Pabolu Arkjaneyulu, vs Nanik Sai Nani,
2023 Latest Caselaw 932 AP

     HONOURABLE SRI JUSTICE SUBBA REDDY SATTI

             SECOND APPEAL No.273 of 2022

JUDGMENT:

Defendant in the suit filed the above second appeal,

against the judgment and decree dated 02.05.2022 in

A.S.No.31 of 2016 on the file of XIII Additional District Judge,

Gajuwaka, confirming the judgment and decree dated

08.03.2016 in O.S.No.304 of 2013 on the file of Additional

Senior Civil Judge, Gajuwaka.

2. For the sake of convenience and brevity, the parties to

this judgment are referred to as they are arrayed in the

plaint.

3. Plaintiff filed the suit O.S.No.304 of 2013 seeking

ejectment of the defendant from the plaint B schedule

property and to deliver vacant possession of the same to the

plaintiff; for recovery of Rs.2,32,500/- towards arrears and

future damages at Rs.30,000/- per month.

4. In the plaint, it was contended interalia that the

plaintiff for his business purpose purchased the building

admeasuring 67.55 square yards consisting of four shops in

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ground floor and two shops in first floor at Gajuwaka under a

registered sale deed dated 18.03.2011 from Sarakam

Trinadha Swamy and others; that by the date of purchase of

property, defendant was in occupation of one of the shops in

the plaint A schedule property and the shop in the

occupation of defendant was shown as plaint B schedule

property; that plaintiff was running sweets shop in a rented

shop; that the landlord of plaintiff demanded him to vacate

the said shop; that the plaintiff demanded the defendant to

vacate the plaint B schedule property; in fact, even before

purchasing the B schedule property, plaintiff in the presence

of elders and mediators informed his intention to purchase

the same to defendant; that defendant assured the plaintiff

that he would vacate the premises and also agreed to pay

monthly rent at Rs.7,500/-, however, he failed to vacate the

premises; that plaintiff got issued legal notice on 27.04.2013

to defendant demanding to vacate the schedule property; that

defendant issued reply with false averments; that the plaintiff

got issued rejoinder notice on 13.07.2013; that the schedule

premises is situated in a highly potential and commercial

locality and would fetch more than Rs.30,000/- per month;

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that the plaintiff also requires the premises for bonafide

requirement and thus, filed the suit for the reliefs stated

supra.

5. Defendant filed written statement and contended

interalia that the plaintiff is a total stranger to him and

plaintiff never approached him before the alleged sale deed of

B schedule property from Sarakam Trinadha Swamy and

others; that there is no landlord and tenant relationship and

the tenancy was also not attorned; that defendant took the

property on lease from Sarakam Trinadha Swamy in the year

1999 on a monthly rent of Rs.1,000/- for the first five years

and doing readymade garments business in the name and

style of 'Kala Priya Fashions'; that he paid advance of

Rs.2,00,000/- to his landlord and invested huge capital and

developed the business; that in the year 2004 landlord

enhanced the rent from Rs.1,000/- to Rs.2,000/- for the next

five years; that both defendant and S.Trinadha Swamy

mutually agreed for enhancement of rent at Rs.1,000/- for

every five years; that in the year 2004 during road widening,

the Municipal authorities demolished front portion of the

shop and hence, the shop measurements were reduced to 11'

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x 28'; that he filed suit O.S.No.97 of 2008 on the file of Junior

Civil Judge, Gajuwaka for permanent injunction and the said

suit was decreed on 08.03.2010; that subsequent to that

suit, landlord filed suit O.S.No.322 of 2008 on the file of

Junior Civil Judge, Gajuwaka seeking eviction of defendant

from the schedule premises and the said suit was dismissed

on merits on 30.12.2010; that aggrieved by the same,

landlord filed appeal A.S.No.7 of 2011 and the same was

dismissed on 28.01.2013; that in the said judgment, it was

observed that the plaintiff therein failed to prove the rent for

demised premises is Rs.7,500/- per month; that after filing of

suit O.S.No.97 of 2008 the landlord refused to receive the

rents and hence, he filed R.C.C.No.4 of 2008 on the file of

Junior Civil Judge, Gajuwaka seeking permission to deposit

the admitted rents and the same was allowed with a direction

to deposit the rents at Rs.7,500/- per month; that aggrieved

by the same, he filed appeal R.C.A.No.3 of 2010 and the same

was allowed on 28.01.2013 directing the tenant to deposit the

admitted rents and thus, he has been paying rents without

default; that demised building is aged about 20 years and

rent is below Rs.3,500/- per month and therefore, civil suit

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for eviction is not maintainable; that plaintiff owns sufficient

and alternative accommodation for the purpose of his

business and on the other hand, defendant is eking out

livelihood through the business in the schedule property and

it is only source of his income; that he never committed

default in payment of rents and he is regularly depositing the

amount in advance as directed by the Court in R.C.A.No.3 of

2010 and eventually, prayed the Court to dismiss the suit.

