Andhra Pradesh High Court - Amravati
Tiriveedhi Ramesh vs M. Subbaramaih on 22 June, 2021
MVR,J
S.A.No.130 of 2020
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IN THE HIGH COURT OF ANDHRA PRADESH AT AMARAVATI
HONOURABLE SRI JUSTICE M. VENKATA RAMANA
SECOND APPEAL No.130 of 2020
Between:
Tiriveedhi Ramesh, S/o.Ramasubbaiah
... APPELLANT
AND
M.Subbaramaiah, S/o.Lakshmi Narasimhulu
... RESPONDENT
DATE OF JUDGMENT PRONOUNCED :22.06.2021
SUBMITTED FOR APPROVAL
HONOURABLE SRI JUSTICE M. VENKATA RAMANA
1. Whether Reporters of Local Newspapers
may be allowed to see the order? Yes/No
2. Whether the copy of order may be
marked to Law Reporters/Journals? Yes/No
3. Whether His Lordship wish to see the
fair copy of the order? Yes/No
____________________
M.VENKATA RAMANA, J
MVR,J
S.A.No.130 of 2020
2
*IN THE HIGH COURT OF ANDHRA PRADESH AT AMARAVATI
*HONOURABLE SRI JUSTICE M. VENKATA RAMANA
+ S.A.No.130 of 2020
% Dated : 22.06.2021
Between:
# Tiriveedhi Ramesh
... APPELLANT
AND
$ M.Subbaramaiah
... RESPONDENT
! Counsel for appellant : Mr. P.Ganga Rami Reddy
^Counsel for Respondent : Mr.V.Siva Prasad Reddy
<GIST :
>HEAD NOTE:
? Cases referred:
1. AIR 2005 SC 2905
2. AIR 2018 SC 2847
3. AIR 1996 SC 140
____________________
M.VENKATA RAMANA, J
MVR,J
S.A.No.130 of 2020
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HON'BLE SRI JUSTICE M. VENKATA RAMANA
S.A.No.130 of 2020
JUDGMENT:
The defendant is the appellant. The respondent was the plaintiff in
O.S.No.213 of 2014 on the file of the Court of learned Principal Senior Civil
Judge, Nellore. The respondent laid the suit for eviction of the appellant
from the demised premises, for arrears of rent and with future interest at
12% per annum from the date of the suit till realisation.
2. The demised premises is a commercial property at Stone House Pet
of Nellore City bearing Old Door No.6/72, New Door No.6/122 that included
a tiled house and two godowns within the boundaries described in the
plaint schedule. The demised premises admittedly belonged to the
respondent. The defendant initially was his tenant of the tiled portion and
later on he became the tenant of two godowns attached to it. On the date
of the suit, the admitted rent was Rs.13,500/- per month.
3. The respondent instituted the suit on the ground that the appellant
defaulted to pay the rents in spite of his demands and that he got issued a
composite notice dated 22.11.2013 to the appellant demanding
Rs.6,48,000/- being arrears of rent for four years. It was served according
to the respondent, where he offered to renew the lease at the then current
rental structure, and since the appellant did not come forward, the
tenancy was determined thereby. Upon deducting the payments whatever
made by the appellant to the respondent, ultimately, the amount due
towards the arrears stood at Rs.5,88,000/- and with interest thereon, the
total claim stood at Rs.8,92,750/-.
4. The appellant resisted the claim of the respondent on several
grounds denying that he was a defaulter in paying the rents and denying
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that a notice was issued to him on 22.11.2013 upon such terms and
conditions. He further pleaded that the amount if any payable towards
rent as claimed by the respondent is incorrect and this claim is settled on
account of the repairs effected by him to the demised premises spending
his money and that he had arranged sofas, chairs etc. for 'Sumangali
Kalyana Mandapam' started by the respondent on account of which the
respondent was liable to pay Rs.1,50,000/- there on with interest. He also
claimed that the suit claim barred by limitation and referred to many
mediations to settle this dispute in between them through the elders of the
locality.
5. Basing on the above pleadings, the learned trial Judge settled the
issues for trial as under:
"1. Whether the plaintiff is entitled for eviction and delivery of
the plaint schedule property from the defendant, as prayed
for?
2. Whether the plaintiff is entitled for arrears of rent to a tune
of Rs.8,92,750/-along with interest at the rate of 12% per
annum?
