to certain extent by the Hon'ble Supreme Court in

"Noorunissa Begum V. Brij Kishore Sanghi"2. Similar

question was considered by me recently in "L.Nageswara

Rao V. Srinivasa Rao"3 in a slight different factual context.

In para No.66 of the aforestated judgment, I had an occasion

to consider the effect of the aforesaid judgment of the Hon'ble

Supreme Court and it is reproduced hereunder:-

2007 (4) ALT 348 (L.B.)

2015 (17) scc 128

2021 (6) ALT 212

"In Noorunnisa Begum judgment of larger bench was interfered with to certain extent and holding that such part of G.O.Ms.No.636, being redundant was set aside. Ultimately, regarding clause (b) in para-52 of judgment of Hon'ble Supreme Court (as reported in 2015(4) ALD 155) it is held as follows:

"(a) Part of Section 32 of prospective and some part of it is retrospective.

MVR,J S.As.Nos.416 and 453 of 2014.

(b) The exemption granted by the State Government under Section 26 of the Act by G.O.Ms.No.636, dated 29.12.1983 has overriding effect over rest of provisions of the Act.

(c) The buildings whose rents are upto Rs.3,500/- in the Municipal areas and Rs.2,000/- in other areas were already covered by the Act and after amendment it continues to be covered by the Act but the tenants of buildings, rent of which is more than Rs.1,000/- and does not exceed Rs.3,500/- in the Municipal area or Rs.2,000/- in other area even after amendment of Section 32 cannot claim protection in view of the exemption granted under Section 26 of the Act.

(d) Section 26 and Section 32 of the Act operate in two different fields. Section 32 relates to non-applicability of the Act to a class of building(s) whereas Section 26 deals with the power of the State to exempt the building or class of buildings to which Act is applicable. In fact, there is no clash between Section 26 and Section 32, as they operate in two different fields and, therefore, the question of overriding of one over another does not arise.

(e) Clause (a) of G.O.Ms.No.636, dated 29-12-1983 has become redundant. However, clause (b) of the G.O.Ms.No.636, dated 29- 12-1983 still holds good.

(f) The suit(s), appeal(s), revision application(s) or execution case(s) which are pending for determination under the General Law are not affected by amended Section 32 and will continue to be decided in accordance with General Law."

20. Apart from it, when protection offered in terms of

Section 32 of the Act is by means of two definite and separate

incidences in a two tier system, the quantum of rent alone

cannot be taken as criteria for applying the said provision. In

addition, the age of the building should also be considered as

rightly done by the trial Court in para No.34 of its judgment.

When this shop room was constructed in the year 2004, when

it is considered from the date of institution of the suit, it is

clear that the building was constructed within fifteen (15)

years. Therefore, the protection in terms of Section 32(b) of

the Act comes into play.

21. Therefore, when the trial Court and appellate Court