Duppala Sitamahalakshmi Padmaja vs Mahmood Ali Hammami
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Telangana High Court

Duppala Sitamahalakshmi Padmaja vs Mahmood Ali Hammami on 10 April, 2024

     HON'BLE SRI JUSTICE LAXMI NARAYANA ALISHETTY

           SECOND APPEAL NOs.322 & 323 of 2023

COMMON JUDGMENT:

Second Appeal No.322 is filed challenging the judgment

and decree dated 04.11.2022 passed by the XI Additional District

and Sessions Judge, R.R. District at L.B.Nagar, in A.S.No.220 of

2018, confirming the judgment and decree dated 28.09.2018

passed by the II Addl. Senior Civil Judge, Ranga Reddy District at

L.B. Nagar, in O.S.No.1235 of 2015, which is filed for eviction of

the defendants from the suit schedule property and for mense

profits.

2. Second Appeal No.323 is filed challenging the judgment

and decree dated 04.11.2022 passed by the XI Additional District

and Sessions Judge, R.R. District at L.B.Nagar, in A.S.No.219 of

2018, confirming the judgment and decree dated 28.09.2018

passed by the II Addl. Senior Civil Judge, Ranga Reddy District at

L.B. Nagar, in O.S.No.357 of 2016, which is filed for perpetual

injunction against the defendants, who are the plaintiffs in

O.S.No.1235 of 2015.

LNA, J S.A.Nos.322 & 323 of 2023

3. Since the parties and the suit schedule property in both the

appeals are one and same, both appeals are heard together and

disposed of by this common judgment. For the sake of

convenience, the parties are referred to as they are arrayed before

the trial Court.

O.S.No.1235 of 2015:

4. Brief facts leading to filing of the present Second Appeal

are that the plaintiffs filed the suit in O.S.No.1235 of 2015 seeking

eviction of the defendants from the suit schedule property and

for mesne profits. It is contended that the plaintiff no.1 is the

absolute owner and possessor of property bearing no.8-4-52/2

(old No.7-7/5), admeasuring 624 square yards in Sy.No.187/2

sitauted at Bandlaguda Khalsa, Rajendranagar Mandal, Ranga

Reddy District; that plaintiff no.2 is the absolute owner and

possessor of property bearing no.l8-4-52/1 (old No.7-7/1),

admeasuring 313 square yards in Sy.No.187/2 of the locality;

plaintiff no.3 is the absolute owner and possessor of the property

bearing no.8-4-52/3/1 (old No.7-12), admeasuring 749 square LNA, J S.A.Nos.322 & 323 of 2023

yards in Sy.No.187/2 of the same locality, in total the plaintiffs

own 1686 square yards with a common boundary.

5. It is averred that the defendant no.1 is the tenant of the

plaintiffs for the entire extent of 1686 Sq.yds and the present

monthly rent is Rs.23,000/- per month exclusive of electricity

charges, property tax and other charges; that the defendant no.1

took the above mentioned property(hereinafter referred to as the

"suit schedule property") on rent from the plaintiffs in August,

2005 for opening a Petrol Pump on a monthly rent of Rs.20,000/-

for a period of 20 years with an enhancement of rent @ 15% for

every five years and accordingly, a registered lease deed bearing

document no.13986/2007 dated 23.08.2005 was executed; that as

per the terms of the lease deed, the monthly rent is payable on or

before 5th of every month and as per clause 19 of the lease deed,

if the lessee fails to pay the monthly rents, continuously for 3

months, the lessor has the right to terminate the lease.

6. It is averred that since the beginning of tenancy, the

defendant no.1 was not prompt in payment of monthly rents and

had committed willful default in payment of monthly rents from LNA, J S.A.Nos.322 & 323 of 2023

March 2015 to May 2015 @ Rs.23,000/-; that the defendant no.1

has also defaulted in payment of the municipal taxes. As the

defendant no.1 has willfully defaulted in payment of monthly

rents, the plaintiffs terminated the tenancy by issuing the notice

demanding the defendants to vacate the premises and handover

the same to or before 01.09.2015.

