Dismissed

Badugu Madhusudhan v. B.Narahari

Telangana HC6 Aug 2013SA/558/2013

Case brief

AI extract

What is this about?

In a second appeal under Section 100 of C.P.C, this court upheld the trial court's eviction decree. The court held that additional evidence was inadmissible under Order 41 Rule 27 as both parties were tenants and the suit premises lacked rights under partition. The eviction was upheld as the building was over ten years old.

What did the court decide?

Grant of time till 30.10.2013 to vacate the suit premises and hand over vacant possession subject to filing an undertaking.

Badugu Madhusudhan Vs B.Narahari — Landlord and Tenant | Telangana HC (2013)

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THE HON’BLE Ms. JUSTICE G.ROHINI

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SECOND APPEAL No.558 OF 2013

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Dated: 06.08.2013

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Between:

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Badugu Madhusudhan … Appellant And

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B. Narahari … Respondent

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THE HON’BLE Ms. JUSTICE G.ROHINI

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SECOND APPEAL No.558 OF 2013

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JUDGMENT:

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This appeal under Section 100 of C.P.C is preferred against the judgment and decree dated 16.04.2013 in A.S. No.96 of 2012 on the file of the Court of the II Additional Chief Judge, City Civil Court, Hyderabad confirming the judgment and decree dated 17.02.2012 in O.S. No.4339 of 2008 passed by the Court of the X Junior Civil Judge, City Civil Court, Hyderabad.

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The appellant herein is the defendant. The respondent herein/plaintiff filed the suit for eviction from the suit schedule property and for mesne profits. The case of the plaintiff is that he is the owner of the suit premises and that it was let out to the defendant under the lease deed dated 09.10.2013 for a period of five years. The monthly rent agreed initially was Rs.2000/- apart from a sum of Rs.500/towards fixtures, fittings and amenities excluding the electricity and water charges. It was also agreed that the rent should be enhanced @ 5% by the end of each year. The lease period of five years expired on 15.08.2008 and therefore the plaintiff requested the defendant to vacate the suit premises and handover the vacant possession to him. Alleging that the defendant failed to vacate the premises, the plaintiff got issued Ex.A.7 legal notice dated 20.08.2008 terminating the tenancy and calling upon the defendant to vacate and handover the premises by 14.09.2008. Though the defendant received the said notice on 25.08.2008, he failed to vacate the premises. Hence, the suit for eviction. The defendant in his written statement though admitted that he is the tenant in respect of the suit schedule premises under the lease deed dated 09.10.2003, it was contended that the provisions of the A.P. Buildings (Lease, Rent and Eviction) Control Act, 1960 (for short, ‘the Rent Control Act’) are attracted and as such the suit is not

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maintainable.

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The trial Court on the basis of the pleadings settled the following issues for trial:

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(1) Whether the plaintiff is entitled for eviction of the defendant from the suit schedule property and for mesne profits as prayed for?

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(2) To what relief?

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(3) Whether the Court has got jurisdiction to entertain the suit? (Additional Issue)

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The plaintiff got himself examined as P.W.1 and Exhibits A.1 to A.29 documents were marked in evidence to substantiate the suit claim. On behalf of the defendant D.W.1 was examined and Exhibits B.1 to B.11 documents were marked in evidence. On appreciation of the said evidence, particularly Exs.A.11 to A.23 the trial Court held on issue No.3 (additional issue) that the suit premises was constructed in the year 1998 and therefore by the date of filing of the suit in the year 2008 the period of fifteen years provided under Section 32(b) of the Rent Control Act was not completed. Thus, it was held that the Civil Court has jurisdiction to entertain the suit for eviction. So far as the issue No.1 is concerned a finding was recorded that since the lease period had admittedly expired, Ex.A.7 notice was properly issued terminating the tenancy. Accordingly the suit was decreed by judgment dated 17.02.2011 directing the defendant to deliver vacant possession of the suit premises within sixty days. So far as mesne profits are concerned, it was left open to the plaintiff to file a separate application.

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Against the said judgment and decree the defendant filed A.S. No.96 of 2012 in the Court of the II Additional Chief Judge, City Civil Court, Hyderabad along with an application being I.A. No.2173 of 2012 under Order 41 Rule 27 of C.P.C for receiving two documents namely (1) the judgment and decree dated 29.09.2009 in O.S. No.2107 of 2006 on the file of the Court of the V Senior Civil Judge,

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City Civil Court, Hyderabad; and (2) the judgment and decree dated 26.04.2012 in A.S. No.214 of 2010 on the file of the Court of the Chief Judge, City Civil Court, Hyderabad as additional evidence. However, the lower Appellate Court declined to receive the additional evidence holding that the documents sought to be produced in evidence are not relevant. Accordingly, by judgment dated 16.04.2013, the lower Appellate Court dismissed I.A. No.2173 of 2012 and the main appeal was also dismissed confirming the decree for eviction passed by the trial Court.

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Aggrieved by the same the defendant filed this Second Appeal. I have heard the learned Counsel for both the parties and perused the material available on record.