3. Whether the claim of rents due is barred by limitation?
4. To what relief?"
6. Both the parties thereupon entered trial, where the respondent
examined himself as P.W.1 while relying on Ex.A1 to Ex.A4 and that the
appellant examined himself as D.W.1.
7. On the material and the evidence, learned trial Judge, by the
judgment dated 22.03.2019 decreed the suit directing the appellant to
vacate the demised premises within three (03) months from that date,
hand over peaceful and vacant possession of the same to the respondent
while further directing payment of arrears of rent at Rs.8,50,500/- along
with interest at 12% per annum from the date of the suit till realisation.
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However, the arrears of rent is directed to be calculated by the respondent
after deducting the amounts paid by the appellant during pendency of the
suit for the period from January 2014 to March 2019. It was further
directed that the respondent could proceed against the appellant in the
event of his failure to comply with the above directions, in accordance
with law.
8. Aggrieved, the respondent preferred an appeal in A.S.No.54 of 2019
on the file of the Court of learned Principal District Judge, Nellore. By the
decree and judgment dated 06.12.2019, the learned appellate Judge
dismissed A.S.No.54 of 2019 and also cross-objections preferred by the
respondent, numbered as A.S.No.92 of 2019 by the common judgment.
Thereby, the findings of the trial Court were confirmed by the appellate
Court, upon considering the questions involved in this matter raising
appropriate points for determination.
9. Against it, this present second appeal is preferred.
10. Sri P.Ganga Rami Reddy, learned counsel for the appellant and Sri
V.Siva Prasad Reddy, learned counsel for the respondent agreed to address
arguments at the stage of admission itself in this second appeal.
Therefore, upon hearing learned counsel for the parties, this second appeal
is being disposed of at this stage itself.
11. The following substantial questions of law are raised by the
appellant in this second appeal:
"A. Whether acceptance of monthly rents by the plaintiff after
determination of lease amounts to waiver of quit notice?
B. Whether claiming and receiving rents by the Land Lord/Plaintiff
subsequent to filing the suit after determination of tenancy by virtue of the
statutory notice under Ex.A3 and acknowledging the monthly rents paid by
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the defendant, the said acts of the plaintiff lead to conclude that the lease
of the premises still holds good and the status of the defendant be "tenant
by holding over" and Land Lord/Plaintiff can seek eviction of tenant?
C. Whether the notice dated 22.11.2013 issued is in accordance with
the contents laid under Section 106 of the Transfer of Property Act and in
the absence of non-compliance can eviction be ordered?
D. Whether the Court below acted legally in marking the unmarked
documents Ex.A3 and Ex.A4 at the stage of arguments without giving
opportunity to the parties is in accordance with Civil Rules of Practice?
12. Essentially, the questions required to be considered and determined
in this second appeal relate to,
(1) the procedure adopted by the learned trial Judge at the stage of
passing the judgment in substituting certain documents for Ex.A3
and Ex.A4 that were already on record, without notice to the
parties.
(2) Application of Section 106 of Transfer of Property Act on account
of notice dated 22.11.2013 got issued by the respondent to the
appellant determining the tenancy.
13. Though contentions are advanced relating to application of Section
116 of Transfer of Property Act as if there is waiver of notice of
determination of tenancy, having regard to the material on record and in
given facts and circumstances, on account of concurrent findings recorded
by both the Courts below, it is not necessary to consider now. This ground
raised by the appellant is essentially based on either deposit or payment of
rents pursuant to directions of the trial Court in I.A.No.882 of 2014 by the
order dated 13.03.2015, filed under Order XV-A CPC. Therefore, when
payment of rents by the appellant and receipt of the same by the
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respondent was due to this factor, the appellant cannot lay a claim that
Section 116 of Transfer of Property Act, is applicable to the present case
and that, he being a tenant holding over receipt of rents thereon by the
respondent would renew the tenancy time to time. Therefore, this ground
which was well considered by both the Courts below for similar reason, did
not exist for consideration in this second appeal.
14. Learned counsel for the respondent relied on SHANTI PRASAD DEVI
AND OTHERS v. SHANKAR MAHTO AND OTHERS1 in respect of application
of Section 116 of Transfer of Property Act. This ruling is not relevant for
the present purpose, since question of Section 116 of Transfer of Property
Act is not being considered in this matter.
15. The first question addressed on behalf of the appellant is relating to
a peculiar procedure adopted by the learned trial Judge in introducing
certain documents as if relied on by the respondent at the trial and its
propriety or otherwise.