6. Basing on the pleadings, the trial Court framed the

following issues:

(1) Whether the plaintiff purchased four shops in ground floor and two shops in first floor from Sarakam Trinadha Swamy?

(2) Whether prior to purchase in the mediations, whether the defendant agreed to vacate the B schedule property when required by the plaintiff? (3) Whether the defendant agreed to pay an amount of Rs.7,500/- per month towards rent to the plaintiff?

(4) Whether the defendant failed to pay the agreed rent?

(5) Whether the defendant failed to vacate B schedule property despite issuing a quit notice?

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(6) Whether the plaintiff required B schedule property for his personal use for running sweet shop?

(7) Whether there is no landlord and tenant relationship between the plaintiff and defendant? (8) Whether the defendant paid an advance of Rs.2,00,000/- to Sarakam Trinadha Swamy for funning Kalapriya Fashions?

(9) Whether the defendant is making alterations without permission of the plaintiff?

(10)Whether the agreed rent was only Rs.3,000/- per month as decided in R.C.A.No.3 of 2010?

(11)Whether the plaintiff is entitled for a decree for eviction of the defendant from B schedule property and for delivery of vacant possession of the same?

(12)Whether the plaintiff is entitled for a decree for the arrears of rent of Rs.2,32,500/- from 18.03.2012 to 18.10.2013?

(13)Whether the plaintiff is entitled for permanent injunction to restrain the defendant from making alterations to the B schedule property? (14)Whether the plaintiff is entitled for future damages @ Rs.30,000/- per month till the defendant is duly evicted?

(15) To what relief?

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The following additional issue is framed:

(1) Whether the civil suit for eviction of plaint B schedule property is maintainable against the defendant?

7. During the trial, plaintiff examined himself as P.W.1

and got examined P.Ws.2 to 4. Exs.A-1 to A-7 were marked.

Exs.X-1 to X-4 were marked. Defendant examined himself as

D.W.1 and got examined D.Ws.2 to 4. Exs.B-1 to B-5 were

marked.

8. Trial Court recorded findings that the plaintiff

purchased the suit schedule property and other properties

under Ex.A-1; that plaintiff failed to prove that prior to

purchase of suit schedule property, defendant agreed to

vacate the B schedule property as and when required by

plaintiff. Regarding maintainability of suit before the Civil

Court, trial Court came to conclusion that by virtue of

Section 32 of the Andhra Pradesh Buildings (Lease, Rent &

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

provisions have no application. Since the lease was

determined by issuing legal notice defendant is liable to be

evicted. Regarding the rent, trial Court came to conclusion

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that from 2009 to 2013, rent agreed must be Rs.3,000/- per

month and from 2014 onwards, rent must be Rs.4,000/- per

month. Trial Court concluded regarding the maintainability of

suit as follows: "Hence, under any stretch of imagination it

cannot be held that plaintiff accepted to receive the rent @

Rs.3,000/- per month for the plaint B schedule property by the

date of filing of this suit. When defendant failed to prove his

specific defence as agreed rent is Rs.3,000/- per month only

for the schedule property, it cannot be held that civil suit is

maintainable to evict him from the let out premises even though

it is 25 years old building."

9. Thus, concluded that schedule premises fall outside the

protection of the Act 1960 and hence, civil suit is

maintainable. Trial Court also recorded finding that the

plaintiff failed to prove that defendant agreed to pay rent at

Rs.7,500/- per month from 18.03.2011 and in fact,

defendant deposited the rents at Rs.3,000/- per month upto

June, 2015. Regarding attornment of tenancy, considering

Section 109 of the Transfer of Property Act, 1881 (for short

"T.P.Act"), trial Court concluded that the tenancy was

attorned. Trial Court came to conclusion that by issuing

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Ex.A-3 legal notice, lease was determined. It gave a findings

the plaintiff is entitled for Rs.93,000/- at Rs.3,000/- per

month from 18.03.2011 to 18.10.2013 and rest of the claim

was disallowed. Trial Court also came to the conclusion that

plaintiff is entitled for future damages at Rs.8,000/- per

month from November, 2011 till the defendant vacated the

schedule premises and eventually, suit was decreed with

costs directing the defendant to vacate the plaint B schedule

property within three months.

