C P Sridhar Another vs C V Surenderanath 4 Others
2022 Latest Caselaw 509 Tel

               HON'BLE SMT. JUSTICE P.SREE SUDHA

            CIVIL MISCELLANEOUS APPEAL No.996 of 2014

                               JUDGMENT

1. Aggrieved by the order dated 09.09.2014 of the learned XXVIII

Additional Chief Judge, City Civil Court, Secunderabad, in A.S.No.5

of 2010 reversing the judgment dated 05.10.2009 in O.S.No.562 of

2007 on the file of the learned III Senior Civil Judge, City Civil Court,

Secunderabad, the plaintiffs preferred this appeal.

2. The appellants herein are the plaintiffs and the first and

second respondents herein are the defendants in O.S.No.562 of 2007.

For the sake of convenience, the parties hereinafter are referred to as

they are arrayed in the said suit.

3. The substantial questions of law raised by the appellants are as

follows:

i) Whether the Appellate Court erred in remanding the matter (against the settled legal principle) for the purpose of framing of additional issue regarding issuance, service and validity of statutory notice and for recording fresh evidence, if necessary, on that aspect, when there is evidence let in by both the sides fully knowing the rival case and also finding is arrived at by the trial Court relating thereto on page 4 of the judgment?

ii) Whether the Appellate Court failed to take into consideration the aspect that evidence to be let in by the parties on Issue No.1 i.e. 'whether the plaintiffs are entitled to possession of the suit schedule property from the defendants' includes evidence on the aspect regarding issuance, service and validity of the quit notice?

iii) Whether the Appellate Court failed to take into consideration the true purport of Ex.A.1 & A.2 to A7 & A9 keeping in view the basic presumption that arises as to proper service under Section 114 of the Evidence Act, 1872?

4. O.S.No.562 of 2007 is filed by the landlords/plaintiffs against

the tenants/defendants seeking eviction from the suit schedule

property and for arrears of rent. It was decreed by judgment dated

05.10.2009. Aggrieved by the same, the defendants in the suit

preferred an appeal and the appellate Court by its order dated

09.09.2014 allowed the appeal and remanded the matter to the trial

Court to frame the following issue as an additional issue.

'Whether the plaintiffs have issued statutory notice to the defendants, if so, whether it is valid and served on the defendants?'

5. Aggrieved by the said judgment, this Civil Miscellaneous Appeal

is preferred.

6. Learned counsel for the plaintiffs would contend that the

plaintiffs have stated in the plaint that they got issued notice of

termination dated 07.07.2007 under Document No.1 through

registered post with acknowledgment due and also under certificate

of posting as per Document Nos.2 to 4. As the acknowledgment was

not received from the postal department, they addressed a letter

dated 30.07.2007 to the postal department under Document No.5

and that the postal department informed that the matter is under

consideration as per Document No.6. Ultimately the postal

department issued certificate dated 31.07.2007 saying that the

registered covers were delivered to the addresses on 11.07.2007 itself

as per Document No.7. Learned counsel for the plaintiffs would

further contend that in spite of receipt of the said notice, the

defendants have not vacated the premises and not paid the arrears of

rent and as such they filed the suit for eviction.

7. The defendants in their written statement denied issuance of

notice under Section 106 of the Transfer of Property Act and

requested the Court to dismiss the suit on that ground alone. They

would further contend that the documents dated 07.07.2007 and

31.07.2007 are fabricated.

8. The trial Court though failed to frame an issue, considered the

entire evidence on record and gave finding in the tenth paragraph

middle of the judgment saying that 'Ex.A1 is the notice terminating the

lease and it was duly served on the defendant as certified by the

postal department. As such the lease was validly terminated by the

plaintiff and there is no tenable ground on behalf of defendant to

continue in the suit schedule property.'