16. Evidence was let in at the trial by both the parties as already stated
above and in all on behalf of the respondent four documents were
introduced in the evidence being Ex.A1 to Ex.A4. Ex.A2 is stated to be the
first notice of determination of tenancy got issued by the respondent to the
appellant. It was not served on the respondent.
17. Notice initially marked Ex.A3 at the trial through the respondent as
P.W.1, was a photo copy and said to bear the date 22.11.2013. Marking of
this document was objected to on behalf of the appellant at the trial on
account of its inadmissible nature including as secondary evidence under
Section 65 of the Evidence Act. The respondent was subjected to extensive
cross-examination basing on this document then marked as Ex.A3 on behalf
AIR 2005 SC 2905
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of the appellant. A suggestion was also given to P.W.1 on behalf of the
appellant that he did not have proof to show the contents of the second
notice dated 26.11.2013. However, P.W.1 asserted that there has been
proof and he would produce the copy in due course. Further suggestion to
P.W.1 was in the nature of questioning the authenticity of the second
notice dated 26.11.2013 claiming that it is hypothetical and imaginary.
These suggestions in usual course were denied by P.W.1.
18. Ex.A4 is the postal acknowledgment then marked at the trial. P.W.1
in cross-examination clearly stated that Ex.A4 did not relate to Ex.A3
notice reflected by a photo copy dated 22.11.2013. P.W.1 further stated in
the cross-examination for the appellant that Ex.A3 notice dated 22.11.2013
is the first notice and that it was not served on the appellant. He also
stated that a copy of the same notice was sent to the appellant again,
which was served on him. According to P.W.1, only the date was changed
in the second notice while the contents of the first notice remain as they
have been. These two documents viz., Ex.A3 and Ex.A4 marked at the trial
are not forwarded to this Court along with the material record.
19. Such being the situation as seen from the cross-examination of
P.W.1, learned trial Judge chose to substitute both these Ex.A3 and Ex.A4
while preparing the judgment. The manner in which this exercise was
undertaken is stated in Para - 5 of the judgment of the trial Court. It is
desirable to extract the same hereunder:
"In support of his case, the plaintiff himself got examined as
P.W.1. Exs.A1 to A4 are marked. Ex.A1 is annexure showing the
rents from 2001 onwards. Ex.A2 is unserved postal cover of the
notice. Ex.A3 is the Photostat copy of office copy of the legal
notice. The same was marked subject to objection. After
verification of the record office copy of the legal notice signed by
the Advocate is available on record. The Bench Clerk at the time of
marking, instead of marking of office copy of the legal notice, he
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made marking on Xerox copy of the notice. For that reason, the
counsel for the raised objection. Office copy of the legal notice is
available on record, hence, the same is treated as Ex.A3 instead of
Xerox copy of the legal notice on which marking was made. Thus,
the objection of the defendant is overruled. The office copy of the
notice substituted and marked as Ex.A3 in the place of Xerox copy
of legal notice dated 22.11.2013. Ex.A4 is postal acknowledgment
dated 30.11.2013. The counsel for the plaintiff did not mention the
date of postal acknowledgment. At the time of marking this
document also the Bench Clerk instead of marking the document
i.e., acknowledgement dated 30.11.2013 he marked the
acknowledgement pertains to June, 2014. The counsel for the
defendant has done lengthy cross-examination on that aspect. The
counsel for the plaintiff did not rectify the mistake when the other
side cross-examining the witness, he simply kept quite he did not
even brought to the notice of the court he already filed the said
acknowledgement, but, marking was made on another document
i.e., latches on the part of the counsel for the plaintiff. After
verification of the record, the postal acknowledgment dated
30,.11.2013 is found. Hence, the said document was substituted
and marked as Ex.A4. Plaintiff evidence is closed. The defendant
himself got examined as D.W.1. No documents are marked.
Defendant evidence is closed."
20. As seen from the above extracted portion, learned trial Judge chose
to blame the bench clerk as if he was responsible for marking the
documents. Learned trial Judge seemed to have forgotten the role of the
Presiding Officer of the Court as in the course of the trial, in respect of
marking exhibits on behalf of the parties and also the role of the learned
counsel appearing for the parties.
