Andhra Pradesh High Court – Amravati
Hindustan Pertroleum Corporation … vs Mr. Sanakkayyala Mahalakshmi on 26 December, 2024
APHC010031182019
IN THE HIGH COURT OF ANDHRA PRADESH
AT AMARAVATI [3397]
(Special Original Jurisdiction)
THURSDAY ,THE TWENTY SIXTH DAY OF DECEMBER
TWO THOUSAND AND TWENTY FOUR
PRESENT
THE HONOURABLE SRI JUSTICE VENUTHURUMALLI GOPALA
KRISHNA RAO
I.A.No.1 of 2024
IN/AND
SECOND APPEAL NO: 68/2019
Between:
Hindustan Pertroleum Corporation Limited ...APPELLANT
AND
Mr Sanakkayyala Mahalakshmi and Others ...RESPONDENT(S)
Counsel for the Appellant:
1. SAMBOJU BALA GOPAL
Counsel for the Respondent(S):
1. G L NAGESWAR RAO
The Court made the following:
VENUTHURUMALLI GOPALA KRISHNA RAO,J
HONOURABLE SRI JUSTICE V. GOPALA KRISHNA RAO
I.A.No.1 of 2024
IN/AND
Second Appeal No.68 of 2019
Common Judgment:
This second appeal under Section 100 of the Code of Civil Procedure
("C.P.C." for short) is filed aggrieved against the Judgment and decree dated
06.10.2018 in A.S.No.56 of 2014, on the file of the XII Additional District &
Sessions Judge, Vijayawada, confirming the Judgment and decree, dated
25.03.2014 in O.S.No.935 of 2011, on the file of Principal Senior Civil Judge,
Vijayawada.
2. The appellant herein is the 2nd defendant, the 1st respondent herein is
the plaintiff and 2nd respondent herein is the 1st defendant in O.S.No.935 of
2011, on the file of Principal Senior Civil Judge, Vijayawada.
3. The plaintiff initiated action in O.S.No.935 of 2011, on the file of
Principal Senior Civil Judge, Vijayawada, with a prayer to direct the 1st
defendant and his associate 2nd defendant to vacate and deliver the vacant
possession of the plaint schedule property in a good condition to the plaintiff;
to pass a decree for Rs.1,68,379/- with interest @ 24% per annum being the
arrears of rent and to direct the defendants to pay damages @ Rs.40,000/-
per month from the date of suit till the date of delivery of vacant possession; to
submit TDS Income Tax deductions at source certificate to the plaintiff by 1st
defendant for the last 3 years and up to date and for costs of the suit.
4. The learned Principal Senior Civil Judge, Vijayawada decreed the
suit with costs. Felt aggrieved of the same, the unsuccessful 2nd defendant in
the above said suit filed A.S.No.56 of 2014 before the XII Additional District &
Sessions Judge, Vijayawada. The learned XII Additional District & Sessions
Judge, Vijayawada, dismissed the first appeal by confirming the judgment and
decree passed by the trial Court. Aggrieved thereby, the unsuccessful 2 nd
defendant approached this Court by way of second appeal.
5. For the sake of convenience, both parties in the appeal will be
referred to as they are arrayed in the original suit.
6. The case of the plaintiff, in brief, as set out in the plaint averments in
O.S.No.935 of 2011, is as follows:
The plaintiff is the land-lady of the plaint schedule property. She leased
out the same to the 1st defendant under registered lease deed, dated
12.11.2003 for a period of twenty years i.e., from 01.11.2003 to 31.10.2023.
Later, with mutual understanding certain amendments were made to the lease
deed and registered it on 24.03.2005. As per the terms of lease deed, the 1st
defendant has to pay rent of Rs.35,700/- per month after deducting an amount
of Rs.3,677/- towards TDS and has to pay monthly rent of Rs.32,023/- but he
is not paying rents from June, 2009 in spite of requests made by the plaintiff.
