M/S. Mithra Agencies vs Late Smt. A. Manikkamma Died Per ...
2022 Latest Caselaw 3091 Tel

            HON'BLE SMT. JUSTICE P.SREE SUDHA

                      I.A.No.1 OF 2022
                           IN/AND
                 APPEAL SUIT No.120 OF 2022

                           JUDGMENT

I.A.No.1 of 2022 in A.S. No. 120 of 2022 is filed by M/s.

Mithra Agencies presented by Mr. V. Suryanarayana, filed an

affidavit stating that he is an authorised signatory and he also

filed Ex.B1 authorisation and further stated that the trial Court

granted two months time to vacate the premises and the

judgment was passed on 29.03.2022. He preferred the copy

application with CA No. 7404 of 2022 on 31.03.2022 but the copy

of the judgment and decree was given on 16.05.2022. As the date

of eviction is going to complete on 29.05.2022, he requested for

stay of operation of the judgment.

2. The counsel for the respondents objected for stay in the

proceedings dated 02.06.2022, it was observed that the

execution proceedings is not filed and the counsel for the

respondents stated that he will not file the same till 21.02.2022.

Basing on the said representation on 02.06.2022 the matter is

adjourned to 06.02.2022. Even on that day as the counsel for the

respondents stated that he is not going to file execution petition

till 10.06.2022 it was listed on 09.06.2022.

3. Heard both the counsel. The counsel for the petitioner

contended that the suit for eviction was filed in OS No. 894 of

2015 by the landlord. He was defendant in the suit. The suit was

decreed, as such he preferred the appeal. During the pendency of

the appeal he is entitled for stay of the judgment and decree. The

plaintiffs filed the suit for mandatory injunction but the trial Court

ordered for eviction even the Court fee was also paid for the relief

of mandatory injunction. He mainly contended that Section 39 of

the Specific Relief Act (for short 'the Act') the mandatory injunction

can be granted under the Act to prevent the breach of the

obligation and to compel the performance of the certain acts and

hence, suit for eviction does not come under the Act and it is

barred under Section 41 (h) of the Act. He further stated that the

trial Court has not considered the notice issued under Section 106

of Transfer of Properties Act and also misconstrued Ex.A10 and

Ex.A12 and ought to have dismissed the suit for non-compliance

of the Section 108 (q) of Transfer of Properties Act. He further

stated that the suit is dismissed for non-joinder of other partners

and it is bad under Order 1 Rule 9 CPC. The trial Court erred in

relying upon Section 111 of the Transfer of Properties Act. As the

trial Court did not grant any relief of mandatory injunction the

matter is to be remanded back for fresh disposal.

4. The counsel for the petitioner stated that as he is having a

good case in the appeal and during the pendency of the appeal his

rights are to be protected. A perusal of the plaint shows that

plaintiffs asked for relief by ejecting the defendant from the suit

schedule property by granting mandatory injunction, but the trial

Court held that suit of the plaintiffs is decreed and he is entitled

for the eviction, as such the defendant has to deliver physical

possession from the suit schedule properties within two months

from the date of judgment and the Court also ordered for past

mesne profits with interest and gave liberty to the plaintiffs to file

an application for future mesne profits.

5. The counsel for the petitioner relied upon the decision of the

Hon'ble Supreme Court Cases 705 (2005) reported in ATMA

RAM PROPERTIES (P) LTD, VS. FEDERAL MOTORS (P) LTD.,

wherein it was held as follows :

"Depending on the facts of a given case, an appellate Court, while passing an order of stay may put the parties on such terms the enforcement whereof would satisfy the demand for justice of the party found successful at the end of the appeal".

6. The counsel for the petitioner also relied upon another

decision of the 2022 Hon'ble Supreme Court Cases 220

reported in Heera Traders Versus Kamla Jain wherein it was

held as follows :

"It is undoubtedly true that the existence of power under Order XLI Rule 5 of the CPC, is not to be confused with the exercise of its power by an Appellate Court. That there is power with the Appellate Court, may not enable it to order any unreasonable amount or reach a windfall to the landlord. The power is to be exercised on a careful consideration of the facts of each case".

7. He further relied upon another decision of the High Court

of Andhra Pradesh at Hyderabad 2006 (1) ALD 441 reported in

Manda Ram Reddy Vs. Government of A.P. and Others

wherein it was held as follows :

"Appellate authority must exercise sound discretion while passing the said order in appeal, if the stay is not granted, there may be situations when a remedy of appeal itself would be rendered futile".

8. A perusal of the plaint shows that the plaintiffs 1 to 6 are

joint owners and possessors of property in an extent of

admeasuring 1206.25 sq. Yards or 1008.54 Sq. meters situated at

Karmanghat Village, Saroornagar Mandal. Whereas defendant is a

partnership firm in the name of by M/s. Mithra Agencies and they

are carrying on business of Maruti vehicles show room/work shop.

The plaintiffs leased out the premises to the defendant under

registered lease deed vide document No.3842 of 2005, dated

21.04.2005 for ten years from 01.05.2005 to 30.04.2015 and the

amount of lease was fixed at Rs.60,000/- and it was increased

from year to year till the end of the lease year i.e. 01.05.2005 to

30.04.2015 was at Rs.1,04,500/-.

9. The main contention of the plaintiffs in the suit is that the

defendant after expiry of the lease agreement has not vacated the

premises. He also issued quit notice on 02.07.2015 and thus filed

for eviction by way of mandatory injunction and claimed mesne

profits past, present and future apart from the damages to the suit

schedule property.

10. Defendant admitted regarding the lease deed executed

between them for ten years but they sought for extension of the

lease. Admittedly, no extension of lease agreement was granted

by the plaintiffs, as such the petitioner herein has no right to

reside in the property as he was evicted under due process of law.

Petitioner counsel stated that possession of Tenant and

sufferance is entitled to protection until he is evicted by due

process of law. In the case on had learned counsel already filed

suit for eviction and it was decreed in his favour. Merely because

he preferred appeal on technical grounds in view of the order of

the trial Court on merits and the petitioner herein/tenant is

residing in the premises of the respondent without any

authorisation and as the lease deed was expired long back in the

year 2015. In view of the orders of the trial Court, he is no more

a tenant and he can be called as trespasser or encroacher. He

filed a memo stating that he paid arrears of rent to the

respondents and also filed statement to that effect even then

considering the above facts this Court finds that it is not just and

reasonable to stay the operation of judgment and decree dated

29.03.2022 as the petition is devoid of merits and is dismissed.

11. At this stage learned counsel for the appellant submitted

that in view of the orders passed in I.A nothing survives for

adjudication in the main appeal.

12. In the light of the above submission, this appeal is

dismissed as infructuous. However, tenant is granted 6 months

time to vacate the suit premises and no further time will be

granted.

___________________ P.SREE SUDHA, J 28th JUNE, 2022 Skj

HON'BLE SMT. JUSTICE P.SREE SUDHA

I.A. No. 1 of 2022 IN/AND APPEAL SUIT NO. 120 O 2022

Dated: 28.06.2022

Skj