Voonna Mohana Rao, vs Kondapalli Rasachakravarthini,
2024 Latest Caselaw 8429 AP

Andhra Pradesh High Court - Amravati

Voonna Mohana Rao, vs Kondapalli Rasachakravarthini, on 13 September, 2024

    IN THE HIGH COURT OF ANDHRA PRADESH AT AMARAVATI

                SECOND APPEAL No.1349 OF 2012

Between:
Voonna Mohana Rao, S/o.Appalanarasayya,
Pan shop business, Opposite to Durga Mandir,
Old Bridge Road, Srikakulam Town and District.            ...       Appellant/
                                                                  defendant
                                  And
Kondapalli Rasachakravarthini, W/o.Jagan Mohana Rao,
Household duties, plot No.15, State Bank colony,
Srikakulam Town and District.                     ...           Respondent/
                                                                 plaintiff


DATE OF ORDER PRONOUNCED               :    13.09.2024

SUBMITTED FOR APPROVAL:

       HONOURABLE SRI JUSTICE V.GOPALA KRISHNA RAO

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



                                           _________________________
                                           V.GOPALA KRISHNA RAO, J
                                  2                               VGKRJ
                                                          SA 1349 of 2012




      * HONOURABLE SRI JUSTICE V.GOPALA KRISHNA RAO

               + SECOND APPEAL No.1349 OF 2012

                            % 13.09.2024

               SECOND APPEAL No.1349 OF 2012 :


Between:
Voonna Mohana Rao, S/o.Appalanarasayya,
Pan shop business, Opposite to Durga Mandir,
Old Bridge Road, Srikakulam Town and District.        ...       Appellant/
                                                              defendant
                                  And
Kondapalli Rasachakravarthini, W/o.Jagan Mohana Rao,
Household duties, plot No.15, State Bank colony,
Srikakulam Town and District.                     ...       Respondent/
                                                             plaintiff


! Counsel for Appellant          : Sri S.Lakshmi Narayana Reddy

^ Counsel for Respondent         : Sri J.Prabhakar
                                    (rep. by Sri Ramesh Babu Tatapudi)

< Gist:

> Head Note:

? Cases referred:

 2007 (4) ALD 137 (LB)

This Court made the following:
                                    3                                 VGKRJ
                                                              SA 1349 of 2012




     THE HON'BLE SRI JUSTICE V.GOPALA KRISHNA RAO

                 SECOND APPEAL No.1349 OF 2012

JUDGMENT:

-

This Second Appeal is filed aggrieved against the Judgment and decree in A.S.No.113 of 2009 on the file of District Judge, Srikakulam, dated 18.09.2012, confirming the Judgment and decree in O.S.No.187 of 2006 on the file of Principal Junior Civil Judge, Srikakulam, dated 30.07.2009.

2. The appellant herein is the defendant and the respondent herein is the plaintiff in the Original Suit No.187 of 2006 on the file of Principal Junior Civil Judge, Srikakulam.

3. The plaintiff initiated action in O.S.No.187 of 2006 on the file of Principal Junior Civil Judge, Srikakulam, with a prayer to vacate the defendant from the suit schedule shop and for recovery of arrears of rent.

4. The learned Principal Junior Civil Judge, Srikakulam, decreed the suit by ordering (i) the defendant to vacate the plant schedule property and to deliver the vacant possession to the plaintiff within three months from the date of decree, failing which plaintiff is at liberty to recover the possession through process of law; (ii) the defendant is directed to pay Rs.8,500/- to the plaintiff towards the arrears of rent from October, 2005 to February, 2006; and (iii) the defendant is directed to pay sum of Rs.1700/- per month towards damages for use and occupation from the date of suit to till May, 2008 and Rs.800/- per month from June, 2008 to till the date of delivery of possession. Felt aggrieved of the same, the unsuccessful defendant in the above said suit filed the aforesaid appeal 4 VGKRJ SA 1349 of 2012

before the first appellate Court. The learned District Judge, Srikakulam, dismissed the first appeal and confirmed the decree and judgment passed by the trial Court. Aggrieved thereby, the unsuccessful defendant/appellant approached this Court by way of second appeal.

5. For the sake of convenience, both the parties in the appeal will be referred to as they are arrayed in the original suit.

