Gelivi Siva Reddy vs Majeti Venkata Sivarama Prasad
2023 Latest Caselaw 4677 AP

      THE HON'BLE JUSTICE Dr. V.R.K.KRUPA SAGAR

             SECOND APPEAL No.1472 of 2018
                          and
         CIVIL REVISION PETITION No.5696 of 2018


COMMON JUDGMENT:

      The demised premises are in dispute.          Tenant is the

appellant here. Landlord is the respondent.

2. Landlord filed O.S.No.892 of 2009 as against the tenant

seeking for eviction and delivery of possession and for recovery

of damages for use and occupation and for future damages and

for costs. After due contest, granting all the prayers suit was

decreed by the learned Principal Junior Civil Judge, Guntur by

a judgment dated 20.03.2013. The dissatisfied tenant appealed

to District Court. Learned II Additional District Judge, Guntur

in A.S.No.112 of 2013 on hearing both sides delivered a

judgment dated 04.09.2018 dismissing the appeal and

consequently it confirmed the judgment of the learned trial

Court. It is against that the present Second Appeal under

Section 100 of Code of Civil Procedure (C.P.C.) is preferred by

the tenant in S.A.No.1472 of 2018.

3. While O.S.No.892 of 2009 was pending before the Civil

Court, the tenant filed R.C.C.No.32 of 2009 under Section 8(8)

Dr. VRKS, J S.A.No.1472 of 2018 & C.R.P.No.5696 of 2018

of the Andhra Pradesh Buildings (Lease, Rent and Eviction)

Control Act, 1960 (for short, 'the Rent Control Act') seeking

permission to make deposit of monthly rents before the Rent

Controller. After due contest, by an order dated 20.03.2013,

the Rent Controller dismissed the petition. Aggrieved by it, the

tenant preferred an appeal in R.C.A.No.6 of 2015 and the

learned II Additional District Judge, Guntur by a judgment

dated 04.09.2018 dismissed the said appeal and thereby

confirmed the order of Rent Controller. It is against that the

tenant preferred the present C.R.P.No.5696 of 2018 under

Section 22 of the Rent Control Act seeking to set aside the

orders passed by the Courts below.

4. In both the matters the parties are same, and the essence

of the dispute is the same. Both matters have been heard

together and are now to be disposed of by this common

judgment.

5. Sri Arun Showri G., the learned counsel for appellant and

also the revision petitioner and Sri N.Sriram Murthy, the

learned counsel for respondent in both the matters submitted

arguments.

Dr. VRKS, J S.A.No.1472 of 2018 & C.R.P.No.5696 of 2018

6. It is to be recorded that the second appeal has been

argued before admission. An appeal shall lie to the High Court

and it could be admitted if the High Court is satisfied that the

case involves a substantial question of law. There is no

jurisdiction to entertain a second appeal on the ground of

erroneous finding of facts. The question whether a fact has

been proved when evidence for or against has been properly

admitted is necessarily a pure question of fact. The proper legal

effect of a proved fact is essentially a question of law. It is in the

context of above legal principles, the material on record and the

judgments impugned are to be considered and the contentions

of the appellant are to be then considered to find out whether

any substantial questions of law have arisen in this appeal.

7. There is no dispute about the property involved in this

litigation. It is described in the plaint schedule. It is RCC

building with three floors situate in Brodipet, 3rd line, 2nd cross

road, New Ward No.3, Block No.8, TS No.548 in Guntur

Municipal Corporation Area. It is undisputed that respondent

here is the landlord and the appellant here is the tenant in it.

As on 31.03.2009 the rent between the parties was Rs.3,500/-

per month payable by the tenant to the landlord. It is also

Dr. VRKS, J S.A.No.1472 of 2018 & C.R.P.No.5696 of 2018

undisputed that the tenant has been using the demised

premises for commercial purpose as well as residential purpose.

He has been running a Kakatiya Students Mess in ground floor

and first floor and he has been living in the second floor. It is in

the above referred facts and circumstances, landlord filed

O.S.No.892 of 2009 before the Civil Court alleging that the

tenancy expired by 31.03.2009 and as per the registered lease

deed on expiry of the lease period the tenant was to vacate the

premises but the tenant failed to vacate the premises. A quit

notice dated 28.04.2009 was issued and the tenant received it

but failed to vacate the premises. By virtue of the latest lease

deed available between parties, it was agreed by the tenant that

in the event of his failure to vacate the premises on the expiry of

lease period, he would pay Rs.10,000/- per month to the

landlord. Plaintiff therefore sued for eviction and recovery of

possession and for monetary reliefs in the form of damages for

use and occupation and future profits.