21. After all it is the learned counsel for the plaintiff, who should point
out the documents produced on his behalf to be exhibited, which are
relevant and offering proof of the case he has set up. Similar is the
situation of the learned counsel for the defendant to point out to exhibit
the documents in support of his defence in the course of trial in any civil
suit. Only when the documents being relied on by the parties are marked
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and exhibited, cross-examination would proceed on such basis. When a
document is not exhibited at the trial and just remained as a part of the
file, it cannot be expected to be subjected to cross-examination of a
witness. The other side would take that this document so left out is
purposely ommitted for this purpose. There cannot be any cross-
examination of a witness, on the basis of an unmarked and unexhibited
document, as practice required. The parties to the suit know far better as
to nature of evidence to be introduced by exhibiting the required
documents.
22. The trial Judge cannot remain a silent or mute spectator in the
entire process. The trial Judge has a bounden duty to verify whether the
document so produced is primarily admissible in evidence and if relevant
for the purpose of the case. Thus, an onerous duty is cast upon the trial
Judge and he or she as the Presiding Officer of the Court cannot remain
quiet or shut eyes. Blaming the bench clerk as is done in the present case,
is completely unwarranted and in fact is reflective of throwing the blame
on the ministerial staff instead of accepting the wrong committed at that
stage. This attitude needs serious deprecation.
23. It is not the business of the bench clerk or other ministerial staff to
interfere in the process of the trial, where the parties would be at
loggerheads, ably supported by their learned counsel in the 'august
presence of the Learned Judge', who considers and determines the 'lis'.
Except the ministerial business of attending to the necessity of the court
through the directions, they cannot have any role in such process.
24. The learned trial Judge went to the extent of substituting Ex.A3 and
Ex.A4 by replacing the documents, which were already marked. Though
the learned trial Judge may not have any other intention in doing so,
except in an attempt to correct the situation in her opinion, relating to the
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documents exhibited, the manner in which it was resorted to at the time of
pronouncing the judgment, is quite deplorable. In fact, this act goes
against the principle of fair justice and fairness in the process of trial.
25. The parties to the lis are entitled to know what is happening in
respect of their matter pending in the Court and also their learned counsel.
The trial Judge cannot be expected to resort to such acts as are seen in the
present case behind the back of the parties or their learned counsel.
26. It is pertinent to note that it was not as though the notice dated
22.11.2013 and the postal acknowledgment now marked by substitution as
Ex.A3 and Ex.A4 by the learned trial Judge were not brought to the notice
of the concerned including the learned trial Judge, who recorded the
deposition of P.W.1 and D.W.1. The legal notice dated 22.11.2013
substituted Ex.A3 was produced along with the plaint and thus, it was
available as a part of the file. Its acknowledgment marked Ex.A4 by
substitution by the learned trial Judge was also available by then. In fact,
learned counsel for the appellant at the trial had taken a risk of inviting
the attention of P.W.1 to this postal acknowledgment and elicited
statements from him. These statements are in the nature of admission of
P.W.1 that this postal acknowledgment, in proof of service of Ex.A3 notice
available on record and that it was not marked. The attention of P.W.1
was so invited in cross-examination on behalf of the appellant twice on
07.03.2018. Even learned trial Judge was aware of this fact. Neither the
learned trial Judge applied herself to the cause then, verifying the
documents already marked nor learned counsel for the respondent,
responded to that situation. Therefore, when these facts are so staring,
recording such observations and substituting the exhibits at the time of
preparation of the judgment, is a condemnable practice. Apparently, the
appellants suffered any amount of prejudice on account of it.
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27. An attempt was made by the learned trial Judge in the judgment
relying on the statement of the appellant in cross-examination for the
respondent of service of this notice that he admitted. However, it cannot
be a reason to permit or allow the learned trial Judge to substitute such
documents, that too without affording opportunity to the parties to the
suit.
28. If at all learned trial Judge was so conscious and intended to put the
record straight, the best option would have been to reopen the matter
recording these reasons, giving an opportunity to both the parties to
explain such situation and further permitting to exhibit these two
documents, which were available in the file, if so desire, as additional
documents on behalf of the respondent and by permitting the appellant to
further cross-examine P.W.1 thereon. It would have certainly reflected a
fair procedure.
29. Though there is no reason to suspect the bona fides of the learned
trial Judge in the matter, the hasty part displayed by her in this process, is
making out a disturbing tendency, which shall not be encouraged. The
learned trial Judge shall have conception of her role in the process of
adjudicating the matter, as well as the trial process with its effect
thereon. It is possible that there would be some unexpressed intentions for
the judges and unknowingly, they would be driven by these circumstances.
Yet the predominant requirement is to see that the course of justice is not
affected.