10. Aggrieved by the said judgment and decree, defendant

filed appeal A.S.No.31 of 2016 on the file of XIII Additional

District Judge, Gajuwaka. Lower appellate Court being the

final factfinding Court, after considering the evidence and

legal aspects, dismissed the appeal vide judgment and decree

dated 02.05.2022. Assailing the same, the above second

appeal is filed.

11. Heard Sri Narasimha Rao Gudiseva, learned counsel for

the appellant and Sri Radhakrishna, learned counsel

representing Sri Mangena Sree Ramarao, learned counsel for

the respondent.

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12. Second appeal was admitted on 01.09.2022 on the

following substantial questions of law:

(1) Whether the Civil Court has jurisdiction to entertain this suit when the rent of the demised premises is less than Rs.3,500/-?

(2) Whether the decree and judgment in O.S.No.323 of 2008 confirmed A.S.No.7 of 2011 binds the plaintiff?

13. Learned counsel for the appellant would submit that in

view of findings recorded by the Courts below regarding rent

at Rs.3,000/- per month on the date of filing of suit Civil

Court had no jurisdiction to entertain the suit. He also would

submit that the appellant has been depositing rents before

the Rent Control Court, pursuant to order in R.C.A.No.4 of

2010 and never committed default. He would also submit

that vendor of landlord filed suit O.S.No.322 of 2008 seeking

eviction of appellant and the same was dismissed on

31.12.2010, which was confirmed in A.S.No.7 of 2011 by the

appellate Court on 28.01.2013 and thus, the Courts below

committed error in entertaining the suit.

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14. Learned counsel for the respondent while supporting

the judgments of the Courts below, would contend that Civil

Court got jurisdiction to entertain the suit. Provisions of the

Act 1960, do not apply to the demised premises. By virtue of

Sec 32 of the Act Civil Court got jurisdiction to entertain the

suit. Tenant had to prove the rent and since the tenant failed

to prove the rent is less than Rs 3,500/- suit alone is

maintainable. He also would contend that principle of res

judicata would not apply. Learned counsel relied upon the

judgment of Hon'ble Apex Court in Noorunnisa Begum Vs.

Brij Kishore Sanghi1; unreported judgment of the Andhra

Pradesh High Court in S.A.Nos.583 and 584 of 2021 and the

Hon'ble Apex Court's judgment in V.Rajeshwari Vs.

T.C.Saravanabava2.

15. Undisputed facts are that suit schedule property is

shop bearing Door No.10-8-4/3 with measurements 11.5' x

32' (11-5 x 28). Plaintiff purchased the plaint A schedule

property under a registered sale deed dated 18.03.2011. By

that time when the plaintiff purchased the suit schedule

(2015) 17 SCC 128

(2004) 1 SCC 551

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property, his vendor filed suit O.S.No.322 of 2008 against the

appellant herein seeking eviction and contended that agreed

rent is Rs.7,500/- per month. However, the said suit was

dismissed by the trial Court by judgment and decree dated

31.12.2010. Vendor of plaintiff filed appeal A.S.No.7 of 2011

on the file of Senior Civil Judge, Gajuwaka and the appeal

was dismissed on 28.01.2013.

16. The appeal A.S.No.7 of 2011 was presented on

28.03.2011 and it was numbered on 04.06.2011. Before the

appeal was presented and after dismissal of the suit, vendor

of the plaintiff alienated the schedule property in favour of

plaintiff in the suit on 18.03.2011. However, appeal was filed,

and the appeal was dismissed on merits.

17. It is pertinent to mention here that vendor of plaintiff in

suit O.S.No.322 of 2008 contended that rent is Rs.7,500/-.

Though the trial Court did not advert to the said aspect,

however, dismissed the suit. In A.S.No.7 of 2011, lower

appellate Court recorded finding as follows:

"As the plaintiff filed the suit claiming that the provisions of Transfer of Property Act are applicable and not the Rent Control provisions the plaintiff has to prove that the rent

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agreed between the parties is more than Rs.3,500/- and the provisions of Rent Control Act are not applicable. In view of the above discussion, it is clear that the plaintiff has miserably failed to prove that the provisions of Transfer of Property Act are applicable to the facts on hand."

