M/S. Mobile And Movie World, vs Sri Ghulam Abbas Khurasani,
2022 Latest Caselaw 1786 AP

      THE HON'BLE SRI JUSTICE SUBBA REDDY SATTI

               SECOND APPEAL No.204 of 2021

JUDGMENT:

The above second appeal is filed by the defendant in the

suit, aggrieved by the judgment and decree dated 18.03.2021 in

A.S.No.145 of 2019 on the file of the Special Sessions Judge for

SC and ST Cases-cum-XI Additional District and Sessions

Judge, Visakhapatnam, confirming the judgment and decree

dated 21.02.2019 in O.S.No.1090 of 2015 on the file of II

Additional Junior Civil Judge, Visakhapatnam.

2. For the sake of convenience, the parties herein are

referred to as they were arrayed in the plaint.

3. Plaintiff filed suit O.S.No.1090 of 2015 seeking eviction of

the defendant and for delivery of vacant possession of the

schedule property; to pay arrears of rent of Rs.74,550/- and for

future damages etc.

4. In the plaint it was contended interalia that the plaintiff is

the absolute owner of the shop in the ground floor bearing Door

No.9-14-12/4 in VIP Road, CBM Compound, Visakhapatnam;

that defendant was inducted into schedule premises as tenant

on 10.09.2006 on a monthly rent of Rs.5,325/- payable on or

before first of every succeeding month; that the tenancy is

month to month; that defendant is running a mobile, music and

movie store under the name and style of M/s Mobile and Movie

World; that defendant committed default in payment of rents

from August, 2014 till filing of suit; that defendant filed suit

O.S.No.129 of 2015 against the plaintiff seeking permanent

injunction; that in spite of requests made by the plaintiff,

defendant failed to pay the rents; that the plaintiff got issued a

quit notice dated 02.10.2015 and terminated the tenancy and

further directed the defendant to vacate the premises by

10.11.2015 and also to pay arrears of rents; that defendant

having received the said notice, neither vacated the premises

nor paid the arrears of rents and hence, filed the suit.

5. Defendant filed written statement and admitted tenancy,

however, contended that monthly rent is Rs.3,000/-. He further

contended that an advance amount of Rs.70,000/- was paid,

which is refundable; that the rent is being enhanced from time

to time and the rent at the time of filing of written statement is

Rs.5,325/-; that he paid rents upto November, 2014 and later

filed suit O.S.No.129 of 2015 seeking permanent injunction,

wherein I.A.No.212 of 2015 was filed; that the rents are being

deposited from November, 2014 till January, 2016 in the suit

and thus, prayed the Court to dismiss the suit.

6. During the Trial, plaintiff examined himself as P.W.1 and

got marked Exs.A-1 to A-3. On behalf of defendant, the

proprietor of defendant was examined as D.W.1 and Ex.B-1 was

marked.

7. The trial Court on consideration of oral and documentary

evidence, decreed the suit by judgment dated 21.02.2019 and

directed the defendant to vacate and deliver vacant possession

of the plaint schedule property within two months from the date

of judgment. Trial Court further held that the plaintiff is at

liberty to file separate application claiming future damages.

8. Against the said judgment and decree, the appellant

herein (defendant), filed A.S.No.145 of 2019. The Lower

Appellate Court being final factfinding Court on consideration of

oral and documentary evidence, by framing necessary points for

consideration, dismissed the appeal with costs on 18.03.2021.

The lower Appellate Court directed the appellant to vacate the

schedule premises and handover vacant possession to the

plaintiff within a month. Aggrieved by the said judgment and

decree, the present second appeal is filed.

9. Heard Sri S.V.S.S.Siva Ram, learned counsel appearing for

appellant and Sri V.V.Ravi Prasad, learned counsel appearing

for the respondent.

10. Learned counsel for appellant contended that rents have

been regularly paid to the landlord and the appellant did not

commit any default. When the landlord tried to dispossess the

appellant forcibly, appellant was constrained to file suit for

injunction O.S.No.129 of 2015 and, in fact, have been

depositing rents in that suit. He also would contend that the

notice issued under Section 106 of the Transfer of Property Act,

1882 (for short "TP Act") is not valid notice and finally he also

contended that the respondent is not owner of the schedule

property.

11. Learned counsel for the respondent supported the

judgements and decrees of the Court and contended that no

substantial questions of law arise for consideration in the

second appeal and prayed the Court to dismiss the appeal.

12. The following are the substantial questions of law arise for

consideration in the appeal:

1) Whether landlord and tenant relationship exist between respondent and appellant herein?

2) Whether the notice issued under Section 106 of TP Act is valid?

13. Undisputed facts, as per the pleadings and evidence, are

that appellant took shop on lease from respondent and paid

Rs.75,000/- at inception. Appellant paid rents to the respondent

till September, 2018. Appellant filed suit O.S.No.129 of 2015

against the respondent herein for injunction and filed I.A.No.212

of 2015. Appellant also deposited rents in I.A.No.212 of 2015.