7. It is averred that on receipt of the legal notice, the

defendant no.1 got issued a reply notice with false and baseless

contents and the plaintiffs got issued a rejoinder dated 01.09.2015

contending that the plaintiffs have never furnished their bank

account details to the defendants and without any information

and without their permission, the defendant no.1 has deposited

monthly rents for March, 2015 to July, 2015 in their Bank account

through RTGS.

8. It is averred that in spite of the receipt of the termination

notice, the defendants have not vacated the suit schedule

property and as such, the plaintiffs filed the suit.

LNA, J S.A.Nos.322 & 323 of 2023

9. The defendant no.2 remained ex parte. The defendant no.1

filed her written statement and admitted the ownership of the

plaintiffs over their respective share of the suit schedule property,

her taking the suit schedule property on rent, the monthly rent of

the suit schedule property and the execution of the lease deed

and further contended that she was running IBP Co. dealership in

the suit schedule property. It is averred that the defendant no.1

has never defaulted in payment of monthly rents; that as the

defendant no.1 went to attend the Graduation Ceremony of her

daughter at USA, she had instructed her Manager Sri Jagan to

pay the rents during her absence; that the defendant no.1 has

deposited the monthly rents since March, 2015 in their bank

through RTGS into the plaintiffs' bank account, SBI, Barkas

Branch.

10. It is averred that with an intention to evict her from the suit

schedule property and to enhance the rents fraudulently, the

plaintiffs are intentionally avoiding receipt of the rents; that the

defendant no.1 filed a suit seeking perpetual injunction against

the plaintiffs herein vide O.S.No.104/2015 at Rajendranagar and LNA, J S.A.Nos.322 & 323 of 2023

by suppressing the said fact, the plaintiffs filed the suit without

any cause of action. Hence, the defendant no.1 prayed to dismiss

the suit.

11. The defendant no.3 filed his written statement contending

that there is no direct agreement between themselves and the

plaintiffs; that the 1st defendant is their dealer and after obtaining

the suit schedule property on lease from the plaintiffs, the

defendant no.1 had applied for dealership with IBP Co., and

thereafter, the land has been sub-leased to the defendant no.3 for

20 years; that the defendant no.3 is paying the monthly rents to

the defendant no.1 without any default and a petroleum retail

outlet is being run in the suit schedule property. Hence, the

defendant no.3 prayed to dismiss the suit.

O.S.No.357 of 2016:

12. The plaintiff in the above suit is the tenant and the

defendants are the owners of land to an extent of 1686 square

yards in Sy.No.187/2 of Bandlaguda Khalsa under Rajendranagar

Municipality, which is hereinafter referred to as 'suit schedule LNA, J S.A.Nos.322 & 323 of 2023

property'; that the plaintiff is running an BIP Co. petrol pump in

the suit schedule property since 10 years; that said suit schedule

property was obtained on lease on a monthly rent of Rs.20,000/-

in 2005 for a period of 20 years; that plaintiff is paying monthly

rents, electricity charges and municipal tax for the property

regularly without any default. On 10.06.2015, the defendants got

issued a false legal notice alleging that plaintiff has defaulted in

payment of monthly rents for March, 2015 to May, 2015 and

directed the plaintiff to vacate the suit schedule property by

01.09.2015; that plaintiff got issued a reply notice dated

14.08.2015.

13. It is averred that plaintiff had never defaulted in payment

of monthly rents; that with a mala fide intention of evicting her

from the suit schedule property, defendants refused to receive the

monthly rents; that plaintiff had deposited the monthly rents for

five months through RTGS in the account of defendants

on13.08.2015; that the business being run in the schedule property

is only the source of income of the plaintiff. It is averred that on

17.08.2015 and on 20.08.2015 the defendants tired to evict the LNA, J S.A.Nos.322 & 323 of 2023

plaintiff from the suit schedule property. As such, plaintiff filed

the present suit for perpetual injunction against the defendants.