As per clause 13 of the lease deed, if tenant committed default in payment of
rent, he is liable to pay penalty at 10% per annum for the rent payable on the
particular month without prejudice to her rights to demand the lessee to vacate
the schedule premises. Clause 23 of the lease deed further provides that in
the event the tenant commits default in payment of rent continuously for a
period of two months, the lease agreement stands cancelled at the option of
lessor. The 1st defendant not only paying the rent to the plaintiff, but also failed
to pay Municipal Taxes for the past one year. Though he is deducting TDS, he
did not issue them a certificate regarding deductions. In the said
circumstances, the plaintiff got issued a legal notice on 01.03.2010 stating that
the 1st defendant has committed default in payment of rents from June, 2009
till February, 2010. The said notice was acknowledged by the 1st defendant
and M/s. Hindustan Petroleum Corporation Limited i.e., 2nd defendant on
05.03.2010 and 08.03.2010 respectively. Another notice was also issued to
the defendants 1 and 2 by registered post with acknowledgement and it was
also acknowledged by 2nd defendant on 14.07.2011, but, the 1st defendant got
returned the same with endorsement as "intimated". Hence, the suit.
7. The 1st defendant remained set ex parte before the trial Court.
8. The 2nd defendant filed written statement before the trial Court
denying the averments in the plaint. The brief averments in the written
statement of 2nd defendant are as follows:
The 1st defendant has agreed to pay monthly rent to the plaintiff after
deducting TDS. The 2nd defendant is nowhere concerned with default
committed by 1st defendant. There was no demand for payment of rent from
plaintiff. The 2nd defendant is the sub-lessee of 1st defendant and that the 2nd
defendant has been following the terms and conditions of lease deeds, dated
12.11.2003 and 24.03.2005 executed in between plaintiff and 1st defendant.
As per the terms of sub-lease, the 2nd defendant is in possession of the suit
schedule property and regularly sending monthly rental by way of cheques to
the 1st defendant till the date and the same are being accepted. As per clause
34 of the lease deed, dated 24.03.2005 and sub-lease deed, dated
29.03.2005, the 2nd defendant can step into the shoes of the lessee in case of
breach of covenants and the lease deed between lessor and lessee in case of
breach of covenants of the lease between lessor and lessee. In such event,
the lessor shall give notice prior to three months to the sub-lessee for
necessary compliance and in such event, the 2nd defendant still step into the
shoes of 1st defendant and thereby agreed to abide by the terms and
conditions of the lease deed. As per clause 3(h) of the sub-lease deed, dated
29.03.2005, the plaintiff has no right to terminate the tenancy covered under
the aforesaid deed. The 2nd defendant has no knowledge about the alleged
default in payment of rentals by the 1st defendant to the plaintiff. Therefore, in
view of the said default, the 2nd defendant will be stepped into the shoes of
lessee and he is ready and willing to pay the rents to the plaintiff. As the 2nd
defendant has been regularly paying rentals to the 1st defendant, he is in
possession of the property. Therefore, the question of default does not arise.
As such, the 2nd defendant prayed to dismiss the suit.
9. On the basis of above pleadings, the learned Principal Senior Civil
Judge, Vijayawada, framed the following issues for trial:
(1) Whether the plaintiff is entitled to evict the defendants?
(2) Whether the plaintiff is entitled to recovery Rs.1,68,379/- with
interest @ 24% per annum?
(3) Whether the plaintiff is entitled for damages @ Rs.40,000/- per
month?
(4) To what relief?
10. During the course of trial in the trial Court, on behalf of the plaintiff,
P.W.1 was examined and Exs.A.1 to A.9 were marked. On behalf of the 2 nd
defendant, D.W.1 and D.W.2 were examined and Exs.B.1 to Ex.B.3 were
marked.
11. The learned Principal Senior Civil Judge, Vijayawada, after
conclusion of trial, on hearing the arguments of both sides and on
consideration of oral and documentary evidence on record, decreed the suit
with costs. Felt aggrieved thereby, the unsuccessful 2nd defendant filed the
appeal suit in A.S.No.56 of 2014 before the learned XII Additional District &
Sessions Judge, Vijayawada, wherein, the following points came up for
consideration.
(1) Whether the suit is liable to be dismissed for non-seeking of
permission of Court to prosecute the suit by her son?
(2) Whether the defendants committed default in payment of rents
and thereby plaintiff is entitled to seek eviction of them from
schedule property?
