L.Nageswara Rao vs A.Srinivasa Rao
2021 Latest Caselaw 4045 AP

                                                                           MVR,J
                                                      S.As.Nos.416 and 453 of 2014
                                      1

        IN THE HIGH COURT OF ANDHRA PRADESH AT AMARAVATI

            HONOURABLE SRI JUSTICE M. VENKATA RAMANA

               SECOND APPEALs Nos.416 and 453 of 2014

Between:
L.Nageswara Rao, S/o.Subba Rao
                                                                ... APPELLANT

                                     AND

A.Srinivasa Rao, S/o.late Nageswara Rao

                                                             ... RESPONDENT

DATE OF JUDGMENT PRONOUNCED :20.10.2021

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.As.Nos.416 and 453 of 2014

*IN THE HIGH COURT OF ANDHRA PRADESH AT AMARAVATI

*HONOURABLE SRI JUSTICE M. VENKATA RAMANA

+ S.As.Nos.416 and 453 of 2014

% Dated : 20.10.2021 Between:

# L.Nageswara Rao ... APPELLANT AND

$ A.Srinivasa Rao ... RESPONDENT ! Counsel for appellant : Mr. S.Sreeramachandra Murthy

^Counsel for Respondent : Mr.Challa Ajay Kumar

<GIST :

>HEAD NOTE:

? Cases referred:

1. AIR 1958 AP 218

2. 2018(2) ALT 1

3. 2012(8) SCC 148

4. 1989(2) SCC 69

5. 2007(4) ALT 348(L.B.)

6. 2015(17) SCC 128 = 2015(4) ALD 155(SC)

____________________ M.VENKATA RAMANA, J MVR,J S.As.Nos.416 and 453 of 2014

HON'BLE SRI JUSTICE M. VENKATA RAMANA

SECOND APPEALs Nos.416 and 453 of 2014 COMMON JUDGMENT:

S.A.No.416 of 2014 is filed against the decree and judgment in

A.S.No.17 of 2013 on the file of the Court of learned XVI Additional

District Judge, Krishna, at Nandigama (earlier A.S.No.186 of 2011 on

the file of the Court of learned II Additional District Judge, Krishna at

Vijayawada) dated 03.04.2014. It was presented against the decree

and judgment in O.S.No.69 of 2009 on the file of the Court of learned

Senior Civil Judge, Nandigama, dated 07.04.2011.

2. The defendant is the appellant in S.A.No.416 of 2014 and

whereas the respondent was the plaintiff.

3. O.S.No.69 of 2009 was initially presented in O.S.No.509 of 2003

on the file of the Court of learned Junior Civil Judge, Nandigama for

eviction of the appellant from the plaint schedule property and for

recovery of arrears of rents. By virtue of orders in Tr.O.P.No.41 of

2009 dated 09.06.2009 on the file of the Court of learned District

Judge, Krishna, at Machilipatnam, it was transferred on to the file of

the Court of learned Senior Civil Judge, Nandigama, where it was

renumbered as O.S.No.69 of 2009.

4. S.A.No.453 of 2014 is presented against the decree and

judgment in A.S.No.19 of 2013 dated 03.04.2014 on the file of the

Court of learned XVI Additional District Judge, Krishna at

Nandigama(it was earlier A.S.No.220 of 2011 on the file of the Court

of learned II Additional District Judge, Krishna, at Vijayawada). It

was inturn presented against the decree and judgment in O.S.No.13 MVR,J S.As.Nos.416 and 453 of 2014

of 2006 dated 07.04.2011 on the file of the Court of learned Senior

Civil Judge, Nandigama. The defendant therein is the appellant and

the respondent in the above suit is the plaintiff in this second appeal.

It was a suit filed for specific performance of contract basing on an

agreement for sale dated 26.11.2002 executed by the respondent in

favour of the appellant in respect of the plaint schedule property.

5. Both the suits were decreed in favour of the respondent and

they were also confirmed in the appeals.

6. The plaint schedule property relating to both these suits is

"A house bearing Door No.18/121A and assessment No.2561 situated in Main road of Nandigam village and Mandal, Krishna District.

It shall be referred to hereinafter as 'the suit house'.

7. Since arguments are addressed in both these second appeals in

common at admission stage by the learned counsel appearing for the

parties, they are being disposed of by this common judgment.

8. In S.A.No.416 of 2014 relating to eviction suit, the case of the

respondent is that the appellant was tenant of the suit house since

the year 1998, on a monthly rent of Rs.1500/- under a oral tenancy.

It is further case of the respondent that the appellant paid rent up to

February 2003 and thereafter defaulted from March 2003. There was

exchange of notices between these parties and by the legal notice

dated 25.08.2003, the respondent terminated the tenancy of the

appellant demanding to handover peaceful and vacant possession of

the suit house as well as pay arrears of rent.