14. The defendants filed written statement admitting the

tenancy between themselves and the plaintiff and contended that

plaintiff had committed default in payment of monthly rents

from March, 2015 to May, 2015, electricity charges and property

tax for the suit schedule property, and as such, defendants have

terminated the tenancy by issuing legal notice. It is averred that

defendants never furnished their account number to the plaintiff

and without their consent and permission, the plaintiff had

deposited the amount in their joint account. It is further averred

that plaintiff filed a false suit with a created cause of action and

finally, prayed to dismiss the above suit.

15. Basing on the above pleadings in the above suits, the trial

Court framed the following issues:

O.S.No.1235 of 2015:

i) Whether the plaintiffs are entitled for eviction of the defendants from the suit schedule property and for vacant possession of the same as prayed for ?

LNA, J S.A.Nos.322 & 323 of 2023

ii) whether the plaintiffs are entitled for recovery of legal notice charges of Rs.25,000/- from the defendants as prayed for ?

iii) Whether the plaintiffs are entitled for mesne proplertis against the defendants as prayed for ?

iv) To what relief ?

O.S.No.357 of 2015:

i) Whether the plaintiff is entitled for the relief of perpetual injunction restraining the defendants from interfering with the suit schedule property as prayed for ?

ii) To what relief ?

16. On behalf of the plaintiffs, P.W.1 was examined and Exs.A1

and A13 were marked. On behalf of the respondents, DWs.1 and

2 were examined and Exs.B1 to B47 were marked.

17. The trial Court, after considering the entire material

available on record, by common judgment and decree dated

28.09.2018, partly decreed the suit in O.S.No.1235 of 2015

directing the defendants to vacate and handover the suit schedule

property to the plaintiffs within a period of four months and

dismissed the suit in O.S.No.357 of 2016. The trial Court LNA, J S.A.Nos.322 & 323 of 2023

observed that the plaintiffs in O.S.No.1235 of2015 are at liberty to

file a separate application for ascertainment of the mesne profits.

18. Aggrieved by the judgment and decree dated 28.09.2018,

the defendant No.1 filed A.S.Nos.220 and 219 of 2018 before the

XI Additional District & Sessions Judge, Ranga Reddy District at

L.B. Nagar. The first Appellate Court, on re-appreciation of the

entire evidence and perusal of the material available on record,

dismissed A.S.Nos.220 and 219 of 2018, confirming the judgment

and decree passed by the trial Court, vide judgment and decree

dated 28.09.2018. Aggrieved by the judgment and decree dated

04.11.2022 passed in A.S.No.220 of 2018 and A.S.No.219 of 2018,

the appellant/defendant no.1 filed the present second appeals.

19. Heard Sri A.Rajashekhar Reddy, the learned counsel for the

appellant in both appeals and M/s.Shard Sanghi & Associates for

respondents 1 to 3 in both appeals and the learned counsel Sri

T.Sunil Kumar for the respondents 4 and 5 in SA No.322 of 2023.

Perused the record.

LNA, J S.A.Nos.322 & 323 of 2023

20. The learned counsel appearing for the appellant had

submitted that the trial Court, without proper appreciation of

evidence, had decreed the suits directing the appellant to vacate

and handover the vacant possession of the suit schedule property

to the respondents/plaintiffs within four months and that the

first Appellate Court erred in confirming the judgment and

decree passed by the trial Court. He contended that the trial

Court failed to appreciate the documentary evidence placed by

the appellant, especially Ex.B2 to B43-rental receipts admittedly,

passed by the respondents once in three to four months since it is

a practice followed from the beginning of the tenancy. He further

submitted that the trial Court and first Appellate Court ought to

have considered the fact that respondents having received the

rents, got their right of relief of eviction forfeited and that by

operation of Section 112 of Transfer of Property Act, no relief

could have been sought by the respondents by invoking clause-19

of ExA1-lease deed.

21. He submitted that as per Exs.A8-reply notice and A9-office

copy of rejoinder to the reply notice, there as no dispute raised by LNA, J S.A.Nos.322 & 323 of 2023

the respondents as regards payment of rents once in there months

which in fact amounts to waiver of contract established under

clause 19 by way of express consent of the parties. He submitted

that trial and first Appellate Courts ought to have considered that

appellant was in United States of America from 23.03.2015 to

05.05.2015 during which period, the Manager of Petrol Pump

tried to pay the rent to the respondents, but they avoided to

receive the same and having come to know the same, the

appellant remitted the rent for the said period through RTGS,

which clearly demonstrate the ill-motives of the respondents to

evict the appellant to gain wrongfully.

