Lakshmanachari vs Ramavathi

A.S. Bopanna, J.—The appellant is before this Court, assailing the concurrent judgments rendered by the Court below.

The plaintiff was before the Trial Court in a suit filed seeking ejectment of the defendant from the suit schedule property. The Trial Court, by its judgment and decree dated 03.08.2013 has decreed the suit both with regard to ejectment and regarding recovery of the rent, which had remained unpaid. The defendant claiming to be aggrieved by the said judgment was before the lower Appellate Court in R.A. No. 51/2013. The lower Appellate Court by the judgment dated 13.03.2015 has dismissed the appeal. Against such concurrent judgments rendered by the Courts below, the defendant is before this Court, in this appeal.

The learned counsel for the appellant while assailing the judgments of the Courts below would contend that the Courts below were not justified in accepting the plea of the plaintiff that the defendant is the tenant in respect of the suit schedule premises. It is his contention that at an earlier point, the defendant had filed a suit in O.S. No. 151/2008. In the said suit, the defendant had taken a contention that the plaintiff is not a tenant. However, immediately thereafter a memo was filed, accepting the plea of the plaintiff and the said suit for injunction had been decreed. In such circumstance, it is contended that the plaintiff herein cannot approbate and reprobate having once contended that the defendant herein is not a tenant. It is also his case that a suit seeking specific performance had been filed and the issue relating to the same is still pending. It is therefore contended that the Courts below were not justified in their conclusion, more particularly, in the circumstance when the plaintiff had not established the fact that the defendant was a tenant under the plaintiff.

The learned counsel who has entered caveat on behalf of the respondent would however seek to sustain the judgments passed by the Courts below. It is pointed out that the Court below, based on the evidence that was available on record and also taking note of the admission of the defendant, had arrived at the conclusion with regard to the jural relationship and in that light has arrived at the conclusion that the notice terminating the tenancy issued has also been served in accordance with law and therefore the Courts below have arrived at an appropriate conclusion. It is pointed out that when both the Courts have concurrently arrived at the conclusion based on the evidence available on record, the finding of fact recorded by the Courts below would not call for interference in the second appeal.

In the light of the rival contentions, I have perused the judgments passed by the Courts below.

In view of the rival contentions, the Trial Court had framed as many as six issues for its consideration:

i) Whether the plaintiff proves that she is the absolute owner of suit schedule property and she let-out the same on monthly rent of Rs. 1,000/- to the defendant?

ii) Whether the plaintiff further proves that she terminated rent agreement with defendant by issuing notice dated 11.11.2009?

iii) Whether the plaintiff further proves that the defendant was in due of rent of Rs. 17,933/- from June 2008 till 28.11.2009?

iv) Whether the plaintiff further proves that suit schedule property is necessary for her own use?

v) Whether the plaintiff is entitled for the relief as sought for?

vi) What Order or Decree?

A perusal of the issues would disclose that the Trial Court infect had required the plaintiff to establish that she was the absolute owner in respect of the suit schedule property and that the defendant is a monthly tenant in respect of the same. While answering the said issue in the affirmative, the Trial Court has taken into consideration not only the plea that was put forth in the plaint and the written statement, but also in the admissions made in the cross-examination of DW-1 and DW-2. The defendant had stated in the written statement that he is a tenant in respect of a premise, which he also admitted in cross-examination of DW-1 and DW-2. Therefore, when the Trial Court has taken note of the evidence and thereafter arrived at its conclusion, the contention as put forth by the learned counsel for the appellant cannot be appreciated at this juncture. Though the learned counsel has contended that the plaintiff herein who was the defendant in O.S. No. 151/2008 had at the first instance denied the jural relationship, the fact that ultimately the contention as put forth in O.S. No. 151/2008 was accepted and the suit was decreed and therefore, the appellant herein continued to remain in premises till the suit for ejectment was filed and a decree was passed therein would indicate that the defendant herein had also accepted the fact that he was a tenant in respect of the suit schedule premises.

Therefore, if these aspects of the matter are kept in view, in so far as the jural relationship, both the Courts have appreciated the evidence on record and thereafter arrived at a conclusion. Further, with regard to the termination of the tenancy, the Courts below have taken note of the notice dated 11.11.2009, which was marked as Ex. P1 and the postal acknowledgement at Ex. P2 for having served the same. In that view, the Courts were of the conclusion that the termination has been made in accordance with law. In that view, I am of the opinion that when both the Courts have appreciated the evidence available on record and the finding of fact is returned, there is no substantial question of law for consideration in a second appeal filed under Section 100 of the Code of Civil Procedure. Therefore, I see no reason to interfere with the judgments.

Having arrived at the above conclusion, keeping in view, the submission made by the learned counsel for the appellant that the respondent has already levied the execution proceedings and delivery warrant has been issued, I am of the opinion that some time would have to be granted to the appellant herein to voluntarily vacate from the premises, subject to the condition that the appellant shall file an undertaking affidavit in the Registry of this office to voluntarily vacate and also pay the entire arrears of rent at the rate of Rs. 1,000/- per month including the amount as has been decreed by the Trial Court and thereafter for the subsequent months till this date. The arrears of the amount shall be paid within a period of six weeks. In so far as the undertaking, the appellant shall file the same in the Registry within two weeks stating therein that the appellant would voluntarily vacate from the premises within three months from this date. If the undertaking is filed in the Registry within two weeks and the acknowledgement for the same is furnished before the Executing Court, the Executing Court shall keep the delivery warrant in abeyance for a period of three months. If at the end of the three months, the appellant has not voluntarily vacated from the premises, the delivery warrant shall be executed and possession be taken. In addition, if the appellant does not voluntarily vacate the premises, the appellant can also be proceeded against for violating the undertaking given to this Court.

In terms of the above, the appeal stands disposed of.