Landlord issued notice Ex.A-2 dated 02.10.2015 under Section

106 of TP Act and terminated the lease with effect from

10.11.2015. No reply was issued by the appellant to the quit

notice Ex.A-2.

14. Trial Court after framing necessary issued recorded

findings that jural relationship of tenant and landlord exists

between appellant and tenant; that appellant fell in arrears of

rent; that the tenancy is month to month; that tenancy is validly

terminated by issuing notice Ex.A-2. Trial Court also recorded

finding that appellant paid rents till September 2018; that

landlord is not entitled to arrears of rent of Rs.74,550/- and the

Rs.10,000/- claimed by landlord towards damages for use and

occupation be adjusted from Rs.75,000/- advance amount.

With regard to claim of future damages, it was held that

landlord may file separate petition.

15. Against the said judgment and decree, appellant herein

filed A.S.No.145 of 2019. Lower Appellate Court being the final

factfinding Court discussed oral and documentary evidence and

dismissed the appeal by judgement and decree dated

18.03.2021.

16. Though it was argued by the learned counsel for the

appellant that there is no landlord and tenant relationship, he

failed to prove the same. Apart from that being D.W.1, appellant

herein admitted about taking lease of shop from the

respondent/plaintiff and paying advance amount of Rs.75,000/-

. Appellant/Tenant having entered into premises pursuant to

the oral lease, cannot deny the jural relationship. In Mohd.

Saber Vs Rafiunnisa Begam (died) and others1, it was held

that "lessee cannot deny the title of lessor/landlord". The finding

of fact recorded by Courts below is basing on evidence.

17. The learned counsel for the appellant further contended

that notice issued under Section 106 of TP Act is not valid in

law. As noted supra, lease entered into between appellant and

2016(4) ALD 308

respondent is oral and month to month. Landlord by issuing

one month notice under Ex.A-2, mandated under Section 106(1)

of TP Act, determined the lease. Though it was argued that

notice issued under Sec 106 TP Act is not valid, nothing was

made out in that regard. Hence, the ground urged by the

learned counsel for the appellant that notice issued under Ex.A-

2 is not valid falls to ground.

18. Mere payment of advance amount at the time of entering

into lease would not inure to the benefit of tenant. Tenant at the

most is entitled to recover the amount. In Chittajallu Srinivasa

Rao Vs Narmada Joshi2, it was held that "even if payment of

advance is proved, lessee would at the most be entitled to

recover it, but cannot plead that lease stands extended for

corresponding period".

19. The second appeal was listed on 31.03.2022 for

admission. Learned counsel for appellant argued appeal for

admission and later sought time for filing affidavit of the

appellant to vacate the schedule premises. Accordingly, the

appeal is adjourned to 07.04.2022. Affidavit, duly sworn by the

appellant, was filed vide USR No.18174 of 2022. A perusal of

the affidavit indicates that the appellant stopped paying rents to

respondent from September, 2021; that the appellant has been

running business in the schedule premises from the last 16

years; that because of Covid-19 pandemic, minuscule business

2017 (5) ALT 767

activity is going on and hence, sought time to vacate the

schedule premises till 01.04.2023.

20. Learned counsel for the landlord opposed the request

made on behalf of tenant to grant time till 01.04.2023 and also

submitted that the another tenant in the neighbouring shop in

the same complex is paying monthly rent of Rs.35,000/- and in

fact, execution petition was filed after judgment and decree and

it is pending consideration.

21. The findings of facts recorded by the Courts below are

based on evidence and hence, do not call for interference by this

Court under Sec 100 CPC. Hence, the second appeal is liable to

be dismissed, however without costs.

22. The appellant has been carrying on business since 2006,

this Court, in view of the affidavit filed by the appellant, deem it

appropriate to grant time to vacate the schedule premises till

31.08.2022. The appellant also agrees to pay rent at

Rs.12,000/- per month from March, 2022 till he vacates the

schedule premises.

23. In view of the same, time is granted to vacate the premises

till 31.08.2022 subject to following conditions:

(1) The proprietor of appellant shall file an undertaking

affidavit before the executing Court on or before

25.04.2022 that he would vacate the schedule premises

by 31.08.2022.

(2) The proprietor of appellant shall continue to pay the rent

at Rs.12,000/- per month from March, 2022 till

31.08.2022 on or before 10th of succeeding month. The

rent for the month of August, 2002 is to be paid by

31.08.2022. However, this will not preclude the landlord

from filing separate application as per decree claiming

future damages for use and occupation.

(3) If the appellant (proprietor) failed to adhere to any of the

conditions referred supra, the respondent/plaintiff is

entitled to execute the decree without reference to time

granted by the Court to vacate the schedule premises till

31.08.2022.

24. With the above directions, the second appeal is dismissed,

however without costs.

As a sequel, all the pending miscellaneous applications

shall stand closed.

_________________________ SUBBA REDDY SATTI, J 13th April, 2022

PVD

THE HON'BLE SRI JUSTICE SUBBA REDDY SATTI

SECOND APPEAL No.204 of 2021

13th April, 2022

PVD