In paragraph-39 of the judgment it was concluded as follows:

"So, there is no material placed by the plaintiff to show that the prevailing rent was Rs.7,500/- as on the date of filing of the suit. When the rent is less than Rs.3,500/-, the provisions of the Rent Control Act are applicable and not Section 106 of Transfer of Property. When Transfer of Property Act is not applicable the suit as filed by the plaintiff itself is not maintainable. The plaintiff has to approach the Rent Controller for eviction of defendant from the suit schedule shop for personal occupation on the ground of willful default".

18. In the appeal A.S.No.7 of 2011, I.A. was filed Order 41

Rule 27 of CPC to receive certified copy of registered sale

deeds executed by vendor of plaintiff in favour of plaintiff and

others and the same were received.

19. It is not out of place to mention that Appellant/tenant

herein initiated RCC proceedings before the Rent Controller

seeking permission to deposit the rents under Section 8 of

the Act 1960. The Rent Controller directed the appellant to

deposit Rs.7,500/- per month. Against the said order,

appellant herein filed R.C.A.No.3 of 2010 and the same was

allowed on 28.01.2013 directing the appellant herein to

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deposit rent at Rs.3,000/- per month. Appeal A.S.No.7 of

2011 was dismissed on 28.01.2013.

20. Neither in the Suit/Appeal nor in RCC/RCA plaintiff in

the present suit is party. However, vendor of plaintiff is party.

It is not case of the plaintiff that after he purchased the

demised premises he entered into a separate agreement with

tenant. He pleaded attornment of tenancy under Section 109

of T.P.Act. Judgment in appeal A.S.No.7 of 2011 and order in

RCA 3 of 2010 were passed after, the plaintiff in the present

suit, purchased the demised premises. Pleadings in earlier

suits were not marked in the present suit. Only judgements

were marked as Exs B-1 to B-4. Learned counsel for the

respondent relied upon judgment reported in V.Rajeshwari's

case (supra-2) and would contend that the judgment in

A.S.No.7 of 2011 would not operate as res judicata for want of

filing of pleadings.

21. Rule of res judicata does not strike at the root of the

jurisdiction of the Court trying the subsequent suit. It is a

rule of estoppel by judgment based on public policy that there

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should be a finality to litigation and no one should be vexed

twice for the same cause.

22. The observation of the Apex Court in Rajeswari's case

relevant is extracted here.

"13. May be, in a given case only copy judgement contains exhaustive or in requisite details the statement of pleading and the issues which may be taken as enough proof."

However, the Hon'ble Apex Court basing on the

judgment in Syed Mohd. Salie Labbai (Dead) By Lrs. and

Ors. Vs. Mohd. Hanifa (Dead) by Lrs. and Ors. [(1976) 3

SCR 721], further observed that:

"The basic method to decide the question of res judicata is first to determine the case of the parties as put forward in their respective pleadings of their previous suit and then to find out as to what had been decided by the judgment which operates as res judicata. It is risky to speculate about the pleadings merely by a summary of recitals of the allegations made in the pleadings mentioned in the judgment."

23. After dismissal of earlier litigation initiated by the

vendor of the plaintiff, plaintiff got issued legal notice on

27.04.2013 determining the lease. Plaintiff contended that

before purchase of schedule property, he approached the

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defendant and informed him about his purchase and the

defendant also promised him that he would vacate the

premises as and when it was required. Plaintiff also

contended that in the presence of elders and mediators,

defendant assured the plaintiff that whenever the plaintiff

demanded for delivery of B schedule property, he would

deliver vacant possession and, also agreed to pay rent at

Rs.7,500/- per month. He further contended in the plaint

that on several occasions, he demanded and requested the

defendant to vacate the B schedule property, but defendant

paid deaf-ear and since the date of purchase of the 'A'

schedule property, defendant has not paid single rupee and

also failed to vacate the 'B' schedule property.

24. Defendant pleaded about his taking demised premises

on lease from the vendor of plaintiff in the year 1999; rent at

Rs.1,000/- per month; enhancement of Rs.1,000/- for every

five years; filing of suit by landlord seeking eviction, dismissal

of the suit and confirmation of appeal by the appellate Court

and his filing RCC and RCA and also specifically pleaded that

Civil Court had no jurisdiction to entertain the suit.

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25. In the above background of the facts, though the

Courts below recorded concurrent findings regarding

jurisdiction, since the issue goes to roof of the matter, this

Court must see, whether the Civil Court got jurisdiction to

entertain the suit for eviction.

