HON’BLE SRI JUSTICE LAXMI NARAYANA ALISHETTY

JUDGMENT:

The Second Appeal is filed questioning the judgment and decree, dated 18.12.2018, passed by the II Additional Chief Judge, City Civil Court, Hyderabad in A.S.No.222 of 2016, whereby and whereunder the judgment and decree, dated 23.08.2016, passed by the VIII Junior Civil Judge, City Civil Court, Hyderabad in O.S.No.1689 of 2016 was confirmed.

2. The appellant herein is defendant No.1, respondent No.1 is plaintiff and respondent No.2 is defendant No.2 in the suit. For convenience, hereinafter the parties are referred to as they were arrayed in the suit.

3. The brief facts of the case, which led to the filing of the present Second Appeal, are that the plaintiff filed a suit for eviction against the defendants, who are mother and son, in respect of the suit schedule property i.e., H.No.18-2-39/35/1 admeasuring 149 square yards situated at Ghazi-e-Millath Colony, Chandrayangutta, Hyderabad. It is averred in the plaint that the plaintiff is the owner of the property and purchased the same from Mohd. Hussain Khan on 17.05.2004. Defendant No.1 is a obtained the suit schedule property from the plaintiff on 05.06.2004 under a rental agreement on a monthly rent of Rs.3,000/- per month, excluding electricity charges. The plaintiff requested them to vacate the suit schedule property on 05.07.2007 for the purpose of performing the marriage of his brother; that one Mohd. Shahjuddin obtained the suit schedule property on a monthly rent of Rs.4,000/- on 01.08.2007 and vacated the said premises in December, 2012 and handed over the possession to the plaintiff; that the previous tenant, i.e., Defendant No.1, once again obtained the suit property on a monthly rent of Rs.4,000/- with effect from 01.01.2012 (which was wrongly mentioned as 01.01.2011 in the notice) and further agreed to an enhancement of rent @ 5% per year. Defendant No.1 paid rent till October 2015, but defaulted in payments of rent since November, 2015 and has not vacated the premises despite repeated requests and reminders; that the plaintiff requested her to vacate the property and issued a legal notice on 04.06.2016, however, the defendant did not vacate the premises; that the defendants are liable to pay arrears of rent of Rs.36,000/- from 01.11.2015 to 01.07.2016, and they are also liable to pay mense profits of Rs.10,000/- per month. Hence, the suit.

4. Defendant Nos.1 and 2 remained exparte in the suit.

5. On the basis of the above pleadings the trial Court framed the following issues for trial:-

i) Whether the plaintiff is entitled to recover the suit schedule property from the defendant as prayed for on evicting the defendant from it?

ii) Whether the defendants are liable to pay the arrears of rent from November, 2015 to July, 2016 as prayed for?

iii) Whether the defendant is liable to pay Rs.10,000/- per month to the plaintiff towards mesne profits from the date of suit as prayed for?

iv) To what relief?

6. During the course of trial, plaintiff was examined as PW1 and Exs.A1 to A5 were marked.

7. After full-fledged trial and upon considering the oral and documentary evidence and the contentions of both the parties, the trial Court dismissed the suit, without costs.

8. The trial Court categorically observed as hereunder:-

(i) On perusing both the legal notices Ex.A2 and A4, the defendant has to pay electricity and water charges, but there is no document filed to prove the existence of schedule property and there is no evidence adduced that the property was leased out to the defendant except the legal notices which are alleged to have been received by the defendant, Ex.A5 is the acknowledgment filed by the plaintiff to show that the defendant No.1 was received on 11.07.2016 by D1, the same notice which was issued on 04.06.2016 was returned as left. The same notice again issued without any corrections and without any modifications to the defendant No.1. The plaintiff is silent why the second notice was got issued by the plaintiff