The appellants are lessees in respect of the premises owned by the respondent at Bank Street, Hyderabad, since 1997. They filed O.S.No.1159 of 2005 in the Court of III Junior Civil Judge, City Civil Court, Hyderabad, against the respondent for the relief of perpetual injunction to restrain the respondent from interfering with the possession or from evicting them from the premises, otherwise than through process, prescribed by law. On her part, the respondent filed O.S.No.2965 of 2005 for eviction of the appellants from the same premises. Through common judgment dated 27-02-2008, the trial Court dismissed O.S.No.1159 of 2005 and decreed O.S.No.2965 of 2005.

The appellants filed A.S.No.115 of 2008 in the Court of XII Additional Chief Judge (FTC), City Civil Court, Hyderabad, against the decree in O.S.No. 2965 of 2005.The appeal was dismissed on 29-12-2010. Hence, this Second Appeal.

Sri G. Dhananjai, learned counsel for the appellants submits that the suit itself was not maintainable, inasmuch as there existed a clause in the agreement, dated 01-01-1997, providing for renewal of the lease. He contends that though no specific issue was framed on this aspect, the trial Court and lower Appellate Court ought to have taken the same into account. He further submits that in the course of trial, the respondent admitted that the rent for the premises as such was less than Rs.3,000/- per month, and on the basis of that admission, the trial Court ought to have rejected the plaint, leaving it open to the respondent to approach the learned Rent Controller. He submits that the fact that the appellants made a deposit of Rs.8 lakhs was not taken into account, and that the decree passed by the trial Court and confirmed by lower Appellate Court cannot be sustained in law.

Sri Sharad Sanghi, learned counsel for the respondent, on the other hand, submits that the Second Appeal is barred by constructive res judicata, since the appellants did not file any first appeal or second appeal against the decree in O.S.No.1159 of 2005. He contends that no plea was raised in the written-statement, as to the maintainability of the suit, much less about the renewal of lease. He submits that if, in fact there was a clause for renewal of lease, the only option for the respondent was, to file a suit for specific performance, in the event of the request therefor not being acceded to. He further submits that no deposit was made by the appellants, and that no plea of that nature was raised in the suit filed by them.

The trial Court clubbed both the suits, referred to above, and heard them together. The following issues were framed in O.S.No.2965 of 2005:

1. “Whether the defendant is liable to vacate physical possession of the suit schedule property as prayed by the plaintiff?

2. Whether the defendant is liable to pay an amount of Rs.12,000/- per month towards damages as prayed for?”

In the common evidence that was recorded by the trial Court, the husband of the respondent herein deposed as PW-1 and filed Exs.A-1 to A-4. The 1st appellant deposed as DW-1, and he filed Exs.B-1 to B-6. The suit was decreed, and in A.S.No.115 of 2008 filed by the appellants, the lower Appellate Court confined its consideration only to the validity of the notice, issued under Section 106 of the Transfer of Property Act (for short ‘the T.P. Act’). The appeal was ultimately dismissed.

The Second Appeal is preferred against the concurrent judgments of the trial Court and lower Appellate Court. There is an important ground that militates against the appellants. As observed earlier, both the parties filed separate suits and the trial Court dealt with them, together. The decrees went against the appellants.

In case the appellants wanted to assail the correctness of the common judgment, they were required to prefer appeals against both the decrees. However, they have chosen to file appeal against only one decree. The result was that, on account of failure to prefer appe