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

9. The appellant did not deny the tenancy. However, he

contended that the agreed rent was Rs.1000/- per month to be paid

on or before 5th of every succeeding month and that he had paid an

advance of Rs.20,000/-.

10. The appellant also contended that the respondent had agreed

to sell the suit house for Rs.3,61,000/- to him, received Rs.1,01,000/-

towards advance, and balance to be paid on or before 01.03.2003

under an agreement for sale dated 26.12.2002. He further contended

that in default of paying the balance amount within such stipulated

time, it was agreed that he should pay interest at 12% per annum. He

further contended that the respondent had agreed to deduct deposit

amount of Rs.20,000/- from the balance payable at the time of

entering this contract and therefore, his liability to pay balance sale

consideration stood at Rs.2,40,000/-.

11. It is further contention of the appellant that on 05.02.2003 he

approached the respondent offering balance sale consideration of

Rs.2,40,000/-, requesting to execute a regular sale deed and to

register. However, according to him, the respondent expressed his

inability on account of pending litigation between him and his wife

stating that his wife would bring a lot of pressure on him taking away

major part of the sale consideration. Thus, the respondent requested

him, according to the appellant to wait till the dispute between him

and his wife got settled.

12. The appellant did not deny the exchange of notices and

contended that he offered the balance sale consideration which

according to him being Rs.2,40,000/- by a demand draft to the MVR,J S.As.Nos.416 and 453 of 2014

respondent, which he sent through his reply notice dated 03.09.2003

to the legal notice dated 25.08.2003 issued by the respondent.

However, according to the appellant, the respondent returned this

demand draft requiring him to pay the balance sale consideration at

Rs.2,60,000/- along with interest at 12% per annum from 01.03.2003

and also rent from 01.03.2003.

13. It is further contention of the appellant that he expressed his

ready and willingness to perform his part of contract at all material

times and complained that the respondent did not cooperate with

him to perform his part of contract.

14. The appellant denied that there was valid termination of

tenancy by the notice dated 25.08.2003 and questioned the

maintainability of the suit.

15. In the suit for specific performance concerned to S.A.No.453 of

2014, the appellant had set out his case in terms with the defence set

up in the eviction suit referred to above demanding the respondent to

execute a regular sale deed and to register upon receiving balance

sale consideration and in the event of his failure, the appellant

requested the Court to execute a sale deed in his favour.

16. The respondent in his defence while refuting that the appellant

is entitled for relief of specific performance, referring to the alleged

default of the appellant in paying the balance sale consideration

along with interest as agreed upon, including the rents from March

2003, mainly contended that the appellant was never ready and MVR,J S.As.Nos.416 and 453 of 2014

willing to perform his part of contract under the agreement for sale

and thus, he is not entitled for the relief as requested.

17. In both the suits, the trial Court settled the following issues:

O.S.No.13 of 2006 (S.A.No.453 of 2014):

1. Whether the suit agreement of sale is still in force?

2. Whether the plaintiff is entitled to the specific performance of the suit agreement of sale?

3. If not whether the plaintiff is entitled to the alternative relief of refund of Rs.1,01,000/- with interest as prayed for?

4. To what relief?

O.S.No.69 of 2009 (S.A.No.416 of 2014):

1. Whether the plaintiff is entitled for eviction of the defendant from the schedule property and delivery of vacant possession thereof?

2. Whether the defendant paid the rent upto July 2003?

3. Whether the plaintiff is entitled to recover a sum of Rs.10,500/- with subsequent interest at the rate of 24% per annum towards rental due from the defendant in respect of the schedule property?

4. To what relief?

18. Trial was conducted in both the suits separately. In the

eviction suit, the respondent examined himself as P.W.1 and another

witness P.W.2 while relying on Ex.A1 to Ex.A6 in support of his

contention. The appellant in that suit examined himself as D.W.1 and

relied on Ex.B1 to Ex.B8 in support of his contention.

19. In specific performance suit, the appellant examined himself as

P.W.1, P.W.4 and P.W.5 being the attestors to the suit agreement for

sale and further examined P.W.2 and P.W.3 in support of his

contention, while relying on Ex.A1 to Ex.A8. The respondent MVR,J S.As.Nos.416 and 453 of 2014

examined himself as D.W.1 in that suit, who relied on Ex.B1 to Ex.B4

in support of his contention.

20. In S.A.No.416 of 2014 substantial questions of law are stated in

the memorandum of appeal. In S.A.No.453 of 2014 similarly

substantial questions of law are stated in the memorandum of appeal.

21. A separate memo setting out substantial questions of law is

filed on behalf of the appellant in S.A.No.416 of 2014.