26. Section 32 of the Act 1960 as amended by Act 17 of

2005, which came into effect from 28.04.2005, reads thus:

32. Act not apply to certain buildings:- The provisions of this Act shall not apply:

(a) to any building belonging to the State Government or the Central Government, or Cantonment Board or any local authority;

(b) to any building constructed or substantially renovated, either before or after the commencement of this Act for a period of fifteen years from the date of completion of such construction or substantial renovation.

Explanation I: - A building may be said to be substantially renovated if not less than seventy five per cent of the premises is built new in accordance with the criteria prescribed for determining the extent of renovation;

Explanation II: - Date of completion of construction shall be the date of completion as intimated to the concerned authority or of assessment of property tax, whichever is earlier, and where the premises have been constructed in stages the date on which the initial building was completed and an intimation thereof was sent to the concerned authority or was assessed to property tax, whichever is earlier.

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(c) to any building the rent of which as on the date of commencement of the Andhra Pradesh Buildings (Lease, Rent and Eviction) Control (Amendment) Act, 2005, exceeds rupees three thousand and five hundred per month in the areas covered by the Municipal Corporations in the State and rupees two thousand per month in other areas.]

27. After amendment came into force, the matter went to

the Hon'ble Apex Court. In Noorunnisa Begum's case

(supra-1), the Hon'ble Apex Court considered the scope of

Section 32 of the Act, amended in the year 2005, whether

prospective or retrospective. It was observed that:

"37. After amendment of Section 32 by the Amendment Act, 2005, w.e.f. 27.04.2005, tenants of a building, rent of which is Rs. 3,500/- p.m. or below in the areas covered by the Municipal Corporations and the tenants of a building, rent of which is Rs. 2,000/- p.m. or below in other areas, only remain as protected tenants. In effect, the rest of the tenants of any building rent of which exceeds Rs. 3,500/- p.m. in the area covered by the Municipal Corporation and Rs. 2,000/- p.m. in other areas, no more remain tenant within the meaning of Section 2(ix) of the Act as the Act is not applicable to them. Therefore, since, 27th April, 2005 this class of tenants of building whose rent exceeds Rs. 3,500/- p.m. in Municipal Corporation areas and Rs. 2,000/- per month in other areas, lost their right of protection under the Act in view of amended Section 32(c). This apart the tenants of any building constructed or substantially renovated, either before or after the commencement of the Act for a period of fifteen years from the date of completion of such construction or substantial renovation, no more remain 'tenant' within the meaning of Section 2(ix) of the Act and they also lost their right of protection in view of the amended Section 32(b). The position with regard to the building belonging to the

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Government remained the same. The tenants of building belonging to the Cantonment Board or local authority also lost their rights to claim protection in view of amended Section 32(a)."

In Paragraph-42 of the said judgment, it was held thus:

"42. In view of the aforesaid discussion, we hold that part of Section 32 i.e. Section 32(a) and (c) is prospective and other part i.e. Section 32(b) is retrospective."

28. Trial Court recorded finding at Paragraph-13 of its

judgment that the suit schedule property is 25 years old

building as by the date of filing of the suit. Regarding

quantum of rent, trial Court came to conclusion that from

2009 to 2013 agreed rent must be Rs.3,000/- per month and

from 2014 onwards, rent must be Rs.4,000/- per month.

Having arrived at the above conclusion, trial Court on the

issue of maintainability of suit, gave the following reasons:

"Hence, under any stretch of imagination it cannot be held that plaintiff accepted to receive the rent @ Rs.3,000/- per month for the plaint B schedule property by the date of filing of this suit. When defendant failed to prove his specific defence as agreed rent is Rs.3,000/- per month only for the schedule property, it cannot be held that civil suit is maintainable to evict him from the let out premises even though it is 25 years old building."

29. In Paragraph-23 of the judgment, trial Court recorded

the finding as follows:

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"Hence, considering the order n R.C.A.No.3 of 2010 it can be held that plaintiff is entitled for the decree only to receive an amount of Rs.93,000/- (i.e. @ Rs.3,000/- per month for 31 months) towards arrears of the rent for the period from 18.03.2011 to 18.10.2013 and rest of the claim can be disallowed".

