THE HON’BLE SRI JUSTICE SUBBA REDDY SATTI

SECOND APPEAL No.204 of 2021 

JUDGMENT: 

The above second appeal is filed by the defendant in the suit, aggrieved by the judgment and decree dated 18.03.2021 in  A.S.No.145 of 2019 on the file of the Special Sessions Judge for  SC and ST Cases-cum-XI Additional District and Sessions  Judge, Visakhapatnam, confirming the judgment and decree  dated 21.02.2019 in O.S.No.1090 of 2015 on the file of II  Additional Junior Civil Judge, Visakhapatnam. 

2. For the sake of convenience, the parties herein are  referred to as they were arrayed in the plaint. 

3. Plaintiff filed suit O.S.No.1090 of 2015 seeking eviction of  the defendant and for delivery of vacant possession of the  schedule property; to pay arrears of rent of Rs.74,550/- and for  future damages etc. 

4. In the plaint it was contended interalia that the plaintiff is  the absolute owner of the shop in the ground floor bearing Door  No.9-14-12/4 in VIP Road, CBM Compound, Visakhapatnam;  that defendant was inducted into schedule premises as tenant  on 10.09.2006 on a monthly rent of Rs.5,325/- payable on or  before first of every succeeding month; that the tenancy is  month to month; that defendant is running a mobile, music and  movie store under the name and style of M/s Mobile and Movie  World; that defendant committed default in payment of rents 

from August, 2014 till filing of suit; that defendant filed suit  O.S.No.129 of 2015 against the plaintiff seeking permanent  injunction; that in spite of requests made by the plaintiff,  defendant failed to pay the rents; that the plaintiff got issued a  quit notice dated 02.10.2015 and terminated the tenancy and  further directed the defendant to vacate the premises by  10.11.2015 and also to pay arrears of rents; that defendant  having received the said notice, neither vacated the premises  nor paid the arrears of rents and hence, filed the suit. 

5. Defendant filed written statement and admitted tenancy,  however, contended that monthly rent is Rs.3,000/-. He further  contended that an advance amount of Rs.70,000/- was paid,  which is refundable; that the rent is being enhanced from time  to time and the rent at the time of filing of written statement is  Rs.5,325/-; that he paid rents upto November, 2014 and later  filed suit O.S.No.129 of 2015 seeking permanent injunction,  wherein I.A.No.212 of 2015 was filed; that the rents are being  deposited from November, 2014 till January, 2016 in the suit  and thus, prayed the Court to dismiss the suit.  

6. During the Trial, plaintiff examined himself as P.W.1 and  got marked Exs.A-1 to A-3. On behalf of defendant, the  proprietor of defendant was examined as D.W.1 and Ex.B-1 was marked.  

7. The trial Court on consideration of oral and documentary  evidence, decreed the suit by judgment dated 21.02.2019 and 

directed the defendant to vacate and deliver vacant possession  of the plaint schedule property within two months from the date  of judgment. Trial Court further held that the plaintiff is at  liberty to file separate application claiming future damages.  

8. Against the said judgment and decree, the appellant  herein (defendant), filed A.S.No.145 of 2019. The Lower  Appellate Court being final factfinding Court on consideration of  oral and documentary evidence, by framing necessary points for  consideration, dismissed the appeal with costs on 18.03.2021.  The lower Appellate Court directed the appellant to vacate the  schedule premises and handover vacant possession to the  plaintiff within a month. Aggrieved by the said judgment and  decree, the present second appeal is filed. 

9. Heard Sri S.V.S.S.Siva Ram, learned counsel appearing for  appellant and Sri V.V.Ravi Prasad, learned counsel appearing  for the respondent. 

10. Learned counsel for appellant contended that rents have  been regularly paid to the landlord and the appellant did not  commit any default. When the landlord tried to dispossess the  appellant forcibly, appellant was constrained to file suit for  injunction O.S.No.129 of 2015 and, in fact, have been  depositing rents in that suit. He also would contend that the  notice issued under Section 106 of the Transfer of Property Act,  1882 (for short “TP Act”) is not valid notice and finally he also 

contended that the respondent is not owner of the schedule  property.  

11. Learned counsel for the respondent supported the  judgements and decrees of the Court and contended that no  substantial questions of law arise for consideration in the  second appeal and prayed the Court to dismiss the appeal.  

12. The following are the substantial questions of law arise for  consideration in the appeal: 

1) Whether landlord and tenant relationship exist between respondent and appellant herein? 

2) Whether the notice issued under Section 106 of TP  Act is valid? 

13. Undisputed facts, as per the pleadings and evidence, are  that appellant took shop on lease from respondent and paid  Rs.75,000/- at inception. Appellant paid rents to the respondent  till September, 2018. Appellant filed suit O.S.No.129 of 2015  against the respondent herein for injunction and filed I.A.No.212  of 2015. Appellant also deposited rents in I.A.No.212 of 2015.  Landlord issued notice Ex.A-2 dated 02.10.2015 under Section 

106 of TP Act and terminated the lease with effect from  10.11.2015. No reply was issued by the appellant to the quit  notice Ex.A-2.  