(3) Whether the decree and judgment, dated 25.03.2014 passed in
O.S.No.935 of 2011, on the file of Principal Senior Civil Judge,
Vijayawada, is in accordance with law and if not, whether the
judgment in O.S.No.935 of 2011, dated 25.03.2014 is required to
be set-aside?
12. The learned XII Additional District & Sessions Judge, Vijayawada
i.e., the first appellate Judge, after hearing the arguments, answered the
points, as above, against the 2nd defendant/appellant and in favour of the
plaintiff/1st respondent and dismissed the appeal filed by the 2nd defendant.
Felt aggrieved of the same, the unsuccessful 2nd defendant in O.S.No.935 of
2011 filed the present second appeal before this Court.
13. On hearing both side counsels at the time of admission of the
appeal, on 19.03.2019, the following substantial questions of law are framed:
(1) Whether both the Courts below were justified in decreeing the suit
filed by the plaintiff, who has not complied with the terms and conditions
stipulated in the registered lease deed, dated 12.11.2003 bearing
Document No.2962 of 2003 and amended lease deed, dated 24.03.2005
bearing Document No.1089 of 2005 while terminating the lease of said
deeds?
(2) Is the quit notice, dated 12.07.2011 issued by the plaintiff is in
accordance with clause 34 of the lease deed, dated 24.03.2005, if not
whether the suit is maintainable under law?
(3) Whether the cause of action for the suit is correct in view of the bad
notice of eviction?
(4) Whether the default in payment of rents committed by the lessee/1 st
defendant fastens the default on the part of the appellant/2 nd defendant
as per the terms and conditions of the sub-lease deed, dated
24.03.2005?
(5) Whether procedure under Rules 32 and 33 of the Civil Rules of
Practice are properly appreciated or applied to the case?
(6) Whether the suit is maintainable without filing the power of attorney
executed by the plaintiff?
14. Heard Sri S. Balagopal, learned counsel for the appellant and Sri
G.L. Nageswar Rao, learned counsel for the 1st respondent.
15. Learned counsel for the appellant would contend that the trial Court
instead of dismissing the suit, decreed the suit, though the plaintiff failed to
obtain permission from the trial Court to institute the suit in a representative
capacity. He would further contend that both the Courts below forgotten the
procedure contemplated under Rule 32 of the Civil Rules of Practice which is
meant for filing General Power of Attorney, but not other instances. He would
further contend that both the Courts below erred in allowing the authorized
representative of the plaintiff to give evidence as if he is a party to the
proceedings. He would further contend that the Courts below failed to observe
that the appellant/2nd defendant has been making payment of rents to the 1st
defendant, as such, there is no default on the part of the appellant for non-
receipt of the rents.
16. Per contra, learned counsel for 1st respondent/plaintiff would
contend that the suit is filed for representative capacity and both the Courts
below on appreciation of the entire evidence on record came to a conclusion
and trial Court decreed the suit and the 1st appellate court rightly dismissed
the appeal filed by the appellant. He would further contend that by confirming
the decree and judgment passed by both the Courts below, the second appeal
may be dismissed.
17. In a second appeal filed under Section 100 of the Code of Civil
Procedure, this Court is normally not expected to reproduce the evidence on
record. It shall not reverse the 1st appellate Court judgment expect under a
few situations. If it is found that the material on relevant evidence was not
considered by the 1st appellate court and if considered it would have lead to
an opposite conclusion, is one instance where this Court is entitled to
interfere. The other situation is when the findings of the facts were arrived by
the 1st appellate Court by placing reliance on inadmissible evidence, which if it
was omitted, an appropriate conclusion was possible. It is on such occasions
also this Court can interfere. It is also relevant to say that if the judgment of
both the Courts below are contrary to mandatory provisions of the law
applicable to the case, then also an interference under Section 100 of the
Code of Civil Procedure is permissible.