22. He further submitted that the appellant has invested lakhs

of rupees to establish the business over the schedule property for

tanks, elevators, sheds etc., and dozen families are dependent on

the said petrol bunk and therefore, ordering for eviction is not

easy since it is not a dwelling or commercial space; that in fact,

shifting of a petrol pump from one place to another is an

herculean task as the appellant would have to get various

permissions/licenses from various departments; that in the event LNA, J S.A.Nos.322 & 323 of 2023

the appellant is directed to evict abruptly, a grave and irreparable

loss and injury would be caused to the appellant apart from

financial loss and mental agony and finally prayed to allow the

appeal.

23. Per contra, the learned counsel appearing for the

respondents/plaintiffs submitted that the appellant and the

respondent entered into lease deed dated 23.08.2005 in respect of

the suit schedule property for a period of 20 years on a monthly

rent of Rs.20,000/-; that the appellant defaulted in payment of

rents from March, 2015 to May, 2015 and enjoying the possession

over the suit schedule property illegally without paying the rents.

He further contended that though the trial Court has granted four

months time to vacate and handover the vacant possession of the

suit schedule property, the appellant dragging the issue by filing

the appeals, which shows the attitude of the appellant towards

the respondents. The learned counsel further contended that both

the trial Court as well as the first Appellate Court have

appreciated the evidence and material on record and held

concurrently against the appellants and that no question of law LNA, J S.A.Nos.322 & 323 of 2023

much less substantial question of law arises for consideration in

this Second Appeal. Therefore, he prayed to dismiss the present

Second Appeal.

24. In support of the contention, learned counsel for

respondents relied on the following decisions:

(i) Premier Tyres Limited v. Kerala State Road Transport Corporation 1;

(ii) Ram Prakash v. Charan Kaur (Smt) and another 2;

(iii) Gangai Vinayagar temple and others v. Meenakashi Ammal and others 3;

(iv) Parwati Bai v. Radhika 4

25. A perusal of the record discloses that trial Court as well

as first Appellate Court concurrently held that the plaintiffs

are entitled for eviction of the defendants from the suit

schedule property and granted the relief in favour of the

plaintiffs.

26. The trial Court, upon considering the oral and

documentary evidence and the contentions of both the parties

1993 Supp (2) SCC 146

(1997) 9 SCC 543

(2009) 9 SCC 757

(2003) 12 SCC 551 LNA, J S.A.Nos.322 & 323 of 2023

in its judgment dated 28.09.2018 made the following

observations:

(i) As stated earlier the relationship of landlord and tenant between the plaintiffs and the defendant no.1, the period of lease and the quantum of rent are not in dispute. Admittedly, the rent was payable by 5th of every succeeding month. Perusal of Exs.B2 to B43 rent receipts show that the monthly rents were not paid by 5th of every succeeding month as agreed in Ex.A1-lease deed. Though Dw.1 and Dw.2 deposed that the rent amount was paid at the quantum and on the dates as requested by the plaintiffs as per their continence, there is no evidence to show that the plaintiffs requested to pay the rent in different amounts on different dated. Admittedly, the monthly rent for March, 2015 to May, 2015 was not paid on the due date. The contention of the defendant no.1 that she went to the USA to attend the graduation ceremony of her daughter, she entrusted the rent to Dw.2 for payment.

(ii) Admittedly, as per Clause 19 of Ex.A1 lease deed the lessor has the right to evict the lessee if she fails to pay the monthly rents for three consecutive months. As evident from the record the defendant no.1 has willfully defaulted in payment of monthly rents for March, 2015 to May, 2015. The cause shown by the defendant no.1 for non-payment of the rents till the issuance of the termination notice does not appear to be bona fide. Further, the plaintiffs have issued a valid notice terminating the tenancy and in spite of receiving the notice and giving reply to the same the defendant no.1 has not vacated the suit schedule property. As such, the plaintiffs are entitled for eviction of the defendants from the suit schedule property.