14. Trial Court after framing necessary issued recorded  findings that jural relationship of tenant and landlord exists between appellant and tenant; that appellant fell in arrears of  rent; that the tenancy is month to month; that tenancy is validly 

terminated by issuing notice Ex.A-2. Trial Court also recorded  finding that appellant paid rents till September 2018; that  landlord is not entitled to arrears of rent of Rs.74,550/- and the  Rs.10,000/- claimed by landlord towards damages for use and  occupation be adjusted from Rs.75,000/- advance amount.  With regard to claim of future damages, it was held that  landlord may file separate petition. 

15. Against the said judgment and decree, appellant herein  filed A.S.No.145 of 2019. Lower Appellate Court being the final  factfinding Court discussed oral and documentary evidence and  dismissed the appeal by judgement and decree dated  18.03.2021.  

16. Though it was argued by the learned counsel for the  appellant that there is no landlord and tenant relationship, he  failed to prove the same. Apart from that being D.W.1, appellant  herein admitted about taking lease of shop from the  respondent/plaintiff and paying advance amount of Rs.75,000/- 

. Appellant/Tenant having entered into premises pursuant to  the oral lease, cannot deny the jural relationship. In Mohd.  Saber Vs Rafiunnisa Begam (died) and others1, it was held  that “lessee cannot deny the title of lessor/landlord”. The finding  of fact recorded by Courts below is basing on evidence. 

17. The learned counsel for the appellant further contended  that notice issued under Section 106 of TP Act is not valid in  

law. As noted supra, lease entered into between appellant and    

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respondent is oral and month to month. Landlord by issuing  one month notice under Ex.A-2, mandated under Section 106(1)  of TP Act, determined the lease. Though it was argued that  notice issued under Sec 106 TP Act is not valid, nothing was  made out in that regard. Hence, the ground urged by the  learned counsel for the appellant that notice issued under Ex.A 

2 is not valid falls to ground.  

18. Mere payment of advance amount at the time of entering  into lease would not inure to the benefit of tenant. Tenant at the  most is entitled to recover the amount. In Chittajallu Srinivasa  Rao Vs Narmada Joshi2, it was held that “even if payment of  advance is proved, lessee would at the most be entitled to  recover it, but cannot plead that lease stands extended for  corresponding period”.  

19. The second appeal was listed on 31.03.2022 for  admission. Learned counsel for appellant argued appeal for  admission and later sought time for filing affidavit of the  appellant to vacate the schedule premises. Accordingly, the  appeal is adjourned to 07.04.2022. Affidavit, duly sworn by the  appellant, was filed vide USR No.18174 of 2022. A perusal of  the affidavit indicates that the appellant stopped paying rents to  respondent from September, 2021; that the appellant has been  running business in the schedule premises from the last 16  years; that because of Covid-19 pandemic, minuscule business  

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activity is going on and hence, sought time to vacate the  schedule premises till 01.04.2023. 

20. Learned counsel for the landlord opposed the request  made on behalf of tenant to grant time till 01.04.2023 and also  submitted that the another tenant in the neighbouring shop in  the same complex is paying monthly rent of Rs.35,000/- and in  fact, execution petition was filed after judgment and decree and  it is pending consideration.  

21. The findings of facts recorded by the Courts below are  based on evidence and hence, do not call for interference by this  Court under Sec 100 CPC. Hence, the second appeal is liable to  be dismissed, however without costs. 

22. The appellant has been carrying on business since 2006,  this Court, in view of the affidavit filed by the appellant, deem it  appropriate to grant time to vacate the schedule premises till  31.08.2022. The appellant also agrees to pay rent at  Rs.12,000/- per month from March, 2022 till he vacates the  schedule premises. 

23. In view of the same, time is granted to vacate the premises  till 31.08.2022 subject to following conditions:  

(1) The proprietor of appellant shall file an undertaking  affidavit before the executing Court on or before  25.04.2022 that he would vacate the schedule premises  by 31.08.2022.

(2) The proprietor of appellant shall continue to pay the rent  at Rs.12,000/- per month from March, 2022 till  31.08.2022 on or before 10th of succeeding month. The  rent for the month of August, 2002 is to be paid by  31.08.2022. However, this will not preclude the landlord  from filing separate application as per decree claiming  future damages for use and occupation. 

(3) If the appellant (proprietor) failed to adhere to any of the  conditions referred supra, the respondent/plaintiff is  entitled to execute the decree without reference to time  granted by the Court to vacate the schedule premises till  31.08.2022.  

24. With the above directions, the second appeal is dismissed,  however without costs. 

As a sequel, all the pending miscellaneous applications  shall stand closed.  

_________________________ 

SUBBA REDDY SATTI, J 

13th April, 2022 

PVD

THE HON’BLE SRI JUSTICE SUBBA REDDY SATTI  

SECOND APPEAL No.204 of 2021 

13th April, 2022 

PVD

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