30. Lower appellate Court in Paragraph-22 of the judgment

in A.S.No.31 of 2016 observed as follows:

"Thus, even before Ex.A1 sale deed was executed in March, 2011 contention of Trinadha Swamy that the rent was enhanced to Rs.7,500/- per month was not accepted by the Court. It is therefore not possible to believe that defendant yet agreed to pay rent at the rate of Rs.7,500/- per month to plaintiff. No tenant would agree to pay such rent in the circumstances stated above, particularly in a case like the present one where there is a Judgment of the competent Court which accepted the contention of the tenant that the rent was only Rs.3,000/- per month. Moreover, as stated above, plaintiff has not revealed the names of elders and mediators in whose presence defendant agreed to pay rent @ Rs.7,5000/- per month."

31. Lower appellate Court in Paragraph-31 of the judgment

in A.S.No.31 of 2016 recording the following finding:

31. From the above discussion, it can be said that plaintiff could not prove that the defendant agreed to pay rent @ Rs.7,500/- per month.

32. Regarding renovation and age of the building, lower

appellate Court recorded the following finding at Paragraph-

34 of the judgment:

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"34. From the above evidence, it can be seen that defendant failed to prove that the shop was substantially renovated, much less within the period of 15 years as contemplated by Section 32 of the Rent Control Act. Therefore, it is held that the defendant failed to prove his plea of substantial renovation."

33. Lower Appellate Court recorded the finding at

Paragraph-45 of the judgment with regard to default in

payment of rents is at Rs.4,000/- per month from 2014 and

eventually, the lower appellate Court dismissed the appeal.

34. Thus, findings recorded by the Courts below regarding

rent payable by the tenant is Rs.3,000/- per month till 2003

and from 2004 the rent is Rs.4,000/- per month. In fact,

trial Court awarded arrears of rent at Rs. 3,000/- per month

till 18-10-2013. Rent must be Rs.4,000/- from 2014

onwards. The suit was filed 13-11-2013.

35. As per Section 32 of the Act 1960, which is extracted

supra, the tenants of a building, rent of which is Rs. 3,500/-

p.m. or below in the areas covered by the Municipal

Corporations and the tenants of a building, rent of which is

Rs. 2,000/- p.m. or below in other areas, only remain as

protected tenants. Regarding Section 32 (b) of the Act 1960,

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the provisions of the Act 1960 would apply to the tenants of

any building constructed or substantially renovated, either

before or after the commencement of the Act for a period of

fifteen years from the date of completion of such construction

or substantial renovation.

36. As seen from the pleadings narrated supra, plaintiff's

vendor filed suit for eviction O.S.No.322 of 2008 against the

appellant herein and contended that the rent is Rs.7,500/-

per month, however, the said suit was dismissed and

confirmed in appeal A.S.No.7 of 2011. In appeal A.S.No. 7 of

2011, a clear finding is recorded that civil suit filed for

eviction is not maintainable.

37. Plaintiff did not plead fresh tenancy. He only pleaded

attornment of tenancy. Immediately after dismissal of appeal

A.S.No.7 of 2011 on 28.01.2013, plaintiff got issued notice

and determined lease. He also contended that rent is

Rs.7,500/- per month. Neither the plaintiff nor his vendor

proved that the rent is Rs.7,500/- per month. However, the

order in RCA 3 of 2010 would indicate that the rent is

Rs.3,000/- per month and tenant has been deposing the rent

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at that rate. As on the date of filing of suit i.e. by November,

2013, tenant has been deposing the rent at Rs.3,000/- to the

credit of RCC.

38. Plaintiff in the present suit purchased the property on

18.03.2011, even before filing of appeal by his vendor.

Plaintiff contended that defendant agreed to pay rent at

Rs.7,500/-. In fact, the lower appellate Court disbelieved

such version, however, dismissed the appeal. When the

plaintiff failed to prove that the rent of demised premises is

more than Rs.3,000/- per month and the construction of the

building is less than 15 years, protection is available to the

tenant and Section 2 (ix) of the Act 1960 comes into operation

and hence, the suit filed by the respondent/landlord

O.S.No.304 of 2013 on the file of Additional Senior Civil

Judge, Gajuwaka is not maintainable.

39. Trial Court having held that the defendant failed to

prove rent, in fact held that the plaintiff is entitled to receive

Rs.93,000/- @ Rs.3,000/- per month for 31 months i.e. from

18.03.2011 to 18.10.2013. The present suit was filed on

13.11.2013. Both the Courts below further concluded that

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defendant has to pay rent at Rs.4,000/- per month from

2014 onwards. By that time, the suit was filed in November,

2013, in view of findings recorded by the Courts below, rent

is Rs.3,000/- per month. Hence, the landlord would have

initiated proceedings under Act 1960.