22. All these substantial questions of law as claimed by the

appellant, relate to the procedure followed by the trial Court holding

trial separately in both the suits contending that it is against the

directions of learned District Judge, Krishna, at Machilipatnam as per

orders dated 09.06.2009 in Tr.O.P.No.41 of 2009.

23. Another question sought to be raised in respect of additional

evidence permitted by the appellate Court under Order XLI Rule 27

CPC and also in considering the question of jurisdiction of the civil

Court to entertain a suit for eviction, claiming that the agreed and

proved rent for the suit house stood at Rs.1000/- whereby an action

for eviction could be tried only by a Rent Controller under

A.P.Buildings (Lease, Rent and Eviction) Control Act.

24. Another question sought to be raised is with reference to

validity of the notice dated 25.08.2003 terminating the tenancy in

terms of Sections 106 and 111 of Transfer of Property Act.

25. These are all the questions required to consider and determine

in these second appeals and if, in the given facts and circumstances

form the basis to apply Section 100 CPC.

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

26. The factual matrix in these two appeals is based on admitted

situation. The respondent is the owner of the suit house. The

appellant was his tenant under a oral tenancy on a monthly rent to be

paid in the succeeding month.

27. An agreement for sale was entered into between the appellant

and the respondent on 26.12.2002 admittedly, whereby the

respondent had agreed to sell the suit house for a total consideration

of Rs.3,61,000/-. An advance of Rs.1,01,000/- was paid by the

appellant to the respondent there under. One of the terms of this

contract included payment of balance consideration of Rs.2,60,000/-

on or before 01.03.2003 and in default, the appellant should pay an

interest at 12% per annum till the terms under this agreement are

completely performed.

28. It was also agreed in between these parties that the appellant

should pay rent every month and that he defaulted in doing so from

March 2003. Thus, he fell in arrears.

29. The respondent got issued a legal notice dated 25.08.2003

referring to terms of this agreement and alleged default in

performing his part of contract. He also stated in this notice that the

appellant defaulted to pay the rents from March 2003 and finally

stated that the tenancy of the appellant stood terminated (this legal

notice is Ex.A1 in O.S.No.69 of 2009 and Ex.A2 in O.S.No.13 of 2009).

30. A reply dated 06.09.2003 was issued on behalf of the appellant

(Ex.A3 in O.S.No.13 of 2009) enclosing Ex.A4 pay order dated

06.09.2003 for Rs.2,40,000/- on behalf of the appellant stating that MVR,J S.As.Nos.416 and 453 of 2014

Rs.20,000/- paid towards advance for the tenancy was deducted out

of the balance sale consideration. A cheque for Rs.1,000/-(original of

Ex.A5) dated 08.09.2003 was also sent to the respondent claiming

being the agreed rent, which the appellant had returned.

31. Further notices dated 08.09.2003, 27.09.2004 and 14.10.2004

are referred to by the parties. In reply notice dated 14.10.2004, the

respondent reiterated his stand in relation to tenancy as well as the

agreement for sale as to termination of tenancy and demanding

performance of the terms of the contract under the agreement for

sale dated 26.10.2002. Further demand was made to pay the arrears

of rent at Rs.1500/- per month by this reply notice.

32. Basing on the evidence and material, learned trial Judge

accepted the claim of the respondent in both the suits, that there

was valid termination of tenancy in terms of legal notice dated

25.08.2003 requiring eviction of the appellant from the suit house and

that the appellant defaulted to abide by the terms of the contract,

who failed to establish that he was always ready and willing to

perform his part of contract in terms of Section 16(c) of the Specific

Relief Act.

33. Learned appellate Judge agreed with these findings of the trial

Court on reappraisal of the material and confirmed the decrees and

judgments of the trial Court in both the suits.

34. Sri S.Sreeramachandra Murthy, learned counsel for the

appellant in both these appeals mainly contended that the very

process of going on with trial separately in both these suits is against MVR,J S.As.Nos.416 and 453 of 2014

the order in Transfer O.P.No.41 of 2009 of the District Court, Krishna

at Machilipatnam and this procedure without conducting a common

and join trial in both the suits resulted in serious prejudice to the

appellant in setting out his case.

35. A reference is also made by Sri Sreeramachandra Murthy,

learned counsel for the appellant, of the order of transfer of the suit,

of the District Court, referred to supra.

36. This order of transfer did not specifically direct consolidation

of both these suits, which learned District Judge would not have

possibly done, in terms of Section 24 CPC. All that was required was

to try both these suits, by the Court of learned Senior Civil Judge,

Nandigama.

