M/S. Preethi Fancy And Novelties, vs Municipal Corporation ...
2022 Latest Caselaw 1005 AP

          HON'BLE SRI JUSTICE SUBBA REDDY SATTI

                 SECOND APPEAL No.435 of 2021

JUDGMENT:-

        The unsuccessful plaintiff filed the present second appeal

under Section 100 of the Code of Civil Procedure, 1908 (for

short 'CPC'), aggrieved by the decree and judgment, dated

19.12.2019

passed in A.S.No.296 of 2018 on the file of VIII

Additional District and Sessions Court -cum- Special Court for

Trial of Offences against Women, East Godavari at

Rajamahendravaram, confirming the decree and judgment,

dated 29.10.2018 passed in O.S.No.166 of 2013 on the file of

Principal Junior Civil Judge, Rajamahendravaram.

2. For the sake of convenience, the parties shall be referred

to as they are arrayed in the plaint.

3. The plaintiff filed suit in O.S.No.166 of 2013 to declare the

notice bearing ROC No.12285/2002-A.1, dated 21.03.2013

issued by the defendant in respect of shop No.17 in Kambala

Cheruvu Municipal Shopping Complex, Rajahmundry Municipal

Corporation Limits, Rajahmundry, East Godavari District

(hereinafter referred to as 'schedule property'), calling upon the

plaintiff to vacate and deliver the vacant possession of the

schedule shop, as illegal, arbitrary and contrary to law and for

consequential injunction restraining the defendant, its men,

subordinates and agents from in any way trying to take forcible

possession of the schedule shop except by due process of law.

4. In the plaint, it was contended inter alia that the erstwhile

Rajahmundry Municipality (hereinafter referred to as

'Municipality') leased out the schedule shop to one Konduri

Krishnarjuna Rao; that the lease was commenced in the year,

1987 and the rent was Rs.1,000/- per month; that Municipality

was upgraded into Corporation; that the erstwhile Municipality

illegally and unilaterally demanded said Konduri Krishnarjuna

Rao to increase rent by 33 1/3% for every three years; that

Konduri Krishnarjuna Rao along with some other tenants filed

O.S.No.241 of 1990 on the file of learned IV Additional District

Munsiff, Rajahmundry against the Municipality seeking to

declare the notice as illegal and for a consequential permanent

injunction; that the suit was decreed on 26.06.1997; that the

Municipality preferred appeal vide A.S.No.168 of 1997 on the file

of learned VI Additional District Judge, East Godavari

Rajahmundry and the same was dismissed by decree and

judgment, dated 17.02.2003 confirming the decree and

judgment in O.S.No.241 of 1990 against which no appeal was

preferred by the Municipality; that the plaintiff with the

assistance of Konduri Krishnarjuna Rao is carrying on the

business in the schedule shop under the name and style of

'Preethi Fancy & Novelties' by paying the lease amount

regularly; that the defendant issued notice demanding the

plaintiff to vacate the premises and deliver the possession of the

schedule shop within fifteen days; that plaintiff is tenant under

the defendant and their relationship is lessor and lessee and he

is in lawful possession of the schedule shop; that his tenancy is

governed by statutory provisions of the Transfer of Property Act

and Andhra Pradesh Building (License, Rent and Eviction)

Control Act; that the defendant cannot demand the plaintiff to

handover vacant possession of the schedule property without

following due process of law and eventually prayed to decree the

suit.

5. Written statement was filed on behalf of the defendant and

it was contended inter alia that the schedule shop was leased

out to one Konduri Krishnarjuna Rao in the year, 1987 and

after the Municipality was upgraded to Corporation, the lease

was continued in the name of Konduri Krishnarjuna Rao and

notice was issued to him to deliver the vacant possession of the

schedule shop; that the notice was issued as per the Rules and

eventually prayed to dismiss the suit.

6. On behalf of the plaintiff, the proprietor of the plaintiff-

shop was examined as PW1 and Exs.A1 to A8 were marked. On

behalf of the defendant, the Revenue Inspector of the

Corporation was examined as DW1, however, no documents

were marked.

7. The trial Court on consideration of oral and documentary

evidence dismissed the suit by judgment, dated 29.10.2018.

Aggrieved by the said judgment and decree, plaintiff filed

A.S.No.296 of 2018 and the same was dismissed on 19.12.2019.

Hence, the present second appeal.

8. Heard Sri Mangena Sreerama Rao, learned counsel for the

appellant.

9. Learned counsel for the appellant would contend that the

Courts below failed to consider the material on record on proper

perspective. He further contended that no notice was issued to

the appellant though the appellant has been carrying on the

business in the premises and notice was issued to Konduri

Krishnarjuna Rao. He further contended that no notice is

required under Section 685 of the Hyderabad Municipal

Corporation Act, 1955 (for short 'HMC Act') prior to filing of the

suit against the Corporation challenging the notice.

10. As can be seen from the pleadings, lessor is Municipal

Corporation (Rajahmundry Municipality) and lessee is Konduri

Krishnarjuna Rao. The property was leased out to Konduri

Krishnarjuna Rao in the year, 1987 and according to the

pleadings, notice of eviction was issued to the tenant/licensee

since the lease period crossed 25 years, basing on the circular

issued by the Commissioner and Director of Municipal

Administration pursuant to the order passed by Division Bench

in W.P.No.6354 of 2009.

11. The plaintiff having contended in the plaint that he is

tenant of defendant-Corporation, failed to produce any

document. Though Exs.A1 to A8 were marked, none of the

documents show that the plaintiff is tenant or licensee of

schedule shop. In fact during the course of examination,

plaintiff admitted that the schedule shop was leased out to

Konduri Krishnarjuna Rao and he is continuing as sub-tenant

by paying rents. This fact is conspicuously silent in the plaint.

No document was also filed in support of his evidence that he is

sub-tenant and running business in the capacity of sub-tenant

of the premises.

12. Both the Courts below considered the aspect of

maintaining the suit for declaration by the plaintiff when the

plaintiff neither was a licensee nor tenant of schedule shop. In

the considered opinion of this Court, when notice was issued to

the original tenant/licensee directing him/her to vacate the

premises and such notice is in consonance with the provisions

of the HMC Act, the provisions of which are made applicable to

Rajahmundry Municipal Corporation, the alleged sub-

tenant/plaintiff cannot maintain a suit for declaration

challenging the said notice. In other words, no notice was issued

to the plaintiff demanding it/him to vacate the premises. For the

reasons best known to the plaintiff, he did not even array the

original licensee or tenant as party defendant to the suit.

13. The Courts below considered these aspects and recorded a

clear finding which does not brook interference of this Court

under Sec 100 CPC. No question of law much less substantial

question of law is involved in the present second appeal, which

warrants interference of this Court. The questions whether the

notice is required under Sec 685 of GHMC Act is left open since

this Court finds that no interference is warranted in view of

finding of facts recorded by Courts below. Hence, the second

appeal is liable to be dismissed, however, without costs.

14. Accordingly, the second appeal is dismissed. No order as

to costs.

As a sequel, pending miscellaneous petitions, if any, shall

stand closed.

_______________________________ JUSTICE SUBBA REDDY SATTI Date : 24.02.2022

IKN

HON'BLE SRI JUSTICE SUBBA REDDY SATTI

SECOND APPEAL No.435 of 2021 24.02.2022

IKN