8. Tenant filed a written statement resisting the claim and

stated that subsequent to 31.03.2009 there was an oral

understanding between him and the landlord for continuance of

tenancy and in violation of it suit was filed. That the landlord

Dr. VRKS, J S.A.No.1472 of 2018 & C.R.P.No.5696 of 2018

was demanding Rs.12,000/- per month and was not receiving

rents until the rent was finalized. That the Civil Court had no

jurisdiction as the rent per month was only Rs.3,500/- and the

building was aged more than 15 years by the time the suit was

filed. Contending that the Civil Court had no jurisdiction he

sought dismissal of the suit.

9. In the context of rival pleadings, the learned trial Court

framed the following issues for its consideration:

1. Whether the plaintiff is entitled for the relief of ejectment of the defendant from the suit schedule property?

2. Whether the plaintiff is entitled for recovery of damages for use and occupation of the premises of the plaint schedule property from 1.4.2009 to 30.06.2009 at Rs.10,000/- per month (Rs.30,000/-).

3. Whether the plaintiff is entitled for payment of future profits from 1.7.2009 till the date of delivery?

4. Whether RCC.No.32/2009 on the file of Rent Control, Guntur is bar to the claim of the plaintiff?

5. To what relief?

10. At the trial, landlord testified as PW.1 and got marked

Exs.A.1 to A.11. Tenant got examined as DW.1 and got

Dr. VRKS, J S.A.No.1472 of 2018 & C.R.P.No.5696 of 2018

examined another witness as DW.2 and got marked Exs.B.1 to

B.7.

11. The bone of contention between the parties before the trial

Court was concerning the jurisdiction of the Civil Court. Both

sides relied on Section 32 of the Rent Control Act. On

appreciation of evidence, the learned trial Court recorded a

finding that the building was aged less than 15 years and

therefore, Rent Control Act had no application and the Transfer

of Property Act governs the subject matter dispute and thus,

jurisdiction vested with the Civil Court. Before the trial Court

one more contention was raised by the tenant. That he spent

Rs.5,00,000/- for renovation of the building. On appreciation of

evidence that contention was negatived by the trial Court.

12. Both sides admitted and the trial Court found that the

rent per month between parties during the currency of tenancy

was Rs.3,500/-. The latest lease deed/Ex.A.1 indicates that in

the event of tenant failing to vacate the premises on expiry of

lease, he agreed to pay Rs.10,000/- per month and as he failed

to do so, the plaintiff was found entitled to have Rs.10,000/- per

month towards use and occupation for three months and

Dr. VRKS, J S.A.No.1472 of 2018 & C.R.P.No.5696 of 2018

thereafter at the same rate he is entitled for future profits. All

the contentions of defendant/tenant against that claim were

negatived.

13. Identical contentions were raised before the first appellate

Court. At Para No.16 of its impugned judgment the learned first

appellate Court recognized the main contentions between

parties that fell for its consideration and recorded them as

below:

(1) Whether the Civil Court has no jurisdiction to try the present case in view of the R.C.C. filed by the defendant?

(2) Whether the defendant is liable for eviction and for damages?

14. At Para No.13 it also framed a point for consideration as

mentioned below:

"Whether the judgment and decree passed by the Principal Junior Civil Judge, Guntur in O.S.No.892/2009 dated 20.3.2013 is sustainable under law or is liable to be set aside?

15. Learned first appellate Court considered Section 32 of the

Rent Control Act and considered the evidence on record and

Dr. VRKS, J S.A.No.1472 of 2018 & C.R.P.No.5696 of 2018

found that evidence disclosed that the building was aged less

than 15 years and the trial Court was right in holding that the

Civil Court had jurisdiction and on other points also it agreed

with the findings of the trial Court and after recording its own

reasons, it approved the judgment of the trial Court and

dismissed the appeal.

16. In the present second appeal tenant contends that the

following substantial questions of law do arise in this appeal:

(1) Whether the Trial Court is right in not giving a finding on Issue No.4 i.e., whether the RCC.No.32 of 2009 on the file of the Rent Control Tribunal, Guntur is bar to the claim of the plaintiff.

(2) Whether the Appellate Court is right in holding that Section 32 of the A.P. Building (Lease, Rent and Eviction) Control Act has no application to the suit premises.

(3) Whether the findings of the Trial Court and the Appellate Court, with regard to renovation of the schedule property for fixing the age of the building as 15 years is based on any sufficient evidence.