18. Learned counsel for the appellant would contend that both the
Courts below completely forgotten the procedure contemplated under Rule 32
of the Civil Rules of Practice which is meant for filing General Power of
Attorney, but not other instances and the trial Court allowed P.W.1 to give
evidence as if he is a party to the proceedings. He would further contend that
in the plaint itself the name of the plaintiff is shown as one Smt. Sanakkayala
Mahalakshmi and the plaint was signed by one Sanakkayala Srinivasa Rao,
but no General Power of Attorney is filed and no permission is obtained from
the Court to prosecute the case. The material on record shows that a petition
is filed under Rule 32 of the Civil Rules of Practice with an authorization letter
given by the mother of P.W.1 by name Sanakkayala Mahalakshmi in favour of
her son Sanakkayala Srinivasa Rao. The recitals in the affidavit of the son of
plaintiff by name Sanakkayala Srinivasa Rao go to show that his mother
authorized him to appear on her behalf and to sign in the suit proceedings on
her behalf and that the authorization was given by her was in force by the said
date and authorization letter, dated 15.07.2011 which was given by the mother
of P.W.1 is also filed into the Court. The said petition was not placed before
the Presiding Officer for orders before the bench by the office of the trial
Court. It seems that no objection was raised by the appellant during the
course of trial before the trial Court at the time of filing chief examination
affidavit by the son of the plaintiff as P.W.1. It was suggested to P.W.1 in
cross examination by the learned counsel for the appellant that no
authorization was given to him to come into Court and the said suggestion
was denied by P.W.1. The plaintiff asserts in cross examination itself that
there was an authorization letter from his mother.
19. Learned counsel for the appellant relied on Kanadapudi Bharathy
and others vs. Authority Under Section of A.P.S.E. Act-cum-Labour
Officer, Machilipatnam and others 1 wherein the composite High Court of
Andhra Pradesh at Hyderabad held as follows:
"I am of the considered view that word 'acts' used in Rule 2, Order 3 CPC
does not include the act of Power of Attorney Holder to appear as a
witness on behalf of the petitioners. Power of Attorney Holder of a party
can appear only as a witness in his personal capacity to speak about the
facts which are within his personal knowledge about the case, but, he
cannot appear as a witness on behalf of a party in the capacity of that
party. It has been observed in the impugned Order that the executant of
General Power of Attorney by name Bharathi has been attending to her
cases personally and non-examination of her in A.P.S.C. No. 4 of 1996
will result in great injustice to the second respondent. In this context, it is
also relevant to refer to Section 118 of the Indian Evidence Act which
reads that "all persons shall be competent to testify unless the Court
considers that they are prevented from understanding the questions put
to them or giving rational answers to those questions, by tender years,
extreme old age, disease, whether of body or mind, or any other cause
of the same kind". Thus, testimonial compulsion is the very foundation of
the Law of Evidence for without such compulsion every refusal to give
evidence will render administration of justice impossible."
Learned counsel for the appellant relied on another case of G. Gayathri
and others vs. M. Bhagyalakshmi and others2 wherein the composite High
Court of Andhra Pradesh at Hyderabad held as follows:
To consider this question, it is appropriate to refer to the provisions of
Order XVIII Rule 3A of the Code of Civil Procedure, which reads thus:
1
1999 (3) ALD 420
2
2009(1)ALD 421
Where a party himself wishes to appear as a witness, he
shall so appear before any other witness on his behalf has
been examined, unless the Court, for reasons to be
recorded, permits him to appear as his own witness at a
later stage.
In the case on hand, in the cause title of the plaint itself it was
mentioned as Smt. Sanakkayala Mahalakshmi, W/o Bhaskara Rao,
represented by Sanakkayala Srinivasa Rao (son), Bhaskar Automobiles, 5th
Road, Autonagar, Vijayawada. Admittedly, the said Srinivasa Rao verified and
signed the plaint and moreover, P.W.1 is not a third party, he is none other
than the son of the plaintiff. No objection was raised by the licensee/1st
defendant. The 1st defendant remained set ex parte before the trial Court and
the 1st defendant also did not appear before the 1st appellate Court, though he
received notice from the 1st appellate Court. The plaintiff relied on the sole
evidence of P.W.1. P.W.1 is none other than the son of the plaintiff. P.W.1 is
not a third party. He is having knowledge about Ex.A.1 and Ex.A.2 documents,
based on which the suit is filed.