Hence, issue in O.S.No.1235 of 2015 is answered in favour of the plaintiffs and against the defendants.

LNA, J S.A.Nos.322 & 323 of 2023

iii) As discussed above as the defendant no.1 has willfully defaulted in payment of monthly rents and has not fulfilled the terms of the lease agreement, the plaintiffs have issued quit notice. Admittedly, the plaintiff nos.2 and 3 are not residing in India since more than 20 years. There is no explanation as to how the said persons went to the schedule property on the alleged date of interference. In view of the above discussion and in view of finding on issue no.1 in OS No.1235 of 2015, the defendant no.1 is not entitled for the equitable relief of injunction against the plaintiffs. Hence, issue no.1 in OS No.357 of 2016 is answered against the defendant no.1 and in favour of plaintiffs.

27. On appeal being filed, the first Appellate Court, being

the final fact-finding Court, re-appreciated the entire evidence

and the material available on record and observed as under:

(i) To a specific question in cross examination that whether the rents for the months of March, 2015 to May, 2015 was paid, DW.2 states plaintiff had requested him to keep the rent amount with him on the ground that he would come to him and collect the rent. Further, to a specific question DW.2 states that he knows that rent was to be paid by 5th of every month and plaintiff had requested him to keep the rents for the month of March, 2015 to May, 2015 with him as such he had not deposited the rent for such months in the bank of plaintiff and in the month of August, 2015 plaintiff had requested him to remit the rent amount that was with him for the months March, 2015 to May, 2015, thus the rent was remitted. This in fact is not nearer to truth for there is proof that plaintiff had requested him to keep the rent for the months of March, 2015 to May, 2015 and in the circumstance it is in comprehensible as to how and why plaintiffs would ask DW.2 to keep the rent with him and LNA, J S.A.Nos.322 & 323 of 2023

remit the same in the month of August. To a specific question further DW.2 state that, he had not got issued legal notice demanding plaintiff to receive the rents for the months of March, 2015 to May, 2015.

ii) Thus, the testimony of DW.2 also proves that there was default in payment of rents by defendant No.1 to plaintiffs in respect of suit schedule property. That apart as regards the specific infraction of Clause 19 of Ex.A1 is concerned, from the testimony of PW.1, DWs.1 & 2, it is proved that for the months March, 2015 to May, 2015 there was default in payment of rent by defendant No.1. Therefore, the finding of learned trial Court that defendant had committed default is perfectly legal, valid from the stand point of not only facts but also law. Therefore, it does not need indulgence of this Court, as such the A.S.No.220 of 2018 is devoid of merit and force and accordingly it is are liable to dismissal."

28. The learned counsel for appellant vehemently argued that

the trial Court decreed the suit without proper appreciation of the

evidence, and the first Appellate Court also erred in confirming

same. Learned counsel for appellant submitted that the

respondents have accepted the rents once in three to four months,

without any objection. Therefore, the respondents waived/

violated the clause 19 5 of the lease deed dated 21.08.2005, which

empower the respondents to terminate the lease deed in case of

failure on the part of the appellant in payment of rents for three

Cl.19. If LESSEE or IBP Co. Limited failed to pay the monthly rental continuously for three months the LESSORS have every right to terminate the agreement of lease.

LNA, J S.A.Nos.322 & 323 of 2023

consecutive months. The principal contention of the learned

counsel is that by operation of Section 112 of the Transfer of

Property Act, no relief could have been sought by the

respondents by invoking clause 19 of Ex.A1-lease deed in view of

forfeiting their right.

29. Per contra, learned counsel for respondents submitted that

the acceptance of rents one in three or four months does not

disentitle the respondents in invoking clause 19 of Ex.A1-lease

deed, which in fact, support the contention of the respondents

that it is clear default on the part of the appellant in payment of

rents. It is further contended that clause-19 empowers the

respondents/land owners to terminate the lease deed in case of

failure on the part of the appellant/tenant in payment of monthly

rents for three consecutive months. Therefore, the respondents/

landowners have right in terminating the lease deed in view of

default on the part of the appellant/tenant. Learned counsel for

respondents by relying upon the decision of the Hon'ble Apex

Court in Parwati Bai (supra) submits that the provisions of the

Rent Control Act has no application to the present case. The lease LNA, J S.A.Nos.322 & 323 of 2023

deed is governed by the Transfer of Property Act and the prayed

to dismiss the second appeal.