37. It is pertinent to note that both the parties did not request the

trial Court for consolidation of the suits, making out a cause of

convenience and possible prejudice the parties would suffer in the

event such consolidation is not directed. Both the parties went on

with the trial knowing full well the consequences and invited the

decision from the trial Court in both these suits separately. Further

pertinent to note that both these suits were disposed of albeit by

separate judgments by the trial Court on 07.04.2011. The manner of

disposal in these facts and circumstances by the trial Court is in

accordance with the directions of the District Court while transferring

the suit for eviction to the Court of learned Senior Civil Judge,

Nandigama.

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

38. A cause, which was not adverted to or canvassed at the stage

of trial, cannot be made out being of substantial importance in the

second appeal.

39. Sri Challa Ajay Kumar, learned counsel for the respondent

referring to these facts and circumstances contended that there is no

procedural infraction, due to trial of both the suits separately and

even otherwise relying on DRONAVAJJULA VIDYAMBA v.

VALLABHAJOSYULA LAKSHMI VENKAYAMMA1a judgment of Division

Bench of the then High Court of A.P. at Hyderabad, further

contended that any violation or contravention of order of transfer

under Section 24 CPC and separate trial of transferred suit did not

render the proceedings invalid. This ruling was later followed by one

of the learned Judges of this Court in SMT.G.B.PRASANNA v.

SMT.M.D.VEDANAYAKI(DIED) AND ANOTHER2.

40. Having regard to facts and circumstances of this case and the

law stated above, the contention of Sri Sreeramachandra Murthy,

learned counsel for the appellant cannot stand. No prejudice as such

is suffered by both the parties, much less the appellant in this

process. This question did not fall within the purview of Section 100

CPC nor has the status of substantial question of law.

41. Sri Sreeramachandra Murthy, learned counsel for the appellant

further contended that both the Courts below accepted the rent for

the suit house being Rs.1000/- per month and therefore, in view of

G.O.Ms.No.636 dated 26.10.1983, which came into effect from

AIR 1958 AP 218

2018(2) ALT 1 MVR,J S.As.Nos.416 and 453 of 2014

02.01.1984, the civil Court has no jurisdiction to direct eviction of the

appellant and it is only the Court of learned Rent Controller in terms

of A.P.Buildings (Lease, Rent and Eviction) Control Act, the landlord

could seek eviction of the appellant under Section 10 thereunder.

42. In this respect, Sri Sreeramachandra Murthy, learned counsel

for the appellant further contended that the appellate Court went

wrong in considering such plea in the appeal upon permitting the

respondent to lead additional evidence at that stage, ordering

I.As.111 and 112 of 2013. Thus, permitting the respondent to lead

further evidence on the question of jurisdiction of civil Court to

entertain a suit for eviction is seriously assailed. This according to

learned counsel for the appellant is highly irregular, which is

impermissible in law amounting to abuse of Order XLI Rule 27 CPC.

43. In support of his contention, Sri Sreeramachandra Murthy,

learned counsel for the appellant relied on a judgment of Hon'ble

Supreme Court in UNION OF INDIA v. IBRAHIMUDDIN AND

ANOTHER3referring to application of Order XLI Rule 27 CPC and as to

when reception of additional evidence in an appeal be permitted,

only upon consideration of the material placed before the trial Court.

In paras 47 to 52 of this ruling, it is stated as under:

47. Section 100 CPC provides for a second appeal only on the substantial question of law. Generally, a Second Appeal does not lie on question of facts or of law.

48. In State Bank of India & Ors. v. S.N. Goyal, AIR 2008 SC 2594, this Court explained the terms "substantial question of law" and observed as under :

2012(8) SCC 148 MVR,J S.As.Nos.416 and 453 of 2014

"The word 'substantial' prefixed to 'question of law' does not refer to the stakes involved in the case, nor intended to refer only to questions of law of general importance, but refers to impact or effect of the question of law on the decision in the lis between the parties. 'Substantial questions of law' means not only substantial questions of law of general importance, but also substantial question of law arising in a case as between the parties. ........... any question of law which affects the final decision in a case is a substantial question of law as between the parties. A question of law which arises incidentally or collaterally, having no bearing on the final outcome, will not be a substantial question of law. There cannot, therefore, be a straitjacket definition as to when a substantial question of law arises in a case." (Emphasis added) Similarly, in Sir Chunilal V. Mehta & Sons Ltd. v. Century Spinning and Manufacturing Co. Ltd., AIR 1962 SC 1314, this Court for the purpose of determining the issue held:-

"The proper test for determining whether a question of law raises in the case is substantial, would, in our opinion, be whether it is of general public importance or whether it directly and substantially affects the rights of the parties....." (Emphasis added)