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It is vehemently contended by the learned Counsel for the appellant that the finding recorded by the Courts below that the suit premises was constructed only in the year 1998 and therefore the suit for eviction is maintainable is erroneous. It is also contended that the lower appellate Court committed a grave error in declining to receive the additional evidence ignoring the fact that they are crucial documents for determination of the issue involved. In support of his submission, the learned counsel relied upon ASHISH KUMAR DAS v. REKHA MUKHERJEE^[1] . The further submission of the learned counsel for the appellant is that the Court below ought not to have taken up the application for additional evidence along with the main appeal.

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On the other hand, placing reliance upon STATE OF RAJASTHAN v. T.N. SAHAN I^[2] it is submitted by the learned counsel for the respondent that there is no bar as such to hear the application for additional evidence along with the main appeal. Supporting the findings recorded by the Courts below, it is further contended by the learned counsel for the respondent that the concurrent findings of fact warrant no interference by this Court.

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At the outset, it is to be noticed that under Order 41 Rule 27 of C.P.C. additional evidence can be received by the appellate Court where the trial Court had refused to admit evidence which ought to have been admitted or where the applicant established that notwithstanding the exercise of due diligence such evidence was not within his knowledge or could not be produced by him in the trial Court. In the instant case, the appellant sought to produce two documents as additional evidence before the lower appellate Court viz., (1) Judgment and decree dated 29.09.2009 in O.S. No.2107 of 2006 and (2) Judgment and decree dated 26.04.2012 in A.S. No.214 of 2010. It was pleaded by the appellant that the said O.S. No.2107 of 2006 was filed by one Murahari who is none other than the brother of the plaintiff and the defendant seeking partition of the joint family properties. A preliminary decree was passed on 29.09.2009 against which the respondent herein preferred A.S. No.214 of 2010 and the same was dismissed by judgment dated 26.04.2012. According to the appellant the judgment and decree in O.S. No.2107 of 2006 which is a partition suit to which both the appellant and the respondent are parties is a relevant document. It is no doubt true that the appellant and the respondent are own brothers, however the appellant did not dispute the fact that he is in possession of the suit schedule premises as a tenant under Ex.A.2 lease deed. It is also not his case that he had acquired any right in respect of the suit premises under the partition decree in O.S. No.2107 of 2006. Moreover, in his written statement he never pleaded about the pendency of O.S. No.2107 of 2006. Though the said suit was disposed of by judgment dated 29.09.2009, he did not choose to take any steps to produce the said judgment and decree in evidence in the trial Court. Under the circumstances, the provisions of Order 41 Rule 27 of C.P.C. are not satisfied. Moreover no case could be made out to show that the documents sought to be produced as additional evidence have any relevancy to decide the point involved in the appeal. Hence, the lower appellate Court is justified in

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declining to receive the additional evidence.

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As rightly submitted by the learned counsel for the respondent, it is entirely for the Court to consider at the time of hearing of the appeal on merits whether to look into the documents which are sought to be filed as additional evidence and there is no bar as such to consider the application under Order 41 Rule 27 of C.P.C. along with the appeal. Hence the lower Appellate Court cannot be said to have committed any error in considering and dismissing the application under Order 41 Rule 27 of CPC along with the main appeal.

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Coming to the merits of the case, admittedly this is a case where there is no dispute about the jural relationship. The fact that the period of lease expired on 15.08.2008 is also not in dispute. Therefore, having issued Ex.A.7 quit notice, the plaintiff / respondent herein had rightly filed the suit for eviction. On appreciation of the evidence on record both the Courts below found that Ex.A.7 was valid and that it was received by the defendant.

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Even with regard to the objection raised by the appellant/ defendant as to the maintainability of the suit on the basis of Section 32(b) of the Rent Control Act, a clear finding was recorded by the Courts below that the suit premises was constructed only in the year 1998. That being so, Section 32(b) is attracted and the provisions of the said Act are not applicable. It needs no reiteration that as per Section 32(b) of the Rent Control Act the provisions of the said Act shall not be applied to any building constructed for a period of fifteen years from the date of completion of construction. In the light of the findings recorded by the Courts below, it is clear that the suit schedule premises was constructed only ten years ago by the date of filing of the suit.

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Having carefully gone through the judgments of the Courts below, I am satisfied that the findings are based on proper appreciation of the evidence adduced by the parties and such concurrent findings of fact warrant no interference by this Court in exercise of jurisdiction

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conferred under Section 100 of C.P.C.

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This Court is also of the view that the matter involves no question of law much less substantial question of law. Hence, the interference by this Court is not warranted on any ground whatsoever.

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Accordingly, the Second Appeal is dismissed. No costs.

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However, in the facts and circumstances of the case, the appellant/defendant is granted time till 30.10.2013 for vacating the suit schedule premises and hand over vacant possession to the plaintiff provided an undertaking is filed to that effect before the Trial Court on or before 14.08.2013.

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Consequently the miscellaneous petitions, if any, pending in the Second Appeal shall stand closed.

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____________ G.ROHINI, J

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Date: 06.08.2013 GBS/MVA

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[1] (2005) 3 SCC 442

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[2] (2001) 10 SCC 619

Badugu Madhusudhan v. B.Narahari

Case brief

What is this about?

What did the court decide?

Badugu Madhusudhan v. B.Narahari

Case brief

What is this about?

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