40. Regarding age of building is concerned that Trial Court

recorded finding that it is 25 years old. Appellate Court gave

a finding that tenant failed to prove renovation. Thus, going

by the pleadings and evidence on record, age of building is

more than 15 years and it is 25 years. Hence in view of

Section 32 (b) of Act 1960, Civil Court had no jurisdiction to

entertain the suit. In the judgment, unreported, cited by

learned counsel for the respondent may not help the

respondent, since in that case, the age of building is less than

15 years and hence this Court opined that Civil suit is

maintainable though the rent is less than Rs.3,500/-. But,

case on hand, rent is Rs.3,000/- on the date of filing of the

suit and age of building is more than 15 years. Hence on both

the counts Civil Court's jurisdiction is barred to entertain the

suit.

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41. Though, it was argued regarding applicability of res

judicata this court need not go into the said aspect in view of

the findings recorded by Courts below regarding rent and age

of the building.

42. Whether this Court can interfere with concurrent

findings of the facts recorded by Courts below under Section

100 of CPC.

43. Dealing with the scope of Section 100 of CPC, the

Hon'ble Apex Court in Kulwant Kaur and Ors vs. Gurdial

Singh Mann (Dead) By Lrs. and Ors.3 held as follows:

"Section 100 of CPC introduced a definite restriction on to the exercise of jurisdiction in a second appeal so far as the High Court is concerned. Needless to say that the Code of Civil Procedure Amendment Act, 1976 introduced such an embargo for such definite objectives and since we are not required to further probe on that score, we are not detailing out, but the fact remains that while it is true that in a second appeal a finding of fact even if erroneous will generally not be disturbed but where it is found that the findings stands vitiated on wrong test and on the basis of assumptions and conjectures and resultantly there is an element of perversity involved therein, the High Court in our view will be within its jurisdiction to dealt with the issue. This is, however, only in the event such a fact is brought to light by the High Court explicitly and the judgment should also be categorical as to the issue of perversity vis-à-vis the Concept of justice. Needless to say however, that perversity itself

3 (2001) 4 SCC 262

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is a substantial question worth adjudication what is required is a categorical finding on the part of the High Court as to perversity."

44. The Hon'ble Apex Court in Yadavarao Dajiba

Shrawane Vs. Nanilal Harakchand Shah (Dead) and Ors.4

held thus:

"From the discussions in the judgment it is clear that the High Court has based its findings on the documentary evidence placed on record and statements made by some witnesses which can be construed as admissions or conclusions. The position is well settled that when the judgment of the final Court of fact is based on mis-interpretation of documentary evidence or on consideration of inadmissible evidence or ignoring material evidence the High Court in second appeal is entitled to interfere with the judgment. The position is also well settled that admission of parties or their witnesses are relevant pieces of evidence and should be given due weightage by Courts. A finding of fact ignoring such admissions or concessions is vitiated in law and can be interfered with by the High Court in second appeal. Since the parties have been in litigating terms for several decades the records are voluminous. The High Court as it appears from the judgment has discussed the documentary evidence threadbare in the light of law relating to their admissibility and relevance."

45. In Leela Soni vs. Rajesh Goyal5, the Hon'ble Apex

Court held thus:

"21. It will be apt to refer to Section 103 of C.P.C. which enables the High Court to determine the issues of fact:

2002 (6) SCC 404

2001 (7) SCC 494

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"103. Power of High Court to determine issue of fact.- In any second appeal, the High Court may, if the evidence on the record is sufficient, determine any issue necessary for the disposal of the appeal,

(a) which has not been determined by the Lower Appellate Court or both by the Court of first instance and the Lower Appellate Court, or

(b) which has been wrongly determined by such court or courts by reason of a decision on such question of law as is referred to in section 100."

22. The section, noted above, authorizes the High Court to determine any issue which is necessary for the disposal of the second appeal provided the evidence on record is sufficient, in any of the following two situations : (1) when that issue has not been determined both by the trial court as well as the Lower Appellate Court or by the Lower Appellate Court; or (2) when both the trial court as well as the Appellate Court or the Lower Appellate Court has wrongly determined any issue on a substantial question of law which can properly be the subject matter of second appeal under Section 100 of C.P.C."