49. In Vijay Kumar Talwar v. Commissioner of Income Tax, New Delhi, (2011) 1 SCC 673, this Court held that, a point of law which admits of no two opinions may be a proposition of law but cannot be a substantial question of law. To be 'substantial' a question of law must be debatable, not previously settled by law of the land or a binding precedent, and must have a material on the decision of the case, if answered either way, insofar as the rights of the parties before it are concerned. To be a question of law 'involving in the case' there must be first a foundation for it laid in the pleadings and the question should emerge from the sustainable findings of fact arrived at by court of facts and it must be necessary to decide that question of law for a just and proper decision of the case. It will, therefore, depend on the facts and circumstance of each case, whether a question of law is a substantial one or not; the paramount overall consideration being the need for striking a judicious balance between the indispensable obligation to do justice at all stages and impelling necessity of avoiding prolongation in the life of any lis."

(See also: Rajeshwari v. Puran Indoria, (2005) 7 SCC 60).

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

50. The Court, for the reasons to be recorded, may also entertain a second appeal even on any other substantial question of law, not formulated by it, if the Court is satisfied that the case involves such a question. Therefore, the existence of a substantial question of law is a sine-qua-non for the exercise of jurisdiction under the provisions of Section 100 CPC. The second appeal does not lie on the ground of erroneous findings of facts based on appreciation of the relevant evidence.

There may be a question, which may be a "question of fact", "question of law", "mixed question of fact and law" and "substantial question of law." Question means anything inquired; an issue to be decided. The "question of fact" is whether a particular factual situation exists or not. A question of fact, in the Realm of Jurisprudence, has been explained as under:-

"A question of fact is one capable of being answered by way of demonstration. A question of opinion is one that cannot be so answered. An answer to it is a matter of speculation which cannot be proved by any available evidence to be right or wrong." (Vide: Salmond, on Jurisprudence, 12th Edn. page 69, cited in Gadakh Yashwantrao Kankarrao v. E.V. alias Balasaheb Vikhe Patil & ors., AIR 1994 SC 678).

51. In Smt. Bibhabati Devi v. Ramendra Narayan Roy & Ors., AIR 1947 PC 19, the Privy Council has provided the guidelines as in what cases the second appeal can be entertained, explaining the provisions existing prior to the amendment of 1976, observing as under:-

"..... that miscarriage of justice means such a departure from the rules which permeate all judicial procedure as to make that which happen not in the proper sense of the word 'judicial procedure' at all. That the violation of some principles of law or procedure must be such erroneous proposition of law that if that proposition to be corrected, the finding cannot stand, or it may be the neglect of some principle of law or procedure, whose application will have the same effect. The question whether there is evidence on which the Courts could arrive at their finding, is such a question of law.

'That the question of admissibility of evidence is a proposition of law but it must be such as to affect materially the finding. The MVR,J S.As.Nos.416 and 453 of 2014

question of the value of evidence is not sufficient reason for departure from the practice......"

52. In Suwalal Chhogalal v. Commissioner of Income Tax, (1949) 17 ITR 269, this Court held as under:-

"A fact is a fact irrespective of evidence, by which it is proved. The only time a question of law can arise in such a case is when it is alleged that there is no material on which the conclusion can be based or no sufficient evidence."

44. In the event of reception of additional evidence prior to

hearing the appeal, it has to be ignored, is stressed upon by learned

counsel for the appellant.

45. Sri Challa Ajay Kumar, learned counsel for the respondent

sought to repel the contention of the learned counsel for the

appellant, referring to the circumstances under which learned

appellate Judge permitted additional evidence to be let-in. Inviting

attention of this Court to para-21 of the judgment of the appellate

Court in A.S.No.17 of 2013, learned counsel for the respondent

further contended that this question raised of, ouster or want of

jurisdiction of civil Court to entertain a dispute of this nature was

never a part of the defence of the appellant either in the written

statement or at the trial nor any issue was cast, for this purpose.

46. When the question of jurisdiction was raised for the first time

in the appeal, learned counsel for the respondent contended that

learned appellate Judge recorded right reasons in permitting to lead

additional evidence. Even otherwise, objection relating to

jurisdiction when not raised at the earliest point of time in the course

of trial, in terms of Section 21(1) CPC, it is further contended that

the appellate Court cannot permit such objection to be taken.

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

Raising such question for the first time in the appeal under Section 96

CPC without foundation at the trial was sought to be cured by the

procedure followed by the learned appellate Judge, according to the

learned counsel for the respondent.

47. It is true, it was never the defence of the appellant either in

the written statement or at the trial that the civil Court did not have

jurisdiction to try his eviction case and that it is only the Court of

learned Rent Controller, who has jurisdiction for this purpose.