6. The case of the plaintiff, in brief, as set out in the plaint averments in OS.No.187 of 2006, is as follows:

The plaintiff is the owner of the suit schedule shop, she gave the suit schedule shop to the defendant on lease for 3 years from 12.11.2002 under a registered lease deed for use as a pan shop. It is agreed that the monthly rent for the period from 01.11.2002 to 31.10.2003 is Rs.1,400/-; for the next year at the rate of Rs.1,550/- and thereafter for the period of one year at the rate of Rs.1,700/-. The defendant has to pay monthly rent on the first day of every month and shall take receipt on payment of the same and that the defendant shall pay the electricity bills. The defendant never paid the monthly rents in time. He paid the rents in every month with abnormal delay. The defendant did not pay the rent from October, 2005 till date. The lease expired on 01.11.2005. The defendant neither paid the rents nor vacated the shop. The plaintiff herself and through her husband requested the defendant several times to vacate the shop after expiry of the lease time. The plaintiff got issued a notice to the defendant on 13.09.2005. The defendant received the notice, but neither give reply nor vacate the shop after expiry of the lease period. Hence, the plaintiff filed the suit for eviction and recovery of arrear rents and future rents.

5 VGKRJ SA 1349 of 2012

7. The brief facts of the written statement, filed by the defendant, are as follows :-

The defendant is the tenant under the plaintiff for the suit schedule shop. He took the shop under a registered rent deed dated 06.10.1999 executed by both the parties agreeing to pay the rent at the rate of Rs.1,000/- per month. He paid an amount of Rs.10,000/- as advance. Except the suit schedule shop, the defendant has no other source of livelihood. With an evil idea to vacate the defendant from the shop, the plaintiff hiked the monthly rent from Rs.1,700/- per month to Rs.2,500/- per month and demanded the same or else to vacate the shop without giving any opportunity to the defendant, as there is recent road widening programme. The suit schedule shop is very small, the rent paid by the defendant is very high. The proper rate of rent for the suit schedule shop is Rs.1,000/- per month. The defendant regularly paid the rents up to January, 2006, but later as there are disputes between the parties, the plaintiff refused to pass receipts. So, the defendant did not pay the rents from January, 2006. The defendant is ready to deposit the rents before the Court. The court has no jurisdiction to entertain the suit and the suit is not maintainable and the same is liable to be dismissed with costs.

8. On the basis of above pleadings, the learned Principal Junior Civil Judge, Srikakulam settled the following issues for trial:

1. Whether defendant committed any default in payment of rents?

2. Whether the plaintiff is entitled for recover the plaint schedule property?

3. Whether the plaintiff is entitled for recovery of Rs.8,500/- towards arrears of rent?

4. Whether the plaintiff is entitled for future rents?

6 VGKRJ SA 1349 of 2012

5. Whether the Court fee paid by plaintiff is not correct?

6. Whether this Court has no jurisdiction?

7. To what relief?

9. During the course of trial in the trial Court, on behalf of plaintiff PW1 is examined and Ex.A1 to Ex.A3 were marked. On behalf of defendant DW1 was examined and Ex.B1 to Ex.B5 were marked.

10. The learned Principal Junior Civil Judge, Srikakulam, after conclusion of trial, on hearing the arguments of both sides and on consideration of oral and documentary evidence on record, decreed the suit ordering (i) the defendant to vacate the plant schedule property and to deliver the vacant possession to the plaintiff within three months from the date of decree, failing which plaintiff is at liberty to recover the possession through process of law; (ii) the defendant is directed to pay Rs.8,500/- to the plaintiff towards the arrears of rent from October, 2005 to February, 2006; and (iii) the defendant is directed to pay sum of Rs.1700/- per month towards damages for use and occupation from the date of suit to till May, 2008 and Rs.800/- per month from June, 2008 to till the date of delivery of possession. Felt aggrieved thereby, the unsuccessful defendant filed the appeal suit in A.S.No.113 of 2009 before the District Judge's Court, Srikakulam, wherein, the following point came up for consideration.

Whether the judgment and decree under appeal are sustainable in law and on facts?

11. The learned District Judge, Srikakulam, i.e., first appellate judge, after hearing the arguments, answered the point, as above, against the defendant/appellant and in favour of the plaintiff/respondent and 7 VGKRJ SA 1349 of 2012

dismissed the appeal filed by the defendant. Felt aggrieved of the same, the unsuccessful defendant in OS.No.187 of 2006 filed the present second appeal before the composite High Court of Andhra Pradesh, Hyderabad.

