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IN THE HIGH COURT FOR THE STATE OF TELANGANA AT HYDERABAD
M. Laxman, J.
Smt.Azmath Jahan - Appellant
Versus
M.Venkateshwarlu - Respondent
Second Appeal No. 214 of 2015
Decided On : 18-07-2022
Civil Procedural Code, 1908 - Section 96, 100, 104, 107 - Order XLIII Rule 1 - A.P. Buildings (Lease, Rent and Eviction) Control Act, 1960 - Section 32 - Transfer of Property Act - Section 106 - Second Appeal - Appeal from orders - Act not apply to certain buildings - Whether if such a judgment consists of both requirement of order as well as decree, the party has a choice to prefer Civil Miscellaneous Appeal or a regular appeal - Trial Court has committed procedural irregularity by not answering all the issues which were mandated to answer along with jurisdictional issue in view of amendment made to Rule 2 of Order XIV of CPC. (Para 46).
Finding of the court :
Contention was advanced by learned counsel for tenant that first appellate Court ought to have remanded case to trial Court in light of absence of findings on other issues, even though it reversed findings of trial Court on jurisdictional issue. This contention has no merits. It is to be noted that remand is required where additional evidence is required to answer issues taken up by appellate Court. If evidence is sufficient enough to answer issues which were not answered by trial Court, the appellate Court can answer same since it has a co-extensive power with that of a trial Court under Section 107 of CPC. evidence on record clearly shows that tenant had received notice of eviction issued under Section 106 of Transfer of Property Act and it is not a defective notice. Once such findings are there, there is no other defence available to tenant under Transfer of Property Act unlike proceedings under the Rent Control Act. This finding was rightly made by first appellate Court, and such findings do not suffer from any perversity so as to give rise any substantial question of law. Seeing from any angle, findings of first appellate Court do not suffer from any perversity. Accordingly, these substantial questions of law are decided.
Results : Second Appeal is dismissed.
JUDGMENT :
M.Laxman, J.
1. The present appeal assails the judgment and decree dated 15.10.2014 in A.S.No.4 of 2014 on the file of the Court of the XIV Additional Chief Judge (Fast Track Court), City Civil Court, Hyderabad (for short, ‘first appellate Court’), wherein and whereby the suit filed by the respondent herein for eviction of the appellant herein from the suit property and also damages was allowed by reversing the judgment and decree dated 31.12.2010 in O.S.No.2353 of 2008 on the file of the Court of the XXI Junior Civil Judge, City Civil Court, Hyderabad (for short, ‘trial Court’). In the said suit, the plaint was ordered to return holding that civil Court has no jurisdiction to entertain suit.
2. The appellant herein is the defendant and the respondent herein is the plaintiff in the said suit. For the sake of convenience, the appellant herein is referred to as ‘landlord’ and the respondent herein is referred to as ‘tenant’.
3. The short case of the landlord is that she is the owner and possessor of house property bearing No.8-2-609/8/M, Gowrishankar Colony, Road No.11, Banjara Hills, Hyderabad. She let out Mulgi No.2, admeasuring 135 square feet (10 feet X 13.5 feet) which is forming part of house No.8-2-609/8/M (hereinafter called “suit schedule property”), to the tenant on a monthly rent of Rs.1,300/- i.e., Rs.900/- towards rent of suit property and Rs.400/- towards rent of furniture. An amount of Rs.25,000/- was deposited by the tenant with the landlord towards security deposit. The period of tenancy was from 01.10.2005 to 31.08.2006 and the defendant had to vacate the suit property by 01.09.2006. While so, the tenant failed to pay the rent from 01.01.2008. In those circumstances, the landlord issued a notice to the tenant to vacate the suit property by 30.06.2008. Despite receipt of the said notice, the tenant neither issued any reply nor vacated the suit property. Hence, the landlord filed the present suit.
4. The case of the tenant is that he admits the tenancy, monthly rent, deposit of security amount and commencement of tenancy. His case is that the building is of two decades old and the landlord having purchased the building converted the suit property into a shop and it was assessed to the Municipality by 1988-90 itself. Therefore, the suit property comes under the purview of the A.P. Buildings (Lease, Rent and Eviction) Control Act, 1960 (for short, the Rent Control Act); hence, the suit before the civil Court is not maintainable. The tenant denied receipt of notice of eviction issued by the landlord and prayed to dismiss the suit.
5. The trial Court, on the basis of the above pleadings, has framed the following issues:
2. Whether the plaintiff is entitled for eviction of suit schedule property as prayed for?
3. Whether the defendant is a defaulter in payment of monthly rents?
4. Whether the plaintiff has issued quit notice to the defendant for termination of their tenancy?
5. Whether the plaintiff is entitled for mesne profits as prayed for?
6. To what relief?”
6. The plaintiff, to support his case, himself was examined as P.W.1 and relied upon Exs.A-1 to A-4. The defendant, to support her case, examined D.W.1, but did not adduce any documentary evidence.
7. The trial Court took up all the issues for trial including the issue of jurisdiction and facts and rendered its judgment only on issue No.1 relating to jurisdiction of the civil Court and did not answer other issues. Accordingly, the trial Court held that the age of the building is more than 15 years and thus, the suit property is governed by the provisions of the Rent Control Act. Having held so, the trial Court ordered the return of the plaint for presenting the same before the appropriate forum. Aggrieved by the same, initially, the landlord preferred Civil Miscellaneous Appeal under Order XLIII of CPC before the Chief Judge, City Civil Court
Point of law: The effect of Order XLI Rule 27(1)(b) CPC was considered in recording such observations. It was not an instance with reference to application of Order XLI Rule 27(1)(aa) CPC. This claus....
Res Judicata – Rule of res judicata does not strike at root of jurisdiction of Court trying subsequent suit – It is a rule of estoppel by judgment based on public policy.
The court affirmed that jurisdiction issues can only be decided by established forums, and changes involving procedural law are retrospective, impacting pending actions unless specified otherwise.
The main legal point established in the judgment is the requirement for the lower Appellate Court to adequately consider the jurisdiction of the Civil Court and the applicability of relevant legal pr....
The amended Section 32(c) of the Rent Control Act restricts civil court jurisdiction over eviction suits for tenants paying rent below specified thresholds.
(1) Decree passed by civil court is valid and executable which is not interdicted by applicability of the Act to area in question.(2) Rights of parties have to be determined on the date of filing of ....
The Rent Controller does not have the power to decide the issue of landlord and tenant as a preliminary issue in a summary proceeding.
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