48. As seen from the judgment in the appeal in A.S.No.17 of 2013,

considering that such an objection was raised for the first time in the

appeal as one of the grounds, learned appellate Judge thought it fit

to consider such question and for such purpose, when applications in

I.A.Nos.111 and 112 of 2013 were filed under Section XLI Rule 27 CPC

for reception of additional evidence, they were allowed. The orders

passed in those applications became final. The appellant did not

choose to question or challenge them by means of a revision petition,

to this Court. Thus, the appellant submitted himself to the

jurisdiction of the appellate Court in that process.

49. The documents sought to be adduced in additional evidence, to

a major part, were available in the records of the trial Court and only

the sanction plan, approved by the Gram Panchayat, Nandigama

relating to the suit house was an additional document produced at

that stage.

50. When the respondent was examined as P.W.1 in the appeal

pursuant to the orders in those two applications dated 29.01.2014, MVR,J S.As.Nos.416 and 453 of 2014

this witness was not subjected to any cross-examination. In para-21

of the judgment in the appeal, it is specifically stated that on behalf

of the appellant, no cross-examination of this witness was reported.

Thus, at that stage, the procedure so followed was not in question.

The appellant remained a conscious observer and who willingly

participated in such proceedings. Therefore, he cannot make out a

reason on this score as if there has been serious infraction of

procedure.

51. In the above ruling of Hon'ble Supreme Court, the effect of

Order XLI Rule 27(1)(b) CPC was considered in recording such

observations. It was not an instance with reference to application of

Order XLI Rule 27(1)(aa) CPC. This clause gets attracted in those

cases, where the party seeking to produce additional evidence

establishes that inspite of exercise of his due diligence and his best

efforts, such evidence was not within his knowledge or he could not

produce such evidence in the trial Court. In respect of application of

this clause, the appellate Court is expected to enquire for limited

purpose whether the party who is making such application had

exercised required due diligence and despite it, he could not come to

know of such evidence and which he could not produce during trial.

52. The circumstances in the present case need consideration to

know if the respondent has met the requirements in terms of Order

XLI Rule 27(1)(aa)CPC.

53. Necessity for the respondent to adduce additional evidence was

on account of a ground urged on behalf of the appellant in the appeal

questioning the jurisdiction of the civil Court to maintain the suit for MVR,J S.As.Nos.416 and 453 of 2014

eviction against him. Obviously, this ground is based on a finding

recorded by the learned trial Judge that the rent for the suit house

was only Rs.1000/- per month and therefore, the suit stood within the

purview of G.O.Ms.No.636 dated 26.10.1983 issued under Section 26

of A.P.Buildings (Lease, Rent and Eviction) Control Act.

54. It was a new introduction at the appellate stage without any

foundation laid by the appellant in pleadings as well as evidence.

Therefore, it was a compelling need for the respondent to meet this

situation.

55. These circumstances surrounding this situation are within the

purview of Order XLI Rule 27(1)(aa) CPC since requirement to lead

such evidence was not to the knowledge of the respondent at the

trial stage.

56. In fact, the reasons that impelled learned appellate Judge to

pass such an order, can be gathered from the observations in para -

21 of the appellate Court judgment. It is desirable to extract the

same for convenience hereunder:

"When the rent for the schedule property is only Rs.1,000/-, a genuine doubt will arise whether the Civil Court is having jurisdiction or Rent Controller Court. In the trial Court the defendant had not taken any plea that the Civil Court had no jurisdiction to entertain the suit for eviction, but it is only a Rent Controller Court. But, surprisingly before this Court at the stage of appeal he had taken such a plea. The plaintiff filed an application in I.A.No.112 of 2013 and another application in I.A.No.111 of 2013 before this Court to recall P.W.1 and receive the documents, the same were allowed by passing a common order, because that is very crucial to decide whether the Civil Court is having jurisdiction or the Rent Controller. Naturally, as it is a settled law that no MVR,J S.As.Nos.416 and 453 of 2014

party should be allowed to take plea which he had not taken at the earliest point of time better before the trial Court to take a plea but not at the stage of appeal. Tomorrow ultimately if the plaintiff succeeds the suit and files any execution petition, it would be open for the defendant to raise objection at the stage of execution about lacking inherent jurisdiction of the Court, which passed the decree. In other words suppose if the Civil Court has no jurisdiction to entertain the suit and it is only a Rent Controller, the defendant can take plea of lack of inherent jurisdiction to the civil Court. To overcome the same, the petitions were allowed. To get a clear case of both parties the petitions are allowed. P.W.1 was recalled. He filed Ex.A7 building approval plan. The defendant reported no cross-examination."