(4) Whether the decisions of both the Courts in holding that the Rent Control Act has no application and the Civil Court alone has jurisdiction is based on proper evidence.

Dr. VRKS, J S.A.No.1472 of 2018 & C.R.P.No.5696 of 2018

17. As against it, the learned counsel for respondent submits

that the alleged substantial questions of law do not arise in view

of the concurrent findings of the two Courts below. It is further

argued that what were disclosed to this Court as possible and

substantial questions of law do not indicate that they are

substantial questions of law at all. Learned counsel sought

dismissal of the appeal before admission.

18. Since arguments on both sides revolved around Section

32 of the Rent Control Act and the evidence brought on record

with reference to the principles contained in that provision, it is

apt to refer to Section 32 of the Rent Control Act, which is

mentioned below:

"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.

Dr. VRKS, J S.A.No.1472 of 2018 & C.R.P.No.5696 of 2018

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.

(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."

19. It was noticed by both the Courts below that a dispute

between landlord and tenant could go to a Civil Court or could

go to a Rent Controller and as to which matter should go to a

Rent Controller and which matter should go to a Civil Court is

to be decided based on what is provided in Section 32 of the

Rent Control Act. Both the Courts below have recorded that on

evidence it was found that Rs.3,500/- was the rent per month.

Dr. VRKS, J S.A.No.1472 of 2018 & C.R.P.No.5696 of 2018

This fact is admitted before this Court by both the learned

counsels. It is also undisputed that if the rent per month is

Rs.3,500/- or below the dispute between tenant and landlord is

governed by the Rent Control Act. However, application of Rent

Control Act is excluded by Section 32 if the building is aged less

than 15 years. According to Courts below, the demised

premises was aged less than 15 years. In this appeal the tenant

contends that it was aged more than 15 years. If it is more than

15 years, it is undisputed that the matter should go to Rent

Controller. Therefore, the point of difference between parties is

about the age of the building. It is here that lies the entire

dispute between the parties. From the evidence of tenant/DW.1

and the landlord/PW.1, the Courts below recorded that tenancy

commenced in the premises when it was a small room with RCC

roof. According to tenant, he came to occupy that small room

with RCC roof on 14.02.1994. Be it noted, by the time the suit

was filed it was no more a small room with RCC roof, but it is a

big building with multiple floors having RCC roof. The evidence

of tenant himself indicated that by the time the suit was filed

the premises was ground floor, first floor and second floor and

in ground and first floors he has been running commercial

Dr. VRKS, J S.A.No.1472 of 2018 & C.R.P.No.5696 of 2018

premises and in the second floor he has been living. Thus, the

premises that was there at the inception of the tenancy was

grown more than three folds. According to tenant, he spent

Rs.5,00,000/- and got it constructed. As he failed to adduce

any believable evidence, both the Courts below refused to accept

that contention. Both the Courts below also recorded that

tenant failed to show either about spending money or about

obtaining permission from the landlord to effect changes to the

tenanted premises. It was with those finding that contention

was negatived. Both the Courts below relied on Ex.A.5. This

was filed by the landlord. This was Municipal Approved plan

dated 04.02.1999. The evidence of landlord as PW.1 was fully

read and assessed by the trial Court and first appellate Court

and they recorded a finding that landlord applied for renovation

of the building and after obtaining the renovation in a span of

one year he removed the earlier structure in best part of it and

raised first floor, second floor and some structure in the form of

third floor and it is that property which is now in occupation of

the tenant. Going by that evidence Courts below held that the

renovation was more than 75% and by virtue of the principles

contained in Section 32 of the Rent Control Act, it was a

Dr. VRKS, J S.A.No.1472 of 2018 & C.R.P.No.5696 of 2018

substantially renovated building. They held that the substantial

renovation occurred in the year 1999 for this building and when

the suit was filed in the year 2009, it was aged only 10 years.

Since the building was aged only 10 years and thus less than 15

years, such building was excluded from the purview of Rent

Control Act and accordingly, they recorded a finding that Civil

Court had jurisdiction.

20. In this appeal learned counsel for appellant argues that

the evidence was misread by the Courts below and that the

money spent by appellant/tenant was rejected by the Courts

below without any reason. These contentions are factual in

nature and they are dependent on appreciation of evidence.