12. When the matter was before the composite High Court of Andhra Pradesh, Hyderabad, the following substantial question of law was framed on 21.11.2003:

Whether the judgment and decrees of the Courts below are sustainable for eviction of the suit schedule shop in view of amendment made to Section 32 of the Andhra Pradesh Buildings (Lease, Rent and Eviction) Control (Amendment) Act, 2005 when the amended Section 32 (c) came into force w.e.f. 28.05.2005 which clearly contemplates that 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 Rs.3,500/- per month in the areas covered by the Municipal corporations in the State and Rs.2,000/- per month in other areas would come within the definition of tenant under Section 2 (ix) of Act 15 of 1960 and admittedly the suit was filed in the year 2006 i.e., after the amendment came into force and as such the decree passed by the trial Court in O.S.No.187 of 2006 dated 30.07.2009 which was confirmed in A.S.No.113 of 2009 dated 18.09.2012 are nullity?

13. Heard Sri S.Lakshmi Narayana Reddy, learned counsel for appellant/defendant and Sri Ramesh Babu Tatapudi, learned counsel, 8 VGKRJ SA 1349 of 2012

representing Sri J.Prabhakar, learned senior counsel for respondent/plaintiff.

14. Learned counsel for the appellant/defendant would contend that both the Courts below erred in decreeing the suit filed by the plaintiff and he would submit that the Court below ought to have dismissed the suit as the suit itself is not at all maintainable, as the Civil Court has no jurisdiction to entertain the suit as the alleged rent was Rs.1,700/- per month for the schedule shop and as such the plaintiff should have approached the rent controller under Rent Control Act and on that ground alone the trial Court ought to have dismissed the suit. He would further contend that both the Courts below ought to have seen that the civil Court has no jurisdiction to entertain the suit by virtue of amendment made to Section 32 i.e., introducing clause C of the Act and he would further contend that the appeal may be allowed by setting aside the decree and judgment passed by the first appellate Court and the suit filed by the plaintiff before the trial Court has to be dismissed. With these submissions the learned counsel would contend that the judgment of the District Judge, Srikakulam in A.S.No.113 of 2009 is to be set aside by dismissing the suit of the plaintiff.

15. Per contra, the learned counsel appearing on behalf of the plaintiff would contend that the plaintiff sought the relief of eviction of defendant and arrears of recovery of rent and that the suit before the trial Court is maintainable. He would further contend that there is no substantial question of law in the second appeal. With these submissions, the learned counsel appearing for respondent in the second appeal would contend that the second appeal is liable to be dismissed.

9 VGKRJ SA 1349 of 2012

16. The undisputed facts are the plaintiff is the owner of the suit schedule shop and she let out the said shop to the defendant on payment of rent under a registered lease deed and by the date of filing of the suit, the rent in respect of plaint schedule shop is Rs.1,700/- per month. There is no dispute about the relationship of landlady and tenant in between the plaintiff and defendant and the quantum of rent is also not in dispute. The plaintiff also mentioned the rental value in the valuation slip attached to the plaint. It is also not in dispute that the plaintiff instituted a suit before the trial Court for the relief of eviction of the defendant from the plaint schedule shop and also for recovery of arrears of rent and the said suit is filed before the trial Court on 02.03.2006.

17. The learned counsel for appellant would contend that the civil Court has no jurisdiction to entertain the suit as the alleged rent was Rs.1,700/- per month for the suit schedule shop and as such, the plaintiff should have approached the rent controller under Rent Control Act and he further contend that by virtue of amendment made to Section 32 (c) of the Act, the defendant is having protection under Rent Control Act and the remedy open to the plaintiff is to approach the rent controller for seeking necessary relief.

18. As stated supra, the relationship of landlady and tenant is not in dispute, the quantum of rent of Rs.1,700/- per month in respect of plaint schedule shop as on the date of filing of the suit is also not in dispute. The suit was filed by the plaintiff before the trial Court at Srikakulam on 02.03.2006, seeking relief of eviction of the defendant from the suit schedule shop and also recovery of arrears of rent. Admittedly, by the date of institution of suit, Srikakulam is a Municipality. Now the crucial 10 VGKRJ SA 1349 of 2012

point involved in the second appeal has to be decided is whether the civil Court is having jurisdiction to try the suit?

