Telangana High Court
M/S. Quality Car Care, vs Mrs. Kiran Dutt, on 9 January, 2024
HON'BLE SRI JUSTICE LAXMI NARAYANA ALISHETTY
SECOND APPEAL No.539 of 2023
JUDGMENT:
This Second Appeal is filed challenging the judgment and
decree dated 30.10.2023 passed by the I Additional District Judge,
Medchal-Malkajgiri District at Kushaiguda, in A.S.No.145 of 2022
(old A.S.No.72 of 2021), confirming the judgment and decree
dated 08.09.2021 passed by the Principal Senior Civil Judge,
Ranga Reddy District at L.B. Nagar, in O.S.No.1432 of 2019.
2. For the sake of convenience, the parties are referred to as
they are arrayed before the trial Court.
3. Brief facts leading to filing of the present Second Appeal
are that the respondent/plaintiff filed the suit in O.S.No.1432 of
2019 seeking eviction of the appellants/defendants from the suit
schedule property and for mesne profits. It is contended that the
defendants have approached the plaintiff in the year 2018 and
requested her to lease out part of the schedule property for
running car care business under the name and style of M/s.
Quality Car Care. The plaintiff accepted the said proposal and
leased out the suit schedule property for a period of three years
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commencing from 01.04.2018 on a monthly rent of Rs.32,000/-
subject to enhancement of rent @ 5% per annum. Accordingly,
the plaintiff and the defendants entered into a registered lease
deed dated 12.04.2018. The defendants have paid a sum of
Rs.1,80,000/- to the plaintiff as security deposit, which is
refundable at the time of vacating the suit property without
interest.
4. It is further contended that after execution of the lease
deed, the defendants have started their business in the suit
schedule property; that the defendants paid the rents for four
months, but they stopped paying the rents and electricity
consumption charges from September, 2018 onwards. As per
clause 20 of the lease deed, if the defendants commit default in
payment of rent for more than one month, the plaintiff got every
right to terminate the tenancy by giving a month's advance notice
to the defendants and proceed legally for eviction. Therefore, the
plaintiff got issued legal notice to the defendants on 19.03.2019
calling upon them to vacate the suit schedule property within 30
days from the date of receipt of the said notice. The defendants,
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instead of complying with the said legal notice, filed a suit being
O.S.No.325 of 2019 for perpetual injunction by making false and
frivolous allegations. Hence, the plaintiff filed the present suit.
5. The defendants filed written statement admitting their
relationship with the plaintiff as landlord and tenant and also
admitting the registered lease agreement executed between them.
The defendants specifically stated that they have been paying the
rents regularly and that the plaintiff refused to receive the rents
from March, 2019, and made nuisance at the suit schedule
property, and therefore, they filed a suit against the plaintiff for
injunction and prayed to dismiss the suit.
6. During the pendency of the present suit, the plaintiff has
filed I.A.No.863 of 2019 seeking a direction to the defendants to
deposit the admitted rents into the Court. The trial Court vide
order dated 07.02.2020 allowed the said I.A. directing the
defendants to deposit the admitted rent of Rs.32,000/- per month
from September, 2018 to May, 2019 i.e., Rs.2,88,000/- and
continue to pay future rents till the disposal of the suit, within a
period of one month from that date, failing which, their defence
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would be struck off. The defendants did not comply with the
said order and filed I.A.No.304 of 2020 seeking enlargement of
time, however, the said I.A. was dismissed as infructuous on
22.12.2020. Consequently, the defence of the defendants was
struck off in terms of the order passed in I.A.No.863 of 2019.
7. On behalf of the plaintiff, P.W.1 was examined and Exs.A1
and A.2 were marked.
8. The trial Court, after considering the entire material
available on record, vide judgment and decree dated 08.09.2021,
decreed the suit directing the defendants to vacate and handover
the suit schedule property to the plaintiff within a period of three
months. The trial Court observed that the plaintiff is entitled to
get mesne profits and arrears of rent from September, 2018 to
May, 2019 @ Rs.32,000/- per month on payment of Court fee,
after ascertaining them under separate enquiry.
9. Aggrieved by the judgment and decree dated 08.09.2021,
the defendants filed A.S.No.72 of 2021 in the unit of the District
Judge, Ranga Reddy District at L.B. Nagar. However, in view of
creation of new judicial districts, the case was transferred to the
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Court of the I Additional District Judge, Medchal-Malkajgiri
District at Kushaiguda, and it was re-numbered as A.S.No.145 of
2022. During the pendency of the said A.S., the defendants filed
I.A.No.951 of 2023 under Order XLI Rule 25 read with Section 151
C.P.C. with a prayer to frame an issue "whether the defendants
despite striking off the defence can cross-examine the plaintiff's witness
and argue the main suit? and remand the matter to the learned trial
Court with a direction to allow them to cross-examine the plaintiff's
witness and argue the suit on merits".
10. The first Appellate Court, on re-appreciation of the entire
evidence and perusal of the material available on record,
dismissed both A.S.No.145 of 2022 and I.A.No.951 of 2023
confirming the judgment and decree passed by the trial Court,
vide judgment and decree dated 30.10.2023. Aggrieved by the
judgment and decree dated 30.10.2023 passed in A.S.No.145 of
2022, the appellants filed the present second appeal.
11. Heard Sri Prabhakar Sripada, the learned Senior Counsel
for Sri Setty Ravi Teja, the learned counsel for the appellants and
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Sri Jagadeeshwar Rao, the learned counsel for the respondent.
Perused the record.