They do not indicate any substantial question of law for

determination of this Court. Be it noted, before the Courts

below tenant failed to show obtaining any permission from the

landlord to effect any changes to the building. He failed to show

any documents indicating his expenditure for renovation of the

building. He relied on the evidence of DW.2 who said that he

received fees from this tenant and made renovation work. Thus,

a tenant who has been running a commercial premises not only

failed to show any documents but also failed to show as to

Dr. VRKS, J S.A.No.1472 of 2018 & C.R.P.No.5696 of 2018

under what authority he was effecting renovation to the

building. It was not his building and he was not entitled to

meddle with it unless he was specifically authorized by the

landlord. Even if it is considered that he spent money that

would not change the legal effect of Section 32 of the Rent

Control Act. Whether the building was renovated by landlord or

it was renovated by tenant makes no difference as far as Section

32 of the Rent Control Act is concerned. Therefore, there is

absolutely no merit in what the appellant has been contending

here.

21. The first point he raised in this second appeal is incorrect

since the learned trial Court settled the issue and decided it

against the tenant and in favour of the landlord. Simply

because tenant filed R.C.C.No.32 of 2009 seeking permission to

deposit rents it can never be said to be a bar for a Civil Court to

try a suit that was validly instituted. Therefore, the first point

raised does not even hint at any question of law. The second

point raised is inappropriately raised. Both the Courts below

relying on Section 32 of the Rent Control Act held that the

building being renovated by more than 75% the exemption

clause in Section 32 of the Rent Control Act operated and

Dr. VRKS, J S.A.No.1472 of 2018 & C.R.P.No.5696 of 2018

therefore, Rent Controller had no jurisdiction and only Civil

Court had jurisdiction. The third point raised questions about

sufficiency of evidence in recording a finding by the Courts

below that the building was aged less than 15 years. There was

absolutely no worthwhile evidence from tenant to say anything

contrary to what was deposed by PW.1 and Ex.A.5. Thus, there

is no substantial question of law that arises. The fourth point is

once again repetition of what all that is mentioned earlier and

that does not indicate any substantial question of law.

22. In the above referred facts and circumstances and looking

at the evidence available on record and the findings recorded by

both the Courts below, this Court finds that the appellant failed

to show to the satisfaction of this Court that the litigation

placed here require formulation of any substantial questions of

law. Therefore, at the stage of admission, this appeal must be

dismissed.

23. The tenant preferred R.C.C.No.32 of 2009 seeking

permission to deposit the rents. He did it after he received

notices from the landlord for quitting the premises and after the

landlord filed O.S.No.892 of 2009. In those proceedings he

Dr. VRKS, J S.A.No.1472 of 2018 & C.R.P.No.5696 of 2018

failed to show that subsequent to 31.03.2009 he tendered rent

to the landlord, he failed to issue a notice to the landlord and he

failed to send a money order to the landlord. In the month of

November, 2009 he sent four money orders and filed R.C.C.

Finding no truth in what the tenant was alleging and finding

that Rent Controller had no jurisdiction and only Civil Court

had jurisdiction since the building was aged less than 15 years,

the learned trial Court dismissed his application. First appeal

before learned II Additional District Judge in R.C.A.No.6 of 2015

reaped the same result. Repeating his contentions in the

second appeal he preferred this revision. The Courts below

have considered the evidence placed before them and reached to

right conclusions. There was no fact found without basis of

evidence and there was no fact recorded excluding any evidence

from their consideration. There is nothing that falls for revision

at the hands of this Court. Therefore, the revision petition filed

by the tenant is without any merits and it must be dismissed.

24. In the result, both the Second Appeal and Civil Revision

Petition are dismissed. The appellant shall abide by the decree

and judgment passed by the trial Court and affirmed by the first

appellate Court and pay all the money that is due and vacate

Dr. VRKS, J S.A.No.1472 of 2018 & C.R.P.No.5696 of 2018

the premises and handover the vacant possession of it to the

landlord and he shall comply with these terms on or before

20.11.2023 failing which, the decree holder/landlord/

respondent here is entitled to execute the decree by taking

appropriate steps. There shall be no order as to costs.

As a sequel, miscellaneous applications pending, if any,

shall stand closed.

_____________________________ Dr. V.R.K.KRUPA SAGAR, J Date: 05.10.2023 Ivd

Dr. VRKS, J S.A.No.1472 of 2018 & C.R.P.No.5696 of 2018

THE HON'BLE JUSTICE Dr. V.R.K.KRUPA SAGAR

SECOND APPEAL No.1472 of 2018 and CIVIL REVISION PETITION No.5696 of 2018

Date: 05.10.2023

Ivd