57. Therefore, no abnormality or unusual feature is seen in

following such procedure by the learned appellate Judge. Hence, the

ruling of Hon'ble Supreme Court relied on by the learned counsel for

the appellant did not cover the situation, which is seen in this case on

hand. Therefore, there is no reason or necessity to reject additional

evidence so adduced at the appellate stage. Thus, this proposed

substantial question of law basing on alleged infraction of Order XLI

Rule 21 CPC did not exist. The appellant is trying to make out a

cause taking advantage of his own wrong or serious deficiency in

conducting the case at the trial stage.

58. It is also pertinent to state at this juncture that learned trial

Judge was not right in considering the rent at Rs.1,000/-, as if

admitted. A careful consideration of the judgment of the trial Court

reflected that an application was filed requiring the appellant to

deposit rent, which he claimed at Rs.1000/- per month though the

contention of the respondent was Rs.1500/- per month. The claim of

the respondent that rent being Rs.1500/- was consistent which he had MVR,J S.As.Nos.416 and 453 of 2014

raised in his legal notices, in the plaint as well as in his deposition at

the trial. The appellant did not bring out any material to contradict

such stand of the respondent.

59. Learned trial Judge relied on such circumstance of deposit of

Rs.1000/- per month as per orders in I.A.No.783 of 2012. What all

directed by this order was to deposit such rent claimed by the

appellant payable for the suit house and it remained a disputed fact.

Withdrawal of the amount so deposited was also considered as a

circumstance to support an inference that the rent remained at

Rs.1000/- per month and not Rs.1500/-. These reasons assigned by

the learned trial Judge are apparently on misreading of the material

and improper understanding of the facts and situation leading to

deposit of Rs.1000/- per month by the appellant.

60. Learned appellate Judge did not discuss more on this aspect

obviously hindered by the reason, for want of challenge of this finding

before him either by means of cross-objections or cross-appeal.

Hence, there is only a passing reference in the judgment in the

appeal in this respect without much of discussion. The difficulty

faced by learned appellate Judge in these circumstances is

understandable. When the respondent himself did not choose to

question such findings basing on which quantum of arrears was also

arrived at by the trial Court passing a decree to that extent, failure

to offer appropriate assistance on the part of the respondent to the

appellate Court, at that stage is definitely a cause for concern.

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

61. Thus, this situation is more based on fact nor can be stated

being a substantial question of law as sought to be made out by

learned counsel for the appellant.

62. Sri Sreeramachandra Murthy, learned counsel for the appellant

further contended that the relationship in between these parties as

tenant and landlord was not appreciated properly by both the Courts

below and learned appellate Judge went on mechanically in this

context. In support of such contention, reliance is placed by learned

counsel for the appellant in PRABHA MANUFACTURING INDUSTRIAL

COOPERATIVE SOCIETY v. BANVARILAL4. The judgment of the

appellate Court has considered this question properly and basing on

fact situation recorded appropriate findings. Therefore, this question

also did not remain a substantial question of law.

63. Sri Sreeramachandra Murthy, learned counsel for the appellant

further contended that learned appellate Judge went wrong in

holding that the suit house falls within exception under

G.O.Ms.No.636 dated 29.12.1983 and having regard to the judgment

of larger bench of this Court in RAMVILAS BAJAJ AND OTHERS v.

ASHOK KUMAR AND OTHERS5 that was considered by Hon'ble

Supreme Court later in NOORUNNISSA BEGUM v. BRIJ KISHORE

SANGHI6.

64. Learned appellate Judge considered that this suit house was

constructed upon obtaining permission from the Gram Panchayat in

February 1985. Considering that the suit was filed on 15.10.2003,

1989(2) SCC 69

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

2015(17) SCC 128 = 2015(4) ALD 155(SC) MVR,J S.As.Nos.416 and 453 of 2014

learned appellate Judge observed that the construction of the

building was within 10 years period, under G.O.Ms.No.636 and

therefore, the Rent Controller did not have jurisdiction and

institution of the suit in Civil Court is proper. Larger bench of this

Court in the ruling referred to application of these provisions of Rent

Control Act as well as the effect of amendment brought out to this

Act in the year 2005. Majority opinion in this larger bench judgment

held that application of this amendment is prospective particularly

having regard to the effect given by this amendment to Section 32 of

A.P.Buildings (Lease, Rent and Eviction) Control Act. Minority opinion

is expressed by Sri Justice Ramesh Ranganathan in this decision.

65. In para - 67 of this part of this ruling, conclusion drawn by the

majority that Section 32-C of A.P.Buildings (Lease, Rent and Eviction)

Control Act, as brought into force by Section 3 of amendment Act of

2005 is prospective in operation and that it did not affect the

proceedings pending as on the date when it came into force, before

Civil Courts or appellate, revisional or executing Courts. Thus, it was

held that these cases were required to be decided without reference

to and application of the provisions of the amendment Act.

66. 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."