19. The legal position in this regard is no more res integra, and the same has been well settled by Larger Bench of this Court in Ramvilas Bajaj vs. Ashok Kumar and another1. In the aforesaid case, the Larger Bench of this Court held as follows:

"It is true that extending the protection of amended Section 32 (c), to cases where decrees for eviction or recovery of possession have already been passed and appeals/ revisions are pending there against, would inevitably result in all pending actions, in which landlords have applied for possession of their buildings let out to tenants, being set at naught on the ground that the civil court lacks inherent jurisdiction to try the suits or entertain petitions for execution of decrees. In this context it is well to remember yet another rule of construction that, when the words of the statute are clear, plain and unambiguous, Courts are bound to give effect to that meaning, irrespective of the consequences. (Guruddevdatta's case (supra) ).

WE answer the reference, declaring that:-

i. with effect from 28-5-2005, when the amended Section 32 (c) came into force, persons, by whom rent payable for a building does not exceed Rs.3,500/- p.m. within Municipal corporations of the State and does not exceed Rs.2,000/- p.m. in other areas, would come within the definition of "tenant" under section 2 (ix) of Act 15 of 1960.

2007 4 ALD 137 (LB) 11 VGKRJ SA 1349 of 2012

ii. even if such persons have suffered a decree for eviction prior thereto, they are entitled for the protection of act 15 of 1960 provided they continue in possession of the building.

iii. after 28-5-2005, such tenants cannot be evicted in execution of a decree in view of the protection conferred on them by Section 10 (1) of Act 15 of 1960.

iv. after the amended Section 32 (c) came into force, with effect from 28-5-2005, the civil court must be held to have become coram non- judice, not to have jurisdiction to pass a decree of eviction in respect of buildings the rent of which in areas within Municipal Corporations of the state does not exceed Rs.3,500. 00 p. m. and in other areas not exceeding Rs.2,000. 00 p. m. and its proceedings, resulting in the decree, a nullity. v. even if at the time of institution of the suit, or when a decree for eviction was passed, the amended section 32 (c) was not in force, but was introduced during the pendency of the appeal a tenant, who continues to remain in possession of a building whose rent is below the limits prescribed in the amended section 32 (c), for being exempted from the provisions of the Act, is entitled for the protection of Act 15 of 1960, more particularly section 10 (1) thereof, and the appellate Court is divested of its jurisdiction to pass a decree of eviction".

The ratio laid down in the aforesaid case law is squarely applicable to the present facts of the case. Admittedly, the suit is instituted on 02.03.2006 by the plaintiff before the trial Court with a specific plea that the suit schedule shop was let out to the defendant under a registered lease deed and the lease has to be commenced from 12.11.2002 and the lease period is 3 years and monthly rent as on the date of institution of suit is Rs.1,700/-. The admitted rent as per the case of the both the 12 VGKRJ SA 1349 of 2012

parties is also Rs.1,700/- per month as on the date of institution of the suit. As stated supra, the suit is instituted on 02.03.2006 before the Principal Junior Civil Judge's Court, Srikakulam for eviction of the defendant from the plaint schedule shop. Therefore, the civil Court has no jurisdiction to decide the suit. As seen from the entire record, the appellant/defendant specifically pleaded in the written statement itself that the civil Court has no jurisdiction to entertain the suit and the suit is not at all maintainable under law. But unfortunately, no issue is framed by the learned trial Judge on the jurisdiction aspect and decreed the suit on 30.07.2009 by which date the amended Act came into force. As stated supra, the amended act came into force with effect from 28.05.2005, the Larger Bench of this Court delivered a decision on 30.04.2007. It clearly goes to show that the learned trial Judge by ignoring the amended act and also not taking into consideration of Larger Bench decision of this Court, decreed the suit filed by the landlady against the tenant and order eviction of the defendant and directed the defendant to deliver the suit schedule property to plaintiff and therefore, the learned trial Judge committed a patent error. It is also relevant to say the amended act came into force on 28.05.2005. As stated supra, a batch of the second appeals were disposed of by the Larger Bench of composite High Court of A.P. on 30.04.2007. By virtue of amended Act came into force on 28.05.2005, the civil Court jurisdiction is ousted. Therefore, the present suit proceedings resulting the decree is nullity.