9. Learned counsel for the appellants relied upon the case law

reported in JEGANNATHAN V/s. RAJU SIGAMANI1 with regard to

maintainability of the appeal. But the learned counsel for the

respondents fairly conceded that they are not disputing the

maintainability of the appeal. Learned counsel for the appellants also

cited a case law reported in T.KRISHNA GOUD V/s. SABIHA

KAMALUDDIN2, this Court held in paras 9 and 10 as follows:

'Order 14, Rule 5 C.P.C. enables the Court to amend issues or frame issues and also to strike out any issue that appears to be wrongly framed or introduced before passing a decree. Any party to the suit can legitimately raise objection complaining non-

AIR 2013 SC 3788

(2010) 6 ALD 153 (DB)

framing of a necessary issue or framing a wrong issue or to framed additional issues. The Court is amply empowered to consider any such objections and incorporate such issues as are found to be necessary and correct. If no such objection is taken but invite judgment, it must be held that such party has acquiesced of the judgment. Acquiescence is acceptance of a person, who, though aware of a defect or irregularity of a legal proceeding, does not raise any objection to take a chance or decision in his own favour and will be disentitled to object the same at a later stage, notwithstanding the duty of the Court to frame the issues as per Order XIV Rule1. Acquiescence disables the disputant. It is manifest that both the parties having taken the respective stands on sub-lease and fully conscious of the controversy, adduced evidence on the said controversy. The defendant relied on Exs.B.1 to B.3 which related to the litigation involving HPCL and sought to resist the suit reliefs. The defendant even though sought to contend that he sold away the entire land, except oral statement, no proof was filed to support the alleged sale. In the circumstances, it cannot be said that prejudice has been caused to the defendant by not framing the issue relating to sub-lease.'

10. Learned counsel for the appellant would contend that mere

non-framing of the issue is not fatal because the appellants have

already stated about issuance of the notice in the plaint and it was

denied by the defendants in their written statement and the said

aspect is within the knowledge of both the parties, to which plaintiffs

have already adduced evidence, which was considered by the trial

Court and gave its finding on it, and thus, no prejudice would cause

to the respondents herein, and hence, remand of the matter on that

sole ground is not proper and just.

11. Per contra, learned counsel for the respondents would submit

that mere filing of Exs.A.1 to A.7 will not prove the service of notice

against the defendants since it is a statutory notice to be served

before filing of the suit and that it is for the plaintiffs to prove the

same before the Court. He would further argue that the plaintiffs

failed to examine the postal authorities to substantiate the same, and

thus, the appellate Court rightly remanded the matter and it needs

no interference.

12. Perusal of the evidence on record and the documents filed

before the trial Court would show that notice was issued by the

appellants herein under Ex.A.1. When the acknowledgments and

covers are not received, the office of the appellants counsel addressed

a letter to the Assistant Director of Postal Department on 30.07.2007,

to which the department gave reply stating that it is under

consideration and later under Ex.A7 the department clearly informed

that 'the article under reference was delivered to the addressee on

11.07.2007'. The notices were served to the correct address of the

defendants. To prove the same, the appellants filed copy of the notice

and the postal acknowledgements. Further, the plaintiffs also sent

notice under Certificate of Posting and as such they filed Exs.A.6 and

A.7 correspondence made by the postal department to substantiate

their version.

13. Considering the above factors, the trial Court held that there

was proper issuance of notice, though the issue was not framed

separately. The appellate Court without going into the above aspects

and considering the arguments of the respondents herein simply

remanded the matter by observing that 'since absence of such issue

obviously misguides the parties in leading the evidence in respect of

the crucial aspect'. From the record it is apparent that absolutely

there is no misguidance between the parties. The respondents herein

have not adduced any contra evidence. They have not even taken

objection regarding non-framing of issue before the trial Court. The

appellants herein sought for clarification from the postal department

with regard to delivery of the notice and filed before the Court under

Ex.A.7. As the notice was issued by the appellants herein under

Ex.A.1 and it was served upon the respondents under Ex.A.7, the

argument of the learned counsel for the respondents merits no

consideration. As this appeal is preferred on the sole ground,

considering the arguments of both the counsel, this Court finds that

this appeal deserves to be allowed.

14. For the foregoing discussion, this appeal is allowed and the

order dated 09.09.2014 of the learned XXVIII Additional Chief Judge,

City Civil Court, Secunderabad, in A.S.No.5 of 2010 is set aside and

confirmed the judgment in O.S.No.562 of 2007 on the file of the

learned III Senior Civil Judge, City Civil Court, Secunderabad. There

shall be no order as to costs.

15. Pending miscellaneous petitions, if any, shall also stand closed

in the light of this final judgment.

____________________ P.SREE SUDHA, J.

9th FEBRUARY, 2022.

PGS