30. Sri P.Ganga Rami Reddy, learned counsel for the appellant referring
to effect of production of documents in terms of Order VII and XIII CPC and
the manner of accepting the same provided in Rule 4 of Order XIII CPC
strenuously contended that this process of substitution of the documents is
a vitiating factor to affect the process of judging the issues in the matter
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and therefore, an opportunity has to be given to the appellant in this case
remanding for fresh determination to the trial Court.
31. Learned appellate Judge though conscious of the peculiar procedure
adopted and followed by learned trial Judge, tried to justify the same
relying on the effect of Section 167 of Indian Evidence Act, which directs
that in case of improper admission or rejection of evidence, there shall not
be new trial or reversal of any decision in the case.
32. This is not a case of either introduction of the exhibits in the course
of trial or their improper admission or rejection in the evidence at that
stage. There was no occasion to assume that this act of the learned trial
judge was in the course of the trial and while recording the depositions of
the parties. It is completely a different story, which learned appellate
Judge should have considered in proper perspective. There was no
justification for the learned appellate Judge to support this unwarranted
and undesirable action of the learned trial Judge. Learned appellate Judge
also relied on the admission of the appellant of receipt of notice of
determination of tenancy in an attempt to explain the situation.
33. However, no justification can substitute for the immense prejudice
suffered by the parties, more particularly, the appellant in the process.
34. Therefore, in order to give a decent quietus to this situation and
since the interests of justice demand a fair trial, whereby no party should
suffer, the matter is required to be remitted to the trial Court for
reconsideration, upon following the procedure as suggested above.
35. Since the decision relating to the second question of application of
Section 106 of Transfer of Property Act hinges upon the factor of
introduction of the documents as stated above, it is desirable not to record
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any finding now. It is better to keep open for the learned trial Judge, to
consider this question.
36. Learned counsel for the respondent Sri V.Siva Prasad Reddy,
strenuously contended that the appellant being the tenant has been
squatting on the property to the detriment of the Land Lord, without
regularly paying the rents inspite of directions of the Court. Learned
counsel further contended that in the circumstances having regard to the
concurrent findings recorded by both the Courts below, it is not necessary
that the matter be remitted to trial Court again.
37. Learned counsel for the respondent relied on APOLLO ZIPPER INDIA
LIMITED v. W.NEWMAN AND CO.LTD. 2 referring to the effect of notice
issued determining the tenancy and when no reply was issued to it. This
question is left open for consideration and determination by the trial
Court.
38. R.V.BHUPAL PRASAD v. STATE OF ANDHRA PRADESH AND OTHERS3
is also relied on by the learned counsel for the respondent. It is a case
relating to the position of a tenant at sufferance of the demised premises,
which is unlawful. This ruling is besides the point.
39. However, in view of the reasons assigned, it is but appropriate that
the trial Court shall take a fresh call on the question of application of
Section 106 of Transfer of Property Act after giving due opportunity to the
parties in this case.
40. In the result, this second appeal is allowed setting aside the decrees
and judgments of both the Courts below, subject to following directions:
AIR 2018 SC 2847
AIR 1996 SC 140
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1. The trial Court shall frame an issue as to whether there was a
notice under Section 106 of Transfer of Property Act issued by
the plaintiff to the defendant determining the tenancy and if so,
the effect thereon, vis a vis the parties to the suit. Thereupon,
the trial Court is directed to consider and determine issue No.1
afresh.
2. The trial Court is directed to permit both the parties to adduce
further evidence in the suit and evidence already recorded and
on record shall continue to remain as such. Ex.A3 and Ex.A4
marked at the time of preparing the judgment now impugned
dated 22.03.2019 stand de-exhibited. If parties desire they shall
be permitted to be exhibited afresh giving exhibit numbers on
continuation on behalf of the plaintiff and Ex.A3 and Ex.A4
already marked shall remain on record as such.
3. The costs in the first appeal and this appeal shall be subject to
result in the suit.
4. The trial Court is directed to dispose of the suit subject to COVID
situation, within three (03) months from the date of receipt of
copy of this judgment.
5. The registry is directed to return the records received from the
trial Court as well as the first appellate Court immediately.
6. Interim orders, if any, stand vacated. All pending petitions,
stand closed.
____________________
M. VENKATA RAMANA, J
Dt:22.06.2021
Rns
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HON'BLE SRI JUSTICE M. VENKATA RAMANA
S.A.No.130 of 2020
Date:22.06.2021
Rns
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