Telangana High Court
Shaik Mohammed vs Sajid Mazheruddin Quadri on 5 February, 2024
HON'BLE SRI JUSTICE LAXMI NARAYANA ALISHETTY
SECOND APPEAL No.486 of 2023
JUDGMENT:
Challenging the validity and legality of the judgment and
decree, dated 03.10.2023, passed in A.S.No.59 of 2023 on the file
of the Court of IX Additional Chief Judge, City Civil Court,
Hyderabad, confirming the judgment and decree dated 31.01.2023
passed by the VII Junior Civil Judge, City Civil Court, Hyderabad,
in O.S.No.3696 of 2021, the present Second Appeal is filed.
2. The appellants are the defendants and the respondent is the
plaintiff in the suit. For convenience, hereinafter the parties are
referred to as they are arrayed in the suit.
3. The facts of the case in brief, which led to filing of the
present Second Appeal, are that the plaintiff instituted the suit
against the defendants seeking to vacate and hand over the
possession of 'A' and 'B' schedule properties and to award future
damages @ Rs.50,000/- per month for A-schedule property and
Rs.70,000/- per month for B-schedule property from the date of
filing of the suit till the delivery of possession.
LNA, J
3.1. In the plaint, it is averred that the plaintiff is the absolute
owner and landlord of 'A' and 'B' schedule properties. Defendant
No.1 obtained A-schedule property on lease for running business
for eleven (11) months on a monthly rent of Rs.20,000/- and a
rental agreement was entered on 15-08-2020 and thus, the tenancy
ends on 14-07-2021 and the deposit of Rs.2,00,000/- was kept with
plaintiff. Defendant No.2, who is the wife of defendant No.1,
entered into lease deed in respect of B-schedule property on a
monthly rent of Rs.39,360/- through rental agreement dated 15-08-
2020. It was further averred that the defendants agreed to pay rent
on or before 15th of every month and defendants No.1 used to pay
consolidated rent of Rs.60,000/-, excluding electricity charges, for
both the plaint 'A' and 'B' schedule properties and the plaintiff
used to issue receipts therefor.
3.2. It was further averred that the defendants paid rent up to
March, 2021, through bank transfer, but failed to pay the rent for
the let out premises from April, 2021 in spite of several requests.
3.3. It was also averred that the defendants violated Clause-8 of
the rental agreement and sublet a part of the schedule premises to
LNA, J
one Mir Azeemuddin and the defendants filed W.P.No.12897 of
2021 before Hon'ble High Court on baseless allegations to
overcome the willful default in payment of rents. As the defendants
violated the terms of the rental agreements, the plaintiff has given
one month time to the defendants to vacate the subject premises.
3.4. Further, it was averred that the plaintiff got issued legal
notices on 07-08-2021, which were served on the defendants, for
which they issued common reply notice dated 22-07-2021 on false
grounds and the plaintiff issued rejoinder on 07-08-2021. Since the
defendants failed to vacate the schedule premises, the suit was filed
seeking the relief of eviction and for damages.
4. It is to be noted here that the trial court observed that the
defence of the defendants in the main suit was struck off on
04-08-2022, as such the defence of the defendants was not taken
into consideration by the trial Court and the first Appellate Court.
5. To substantiate the case, on behalf of plaintiff, the plaintiff
got himself examined as P.W-1 and marked Exs.A-1 to A-8.
6. The trial Court, upon considering the oral and documentary
evidence and the contentions of both the parties, vide judgment
LNA, J
dated 31.01.2023, observed that though there is some infirmity in
the deposition of the plaintiff as regards the accurate details of the
extent of the let out properties to the defendants, all other
parameters necessary for enforcement of the right to evict the
defendants from their illegal occupation of plaint 'A' and 'B'
schedule properties were fulfilled. Accordingly, the trial Court held
that the plaintiff is entitled for recovery of possession of the suit
schedule properties by evicting the defendants.
6.1. Further, with respect to the claim for damages, the trial
Court on consideration of the material available on record,
observed that the plaint is devoid of details of default period in
paying the rents and there is no specific plea with respect to the
quantum of loss caused to the plaintiff and accordingly, held that
the plaintiff is not entitled for damages as prayed for.
6.2. In light of the above discussion, the trial Court partly
decreed the suit, directing the defendants to vacate and hand over
vacant possession of the suit schedule properties to the plaintiff
within a period of two months from the date of the said judgment.
LNA, J
7. The first Appellate Court, being the final fact-finding
Court, re-appreciated the entire evidence and the material available
on record and observed that the conditional stay order granted by it
was not complied with by the defendants within the stipulated time
and that the challan produced by the defendants show that the
deposit of the amount was made on 02.06.2023 and it appears that
it was made after vacating the stay order granted in the appeal.
That apart, the first Appellate Court also observed that though there
is slight difference over the actual extent of the schedule properties,
it does not have any bearing on the suit which is filed for eviction.
7.1. The first Appellate Court further observed that the plaintiff
being the owner of the schedule properties has issued legal notices
to the defendants stating that he is intending to terminate the
tenancy of the defendants and to evict them from the suit schedule
properties. Admittedly, the defence of the defendants was struck
off before the trial Court. It was further observed that the
defendants have committed default in payment of rents. By
observing so, the first Appellate Court dismissed the appeal
upholding the judgment of the trial Court.
LNA, J
8. Heard Sri D.Y.N.L.N.Charyulu, learned counsel for the
appellants, and Sri A.Najeeb Khan, learned counsel for the
respondents. Perused the record.
9. A perusal of the record discloses that both the trial Court and
the first Appellate Court concurrently held that the plaintiff is
entitled for eviction of the defendants from the suit schedule
properties, but, however, negatived his claim for damages.
10. Learned counsel for appellant argued that the trial Court
decreed the suit without proper appreciation of the evidence and
the first Appellate Court also committed an error in confirming the
judgment and decree passed by the trial Court.
11. However, learned counsel for appellant failed to raise any
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.
12. It is well settled principle, by a catena of decisions of the
Apex Court, that in the Second Appeal filed under Section 100
LNA, J
C.P.C., this Court cannot interfere with the concurrent findings on
facts arrived at by the Courts below, which are based on proper
appreciation of the oral and documentary evidence on record.
13. Further, in Gurdev Kaur v. Kaki 1, the 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 fall for
consideration.
14. 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 substantial question of law
arises for consideration in this Second Appeal.
15. Hence, the Second Appeal fails and the same is accordingly
dismissed at the stage of admission. No costs.
(2007) 1 Supreme Court Cases 546
LNA, J
16. Pending miscellaneous applications, if any, shall stand
closed.
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JUSTICE LAXMI NARAYANA ALISHETTY
Date:05.02.2024
dr