67. Applying this ruling of Hon'ble Supreme Court to the fact

situation obtaining now in this case, it is manifest that the finding

recorded by learned appellate Judge that the suit house is not

governed by A.P.Buildings (Lease, Rent and Eviction) Control Act, on

account of its date of construction, is proper. Observations of

Hon'ble Supreme Court in this context holding that Section 32(b)

being retrospective in operation, comes to the aid of the respondent

in as much as even by the amended Act, the buildings which

constructed or substantially renovated for a period of 15 years from

the date of completion of such construction or substantial renovation MVR,J S.As.Nos.416 and 453 of 2014

did not remain within the meaning of Section 2(9) of A.P.Buildings

(Lease, Rent and Eviction) Control Act. Thus, the tenancy of the suit

house lost protection under this Rent Control Act in view of amended

Section 32(b).

68. Therefore, even this substantial question of law sought to be

raised on behalf the appellant did not exist for consideration and

learned appellate Judge had drawn right conclusions basing on

material before him.

69. There is consistent claim of the respondent terminating the

tenancy by issuing appropriate quit notices including the first one

dated 25.08.2003. No circumstances are made out to invalidate this

notice and that it is not in accordance with Section 106 and Section

111 of Transfer of Property Act.

70. Therefore, all the substantial questions stated to be of law

sought to be raised relating to this eviction suit on behalf of the

appellant, did not exist. This Court is satisfied that it is not an

instance calling for application of Section 100 CPC. The entire case is

more governed by fact situation. Hence, this second appeal has no

merit and has to be dismissed.

71. In respect of the claim for specific performance of the

appellant basing on agreement for sale dated 26.12.2002 (Ex.A1) in

O.S.No.13 of 2006, the predominant consideration is ready and

willingness on the part of the appellant to perform his part of

contract and in such circumstances, discretion exercised by the trial MVR,J S.As.Nos.416 and 453 of 2014

Court, reconsidered by the appellate Court, needs no interference.

Admitted facts have already referred to supra in this context.

72. The documentary proof itself reflected that the appellant did

not pay the balance sale consideration of Rs.2,60,000/- as stipulated

before the time fixed for performance under this contract, viz.

01.03.2003. He also failed to pay interest at 12% per annum from

01.03.2003 even though he tendered Ex.A4 pay order for

Rs.2,40,000/- on 06.09.2003 to the respondent.

73. The contention of the appellant that advance of Rs.20,000/-

paid towards his tenancy was disbelieved by both the Courts and it is

being a question of fact when such a finding was returned in the first

appeal, this Court cannot lightly interfere in this second appeal.

Learned appellate Judge infact took into consideration the testimony

of P.W.2 and P.W.3 as well as P.W.4 and P.W.5, who are the attestors

of Ex.A1 in this context. On reappraisal of such evidence, learned

appellate Judge held that their testimony did not reflect that

Rs.20,000/- was considered as an advance received by the respondent

from the appellant.

74. The terms of Ex.A1 and calling upon the appellant to perform

his part of contract thereunder are clearly stated in the first notice

issued on behalf of the respondent on 25.08.2003 that was reiterated

by his later reply notices dated 08.09.2003 and 14.10.2004. The

stand of the respondent was obviously clear and was abiding by the

terms of the contract under the agreement for sale. He was prepared

to execute a sale deed and register it subject to the appellant's

performing his part of contract. The conduct of the appellant did not MVR,J S.As.Nos.416 and 453 of 2014

reflect as was considered by both the Courts below that he was

always ready and willing to perform his part of contract at all

material times. Thus, a clear infraction of Section 3 of Specific Relief

Act was observed by both the Courts below.

75. In the backdrop of this fact situation, when the refund of

advance of Rs.1,01,000/- was directed instead of ordering specific

performance of contract under the agreement for sale dated

26.12.2002, in exercise of discretion, this Court in second appeal

cannot interfere.

76. Therefore, this Court is satisfied considering the material and

claims of both the parties in both these second appeals that there are

no substantial questions of law requiring determination upon their

admission. Therefore, these two appeals should fail.

77. In the result, S.A.No.416 of 2014 is dismissed and without costs

and S.A.No.453 of 2014 is dismissed and without costs. The decrees

and judgments of both the Courts below stand confirmed. The

appellant is granted time to vacate the suit house on or before

01.01.2022. Otherwise, the respondent is at liberty to approach the

trial Court by means of an execution petition to get the appellant

evicted, if so advised.

___________________ M. VENKATA RAMANA, J Dt: 20.10.2021 Rns MVR,J S.As.Nos.416 and 453 of 2014

HON'BLE SRI JUSTICE M. VENKATA RAMANA

SECOND APPEALs Nos.416 and 453 OF 2014

Date:20.10.2021

Rns