Telangana High Court
Mr.M.Naveen vs Smt.S.Indira on 22 January, 2024
HON'BLE SRI JUSTICE LAXMI NARAYANA ALISHETTY
SECOND APPEAL No.231 of 2023
JUDGMENT:
This Second Appeal is filed challenging the judgment and
decree dated 25.10.2022 passed in A.S.No.136 of 2018 on the
file of the II Additional Chief Judge, City Civil Court at
Hyderabad, confirming the judgment and decree dated
17.04.2018 passed in O.S.No.399 of 2016 on the file of the
Court of the I Senior Civil Judge, City Civil Court, Hyderabad.
Thus, the present Second Appeal is filed against the concurrent
findings of trial Court as well as first Appellate Court.
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 plaintiffs are the owners and landladies of non-
residential premises/Mulgi admeasuring 15.08 ft. x 33.5 sq.ft.,
plinth area 523 sq.feets in second floor of building under
Municipal No.4-8-804, 805, 805/1, Opp: Golden Press,
Gowliguda, Hyderabad (for short 'suit schedule property'). The
defendant had obtained the suit schedule property on rent
basis under unregistered lease deed executed in the year 2005
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with the plaintiffs and he had deposited a sum of Rs.1,00,000/-
with the plaintiffs towards interest free security deposit.
Originally, monthly rent was fixed at Rs.5,000/- and the same
was enhanced from time to time at the rate of 10% on the than
monthly rent after expiry of every three years as per clause No.4
of lease deed and present monthly rent is Rs.6,655/-. Apart
from monthly rent the defendant had also agreed to pay
property tax, water consumption charges, maintenance
charges, electricity consumption charges in respect of the suit
schedule property. Further, the defendant had agreed that he
will maintain the suit schedule property as a prudent man and
he shall handover the same in actual condition.
4. However, the defendant failed to pay the water
consumption charges and maintenance charges since inception
of tenancy. Further, he also failed to pay the monthly rent and
property tax from September, 2014 to January, 2016 in spite
of repeated demands. To the surprise of plaintiffs, they received
a legal notice dated 19.09.2015 stating the defendant intended
to vacate the suit schedule property by 14.11.2015 and also
requested them to refund the amount of Rs.1,00,000/-, which
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was paid by him towards refundable deposit. Upon receipt of
the same, the plaintiffs issued suitable reply dated 20.10.2015
to the defendant and the same was returned with a postal
endorsement "addressee lift". Thereby, the plaintiffs
constrained to send the reply notice dated 20.10.2015 to the
defendant's business place. In spite of receipt of the same, the
defendant has failed to comply with the same.
5. Further, as the plaintiffs have failed to maintain the suit
schedule property, the plaintiffs constrained to issue notice
dated 04.02.2016 demanding the defendant to pay an amount
Rs.2,00,000/- towards the damages caused by him to the suit
schedule property. Though the defendant received the said
notice on 05.02.2016, he failed to comply with the same. It is
contended that the acts of the defendant in not paying the
monthly rent and property tax is intentional and deliberate, in
spite of repeated demands made by the plaintiffs. Therefore, the
plaintiffs have filed the suit for recovery of possession; to
recover Rs.33,967/- towards arrears of rent and property tax;
Rs.21,000/- towards past mesne profits/damages; Rs.15,000/-
per month or at any further rate till the date of handing over
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vacant and actual possession of the suit schedule property to
the plaintiffs; Rs.2,00,000/- towards cost of reconstruction for
the damages caused by the defendant in the suit schedule
property and restoration of amenities and Rs.3,000/- towards
cost of legal notice dated 04.02.2016.
6. The defendant filed written statements denying the plaint
averments and inter alia stating that he was doing business
along with his brother and from 2009 onwards and the
plaintiffs herein have started harassing him and others with
mala fide intentions. To that effect a legal notice was also
issued to the plaintiffs dated 17.06.2013 with regard to ground
floor mulgi. Further, on receipt of notice by the defendant dated
15.09.2015, the plaintiffs invented and fabricated the alleged
allegation of damage, non-payment of tax, default in rents etc.,
to overcome their mis-deeds and with a malafide intention to
escape from complying with the notice dated 15.09.2015. The
defendant submits that from the inception of lease, till vacating
the suit schedule property, he has not defaulted the lease
condition and moreover, the copy of lease agreement filed by
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the plaintiffs is also doubtful and they are put to strict proof of
the same.
7. It is contended that defendant never received the alleged
notice dated 04.02.2016 on 05.02.2016 as he had already
vacated the premises as per notice dated 15.09.2015 and
handed over the possession to the plaintiffs. Further, the said
notice dated 04.02.2016 is invented by the plaintiffs for
wrongful gain by misusing the process of the law and moreover
the plaintiffs have no cause of action for the suit against the
defendant and the suit is mis-conceived.
8. Before the trial Court, on behalf of the plaintiffs, P.W.1
and P.W.2 were examined and Exs.A1 to A.13 were marked.
On behalf of the defendants, D.W.1 and D.W.2 were examined
and no documents were marked.
9. The trial Court, after considering the entire material
available on record, decreed the suit with costs vide judgment
and decree dated 17.04.2018, and the defendant was directed
to vacate and handover the vacant possession of the suit
schedule property; directed to pay Rs. 33,967/- towards arrears
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of rent and property tax from September, 2014 to February,
2016; and also directed to pay arrears of monthly rent and
property tax from February, 2016 to April, 2018.
10. Aggrieved by the judgment and decree dated 17.04.2018,
the defendant has filed A.S.No.136 of 2018. The first appellate
Court on re-appreciation of the entire evidence and perusal of
the material available on record vide judgment and decree
dated 25.10.2022 dismissed the appeal confirming the
judgment and decree passed by the trial Court. Hence, the
present second appeal.
11. Heard Sri Sujith Jaiswal, learned counsel for the
appellant and Sri S.R.Deshmukh, learned counsel for the
respondents. Perused the record.
12. A perusal of the record discloses that both the Courts
below concurrently held that the plaintiffs have established
their claim in respect of recovery of possession of the suit
schedule property, arrears of rent and property tax, future
mense profits.
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13. 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 committed an error
in confirming the judgment and decree passed by the trial
Court.
14. However, 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.
15. 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.
16. 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
(2007) 1 Supreme Court Cases 546
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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.
17. 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
appellants are factual in nature and no question of law much
less a substantial question of law arises for consideration in
this Second Appeal.
18. Hence, the Second Appeal fails and the same is
accordingly dismissed at the stage of admission. No costs.
Pending miscellaneous applications, if any, shall stand
closed.
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LAXMI NARAYANA ALISHETTY, J
Date: 22.01.2024
Dua