46. The Hon'ble Apex Court in Ishwar Dass Jain (Dead)

Thr. Lrs Vs. Sohan Lal (Dead) By Lrs6, held thus:

"It is essential for the High Court to formulate a substantial question of law under section 100 CPC, after the 1976 amendment and it is not permissible to reverse the judgment of the first appellate Court without doing so."

47. The Hon'ble Apex Court in Hero Vinoth Vs.

Seshammal7, held thus:

2000 (1) SCC 434

SRSJ SA No.273 of 2022

"19. It is not within the domain of the High Court to investigate the grounds on which the findings were arrived at, by the last court of fact, being the first appellate court. It is true that the lower appellate court should not ordinarily reject witnesses accepted by the trial court in respect of credibility but even where it has rejected the witnesses accepted by the trial court, the same is no ground for interference in second appeal when it is found that the appellate court has given satisfactory reasons for doing so. In a case where from a given set of circumstances two inferences of fact are possible, one drawn by the lower appellate court will not be interfered by the High Court in second appeal. Adopting any other approach is not permissible. The High Court will, however, interfere where it is found that the conclusions drawn by the lower appellate court were erroneous being contrary to the mandatory provisions of law applicable or its settled position on the basis of pronouncements made by the Apex Court, or was based upon inadmissible evidence or arrived at by ignoring material evidence.

It was furthermore held:

23. 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 bearing 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. An entirely new point raised for the first time before the High Court is not a question involved in the case unless it goes to the root of the matter. It will, therefore, depend on the facts and circumstance of each case whether a question of law is a substantial one and involved in the case, 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

AIR 2009 SC 1481

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impelling necessity of avoiding prolongation in the life of any lis. (See Santosh Hazari v. Purushottam Tiwari MANU/SC/0091/2001).

24. The principles relating to Section 100 CPC, relevant for this case, may be summerized thus:-

(i) ...

(ii) The High Court should be satisfied that the case involves a substantial question of law, and not a mere question of law. A question of law having a material bearing on the decision of the case (that is, a question, answer to which affects the rights of parties to the suit) will be a substantial question of law, if it is not covered by any specific provisions of law or settled legal principle emerging from binding precedents, and, involves a debatable legal issue. A substantial question of law will also arise in a contrary situation, where the legal position is clear, either on account of express provisions of law or binding precedents, but the court below has decided the matter, either ignoring or acting contrary to such legal principle. In the second type of cases, the substantial question of law arises not because the law is still debatable, but because the decision rendered on a material question, violates the settled position of law."

48. Conspectus of judgements referred to supra on the

scope of interference by the High Court in second appeal, this

Court while exercising jurisdiction under Section 100 of CPC

must confine to the substantial question of law involved in

the appeal. This Court cannot re-appreciate the evidence and

interfere with the concurrent findings of the Court below

where the Courts below have exercised the discretion

judicially. Further the existence of substantial question of law

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is the sine qua non for the exercise of jurisdiction. This Court

cannot substantiate its own opinion unless the findings of the

Court are manifestly perverse and contrary to the evidence on

record. If the findings are based on inadmissible evidence or

failure to consider relevant evidence high court under Sec

100 CPC can interfere.

49. Keeping in view of the principles regarding Section 100

of CPC, though the appeal filed by appellant is against

concurrent findings of fact, in view of discussion made supra,

both the Courts below misread the evidence on record and

thus failed to record correct findings basing the evidence

regarding quantum of rent. In fact, the findings recorded by

the trial Court regarding rent are mutually inconsistent.

Regarding age of building, the evidence on record shows that

it is 25 years old. Thus, this Court concludes that rent on

the date of filing of suit is Rs.3,000/- per month and building

is more than 15 years and as per finding it is 25 years old

and hence Civil Court had no jurisdiction to entertain the

suit. As stated supra, the finds recorded by the courts below

are contrary to the material on record, though the courts

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below recorded findings, this court is of the opinion that the

appeal deserves to be allowed.

50. Accordingly, the second appeal is allowed. The

judgment and decree dated 02.05.2022 in A.S.No.31 of 2016

on the file of XIII Additional District Judge, Gajuwaka,

confirming the judgment and decree dated 08.03.2016 in

O.S.No.304 of 2013 on the file of Additional Senior Civil

Judge, Gajuwaka, are hereby set aside. Consequently, suit

O.S.No.304 of 2013 is dismissed. In the facts and

circumstances of the case, there shall be no order as to costs.

As a sequel, all the pending miscellaneous applications

shall stand closed.

_________________________ SUBBA REDDY SATTI, J

16th February, 2023

PVD