12. The learned Senior Counsel appearing for the appellants
had submitted that the trial Court, without proper appreciation of
evidence, has decreed the suit directing the appellants to vacate
and handover the vacant possession of the suit schedule property
to the respondent/plaintiff within three months and that the first
Appellate Court erred in confirming the judgment and decree
passed by the trial Court. He further contended that the first
Appellate Court wrongly construed that the trial Court granted
sufficient opportunities, but, the appellants failed to cross-
examine P.W.1; that in fact, the trial Court was adjourning the
matter for compliance of the conditional order dated 15.04.2021
passed in I.A.Nos.64 and 65 of 2021, which were filed seeking
permission to cross-examine P.W.1 and for enlargement of time
to pay the admitted rents in terms of the order dated 07.02.2020 in
I.A.No.863 of 2019. Therefore, the time granted by the trial Court
for complying with the said conditional order dated 15.04.2021
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respectively, cannot be termed as granting time to the appellants
to cross-examine P.W.1.
13. The learned Senior Counsel further contended that the
appellants are running car garage by employing 20 persons and
they have invested huge amounts in establishing the said car
garage, and that if they are evicted from the schedule premises,
the appellants would be put to great hardship and irreparable
loss.
14. The learned Senior Counsel has relied upon the judgment
of the Apex Court in Modula India v. Kamakshya Singh Deo 1,
with regard to the right of the defendants to cross examine
notwithstanding striking of the defence.
15. Per contra, the learned counsel appearing for the
respondent/plaintiff submitted that the appellants and the
respondent entered into lease agreement dated 12.04.2018 in
respect of the suit schedule property for a period of three years
commencing from 01.04.2018 on a monthly rent of Rs.32,000/-;
that the appellants defaulted in payment of rents from
(1988) 4 SCC 619
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September, 2018 i.e., within a period of six months and enjoying
the possession over the suit schedule property illegally without
paying the rents. The learned counsel also contended that the
respondent is a senior citizen and widow and she is being
harassed by the appellants by depriving her of legitimate
amounts. He further contended that though the trial Court has
granted sufficient time, the appellants did not pay the rents and
that the appellants have paid the rents only in compliance of the
order passed by the first appellate Court in the appeal, while
granting the stay, which shows the attitude of the appellants
towards the respondent. 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
much less substantial question of law arises for consideration in
this Second Appeal. Therefore, he prayed to dismiss the present
Second Appeal.
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16. A perusal of the record discloses that the
respondent/plaintiff filed I.A.No.863 of 2019 in O.S.No.1432 of
2019 to direct the appellants/defendants to deposit the admitted
rent from September, 2018 to May, 2019 and the trial Court vide
order dated 07.02.2020 directed the appellants to deposit the
admitted rents and further directed them to continue to deposit
the future rents till the disposal of the suit within a period of one
month, failing which, their defence would be struck off. The
appellants, instead of complying with the said direction, filed
I.A.No.304 of 2020 seeking to enlarge time for depositing the
rents. The said I.A. was dismissed as infructuous on 22.12.2020
and consequently, the defence of the appellants was struck off.
17. The record further discloses that the appellants/defendants
filed I.A.Nos.64 and 65 of 2021 seeking permission to cross-
examine P.W.1 and for enlargement of time to pay the admitted
rents in terms of the order dated 07.02.2020 passed in I.A.No.863
of 2019 respectively. The trial Court disposed of the said
Interlocutory Applications vide common order dated 15.04.2021,
the operative portion of which reads under:
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"In the result, the interlocutory applications filed by the
defendants would be allowed on condition of the defendants paying
costs of Rs.10,000/- in each application to the plaintiff by the next
date of hearing and paying the entire arrears of rent, as directed by
this Court in I.A.No.863 of 2019, within one month fifteen days,
from today, that is, by 01-06-2021, filing which the applications
shall stand dismissed. Call on 01.06.2021 for compliance."
18. The appellants/defendants did not comply with the said
conditional order by paying the costs of Rs.10,000/- imposed by
the trial Court in I.A.No.64 of 2021 which was filed for cross-
examination of P.W.1. However, the trial Court adjourned the
matter from time to time i.e., 10.06.2021, 24.06.2021, 02.07.2021,
14.07.2021 and ultimately, dismissed the said Interlocutory
Applications for default on 11.08.2021.
19. It is also evident from the record that the appellants did not
comply with any of the conditions imposed by the trial Court vide
common order dated 15.04.2021, which clearly shows the conduct
of the appellants. Therefore, the trial Court has rightly proceeded
with adjudication of suit on merits and decreed the suit on proper
appreciation of evidence, material available on record and the
same was also confirmed by the first appellate Court.
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20. Though the learned counsel for appellants vehemently
argued that the trial Court decreed the suit without proper
appreciation of the evidence, and the first Appellate Court erred
in confirming same, it is to be seen that the learned counsel for
appellants 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.
21. 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.
22. Further, in Gurdev Kaur v. Kaki 2, 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
(2007) 1 Supreme Court Cases 546
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where a substantial question of law is raised and fell for
consideration.
23. 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.
24. Hence, the Second Appeal fails and the same is accordingly
dismissed at the stage of admission. No costs.
25. At this juncture, the learned counsel for the appellants
prayed for granting some reasonable time to vacate the schedule
premises.
26. Hence, three months time is granted to the appellants for
vacating the schedule premises subject to the appellants filing an
undertaking to that effect before the trial Court, within a period
of one week from the date of receipt of a copy of this order.
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Pending miscellaneous applications, if any, shall stand
closed.
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LAXMI NARAYANA ALISHETTY, J
Date: 09.01.2024
va