30. In Premier Tyres Limited (supra), the Hon'ble Supreme

Court held that where an appeal arising out of a connected suit is

dismissed on merits, the other cannot be heard and has to be

dismissed.

31. In Ram Prakash Kaur, the Hon'ble Supreme Court in

paragraph-21 laid emphasis on the recording of the High Court in

the said case, wherein it was held that where two connected suits

have been tried together and the findings in one of the suits have

become final in absence of an appeal, the appeal preferred against

the findings recorded in the other suit would definitely be barred

by the principles of res judicata this is the ratio decided by the

Apex Court in SLP (C) No.1523 of 1997.

32. In Gangai Vinayagar Temple, the Hon'ble Supreme Court

observed that in Vithal Yeswant Jathar v. Shikandarkhan

Mukhtumkhan Sardesai [AIR 1963 SC 385], it was held that it is well

settled that if the final decision in any matter at issue between the LNA, J S.A.Nos.322 & 323 of 2023

parties is based by a court on its decisions on more than one

point, each of which by itself would be sufficient for the ultimate

decision; the decision of each of these points operates as res

judicata between the parties. In paragraph 91, it was further held

that "the question whether a finding reached by a court of

competent jurisdiction in a previous suit between the same

parties should operate res judicata or not does not depend on the

reasons on which the finding is based."

32.1. In paragraph-93, it was held that "if the court reaching the

finding has the jurisdiction to do so, such a finding in the absence

of appeal, cannot be diluted merely on the ground that the

reasoning is weak or that the finding is unnecessary, even though

it was on a question which was directly and substantially in issue

between the parties."

33. Perused the record. The principal contention of appellant is

that the respondents waived their right on the ground of

acceptance of rents once in three to four months. The appellant

tried to rely upon the principle that in the light of acceptance of LNA, J S.A.Nos.322 & 323 of 2023

rents once in three to four months, the respondents are estopped

from invoking the clause 19 and terminating the lease deed.

34. It is appropriate to examine whether the acceptance of

rents in three to four months amounts to waiver of respondents

right to terminate the lease. The contentions of the appellant that

respondents accepted the rents once in three to four months

would, in fact, amounts to admitted default on the part of the

defendant herein. By relying upon the decision of Hon'ble Apex

Court, the learned counsel for respondents pointed out that the

concept of acceptance of rents irregularly by the landlord is a

relevant point for consideration in a matter under the Rent

Control Act, but not in the present case, to which the Rent

Control Act has no application.

35. In Parwati Bai (supra), the Hon'ble Supreme Court in

paragraph-6 held as under:

"The singular question to be examined in the present case is whether the tenancy was terminated in according to the provisions of Section 106 of the Transfer of Property Act. The receipt of the notice by the defendant is admitted in the written statement. The defendant has not raised any specific objection as to the validity of the notice. An objection as to invalidity or infirmity of notice under section 106 of the LNA, J S.A.Nos.322 & 323 of 2023

Transfer of Property Act should be raised specifically and at the earliest; else it will be deemed to have been waived even if there exists one. ..."

36. This Court meticulously gone through the written

statement filed by the appellant, in which the appellant herein has

taken specific stand that appellant had never defaulted and she

was prompt in payment of monthly rents. However, the appellant

did not raise the question of waiver of right of termination

provided in clause 19 of lease deed and further, no issue has been

framed by the trial Court to that effect. Therefore, there is no

factual foundation in support of the contention of the appellant

that acceptance of rents irregularly by the respondents amounts to

waiver of right of termination provided under clause 19 of the

lease deed dated 23.08.2005. In fact, there was no oral or

documentary foundation with regard to contention of waiver of

right of respondents to terminate the lease deed. The appellant

has, in fact, raised this ground for the first time in the appeal filed

before the first Appellate Court and the same ground is also

strenuously argued by the appellant herein. However, in the

absence of oral, documentary evidence and specific finding to that LNA, J S.A.Nos.322 & 323 of 2023

effect, this Court is not inclined to entertain the said contention of

the appellant in the present appeal, since the said contention

ought to have been raised at earliest point of time i.e., before the

trial and further, there is factual foundation to that effect.