20. As stated supra, the suit is instituted at Srikakulam Municipal limits by landlady against the tenant on 02.03.2006 and the admitted rent is Rs.1,700/- per month. As noticed supra, SECTION 32(C) OF THE AMENDED ACT CAME INTO FORCE WITH EFFECT FROM 28.05.2005, IN VIEW OF THE AMENDED PROVISION OF SECTION 32(C) OF THE ACT, 13 VGKRJ SA 1349 of 2012

THE CIVIL COURT MUST BE HELD TO HAVE BECOME CORAM NON- JUDICE AND CIVIL COURT IS NOT HAVING JURISDICTION TO PASS A DECREE OF EVICTION IN RESPECT OF PLAINT SCHEDULE SHOP. Therefore, the principal Junior Civil Judge, Srikakulam, has no jurisdiction to pass an order of eviction of the defendant. An appeal is filed before the first appellate Court i.e., Principal District Judge, Srikakulam in the year 2009. The jurisdiction aspect is also not touched by the learned first appellant Judge i.e., Principal District Judge, Srikakulam in her judgement.

21. The learned counsel for plaintiff would contend that the defendant pleaded that he spent an amount of Rs.35,000/- for repairs to the roof of the shop and that the amended Act of Section 32(c) does not applicable to the present facts of the case. In the case on hand, a specific suggestion was put forth by the defendant in cross examination to the plaintiff that the defendant invested an amount of Rs.35,000/- for repairing of the shop, the said suggestion was denied by the plaintiff. The defendant admitted in his evidence in cross examination itself that he did not obtain any written permission from the landlady or from the husband of landlady for repairs of the shop. Admittedly, there is no evidence on record that the defendant spent an amount of Rs.35,000/- towards repairs of the shop. It is not the specific case of the plaintiff that the defendant spent an amount of Rs.35,000/- towards repair of the suit schedule shop. It is also not the specific case of either the plaintiff or the defendant that the suit schedule shop is renovated.

22. The learned counsel for appellant would contend that the present suit is filed for eviction and recovery of arrears of rent, therefore, the civil Court is having jurisdiction to try the suit. I am unable to accept the above contention of the learned counsel for respondent, once, since there was a 14 VGKRJ SA 1349 of 2012

specific provision itself in Rent Control Act for recovery of arrears of rent i.e., Section 11 of Andhra Pradesh Buildings (Lease, Rent and Eviction) Control Act, 2005, therefore, approaching the civil Court for recovery of arrears of rent is meaningless and the civil suit is not at all maintainable.

23. For the aforesaid reasons, the trial Court committed a grave error in decreeing the suit and the first appellate Court also committed error in confirming the decree and judgment passed by the trial Court. Therefore, both the judgments and decrees of the Courts below are liable to be set aside. For the aforesaid reasons, the suit filed by the plaintiff is not at all maintainable, because jurisdiction of civil Court is ousted in view of the bar under Section 32(c) of Andhra Pradesh Buildings (Lease, Rent and Eviction) Control (amendment) Act, 2005.

24. Having regard to the overall facts and circumstances of the case, I am of the considered view that the learned trial Judge and first appellate Judge have not rightly appreciated the evidence and legal principles in a proper manner. Therefore, the findings of both the Courts below are not held in accordance with law and both the decrees and judgments of the trial Court i.e., Principal Junior Civil Judge's Court, Srikakulam and first appellate Court i.e., District Judge's Court, Srikakulam are liable to be set aside. Therefore, there are merits in the present appeal.

25. In the result, the second appeal is allowed and the decrees and judgments passed by the trial Court and first appellate Court are liable to be set aside, consequently, the suit in O.S.No.187 of 2006 on the file of Principal Junior Civil Judge, Srikakulam is liable to be dismissed. Considering the circumstances of the case, each party do bear their own costs in the suit and appeals.

15 VGKRJ SA 1349 of 2012

Miscellaneous petitions, if any, pending in this appeal shall stand closed.

_________________________ V.GOPALA KRISHNA RAO, J Dated: 13.09.2024 Sj 16 VGKRJ SA 1349 of 2012

HON'BLE SRI JUSTICE V.GOPALA KRISHNA RAO

13.09.2024 sj