37. In considered opinion of this Court, the contention raised

by the appellant is unsustainable, in fact, it would show that there

is default on the part of the appellant in payment of monthly

rents. Acceptance of rents once in three to four months by the

respondents would not amount to waiver of the right of

respondents to terminate the lease. It is rightly pointed out by the

learned counsel for respondents that concept of acceptance of

rents irregularly does not amount to waiver of right and that the

same may be a relevant point for consideration in a matter under

Rent Control Act, but not in the present case, to which the rent

control act has no application.

38. In considered opinion of this Court, the other grounds

raised and canvassed by the learned counsel for appellant need

not be gone into and same are irrelevant in the light of above

observation that respondents/landowners are entitled and LNA, J S.A.Nos.322 & 323 of 2023

empowered to terminate the lease deed. The learned counsel for

appellant failed to raise any other substantial question of law to

be decided by this Court in this Second Appeal. In fact, all the

grounds raised in this appeal are factual in nature and do not

qualify as the substantial questions of law in terms of Section 100

C.P.C.

39. In the light of conclusion of this Court on the substantial

questions of law, S.A.No.323 of 2023, in which the relief of

injunction was sought, requires no adjudication and is hit by res

judicata as held by the Hon'ble Apex Court in Premier Tyres

Limited (supra) and Gangai Vinayagar Temple (supra) and thus,

S.A.No.322 of 2023 is also liable to be dismissed.

40. A perusal of the records disclose that the trial Court and

first appellate Court concurrently held that the oral and

documentary evidence adduced by both the parties goes to show

that the fact of default in payment of rents for the months of

March, 2015 to May, 2015 by the defendant no.1 was proved.

Therefore, the trial Court came to conclusion that the

appellant/defendant no.1 committed default in payment of rents LNA, J S.A.Nos.322 & 323 of 2023

for three months and thus, decreed the suit of the respondents/

plaintiffs. The first Appellate Court specifically observed that the

finding of the trial Court with regard to default in payment of

rents is perfectly legal, valid not only on facts, but also in law and

thus, refused to interfere with the decree passed by the trial

Court.

41. It is well settled principle by a catena of decisions of the

Apex Court that in the Second Appeal filed under Section 100

C.P.C., this Court cannot interfere with the concurrent findings

arrived at by the Courts below, which are based on proper

appreciation of the oral and documentary evidence on record.

42. Further, in Gurdev Kaur v. Kaki 6, the Hon'ble Apex Court

held that the High Court sitting in Second Appeal cannot

examine the evidence once again as a third trial Court and the

power under Section 100 C.P.C., is very limited and it can be

exercised only where a substantial question of law is raised and

fell for consideration.

(2007) 1 Supreme Court Cases 546 LNA, J S.A.Nos.322 & 323 of 2023

43. Having considered the entire material available on record

and the findings recorded by the trial Court as well as the first

Appellate Court, this Court finds no ground or reason warranting

interference with the said concurrent findings, under Section 100

C.P.C. Moreover, the grounds raised by the appellant are factual

in nature and no question of law much less a substantial question

of law arises for consideration in this Second Appeal.

44. Hence, the Second Appeals fail and the same are

accordingly, dismissed at the stage of admission. The appellant is

directed to vacate and handover the vacant possession of the suit

schedule property to the respondents/plaintiffs within a period

of six months from today. There shall be no order as to costs.

Pending miscellaneous applications, if any, shall stand

closed.

__________________________________ LAXMI NARAYANA ALISHETTY, J Date: 10.04.2024 kkm LNA, J S.A.Nos.322 & 323 of 2023

HON'BLE SRI JUSTICE LAXMI NARAYANA ALISHETTY

SECOND APPEAL NOs.322 & 323 of 2023

Date: 10.04.2024

kkm