20. It is relevant to say that the Court has to appreciate the evidence on
record and it is the duty of the trial Court to test the evidence of P.W.1 before
accepting the evidence of P.W.1. The Trial Court and 1st appellate Court
appreciated the evidence on record and accepted the evidence of P.W.1. Now
at the second appeal stage, the appellant is not supposed to raise these types
of technical objections. It is needless to state that the suit is based on Ex.A.1
and Ex.A.2 agreements, which are in between the plaintiff and 1st defendant,
but for the reasons best know to the 1st defendant, he did not appear before
the Court. The agreement is in between lessor and lessee and lessor is the
plaintiff and lessee is the 1st defendant and the 1st defendant is remained set
ex parte throughout the suit proceedings in the trial Court and the 1st
defendant did not appear before the 1st appellate Court and he also did not
contest before this Court.
21. As stated supra, the authorization was given by the plaintiff i.e.,
mother of P.W.1, which is on the record of the trial Court and by giving
reasons, the trial Court and 1st appellate Court held that it is a mistake of the
office of the Trial Court for not placing the petition before Presiding Officer of
the trial Court and the party cannot be suffered due to latches committed by
the office of the trial Court. Moreover, an affidavit is filed by P.W.1 by filing
petition along with authorization letter given by the plaintiff i.e., mother to his
son P.W.1 by authorizing P.W.1 to sign in all the proceedings on her behalf.
Moreover, the plaint was signed by P.W.1 in a representative capacity.
Furthermore, the appellant/2nd defendant did not plead in the written
statement that the person who verified and signed the plaint has no authority
to sign it and that the suit is not maintainable. As noticed supra, original lessee
is remained set ex parte throughout the suit proceedings. The suit is based on
Ex.A.1 and Ex.A.2 agreements. Ex.A.1 and Ex.A.2 agreements are in
between plaintiff and 1st defendant and 2nd defendant is a sub-lessee under
Ex.B.1. Ex.B.1 is in between the 1st defendant and 2nd defendant and plaintiff
is a third party to Ex.B.1.
22. It is well settled that in the absence of pleadings, evidence, if any,
produced by the parties cannot be considered. It is also equally well settled
that no party should be permitted to travel beyond its pleading and that all
necessary and material facts should be pleaded by the party in support of the
case set up by it. The object and purpose of the pleading is to enable the
other party to know the case which was pleaded by the plaintiff.
23. It is also well settled that a decision of the case cannot be based on
grounds outside pleadings of the parties, no evidence is permissible to be
taken on record in the absence of pleadings in that aspect and no party can
be permitted to travel beyond its pleading and in the absence of any pleadings
in the plaint, contrary to the pleadings, evidence adduced by the parties
cannot be looked into. This proposition is well supported by a catena of
judgments. In the case of Bachhaj Nahar v. Nilima Mandal3, the Apex Court
held as follows:
"13. The object of issues is to identify from the pleadings the questions or
points required to be decided by the courts so as to enable parties to let in
evidence thereon. When the facts necessary to make out a particular claim,
or to seek a particular relief, are not found in the plaint, the court cannot focus
the attention of the parties, or its own attention on that claim or relief, by
framing an appropriate issue. As a result, the defendant does not get an
opportunity to place the facts and contentions necessary to repudiate or
challenge such a claim or relief. Therefore, the court cannot, on finding that
the plaintiff has not made out the case put forth by him, grant some other
relief. The question before a court is not whether there is some material on
the basis of which some relief can be granted. The question is whether any
relief can be granted, when the defendant had no opportunity to show that the
relief proposed by the court could not be granted. When there is no prayer for
a particular relief and no pleadings to support such a relief, and when the
defendant has no opportunity to resist or oppose such a relief, if the court
considers and grants such a relief, it will lead to miscarriage of justice. Thus it
is said that no amount of evidence, on a plea that is not put forward in the
pleadings, can be looked into to grant any relief."
24. Therefore, the legal position in this regard has been well settled by
the Apex Court in a catena of judgments that in the absence of any pleading in
the written statement, evidence adduced by the defendant contrary to the
pleadings cannot be looked into and cannot be taken into consideration. The
law is also well settled that an issue has been framed on considering the
pleadings taken by both the parties, in the absence of pleadings the court
cannot make out a case not pleaded. It is also more important that without any
pleading before the trial Court, oral contention of the parties cannot be looked
into and no credence will be given to the oral contention taken by the parties
without any pleadings.
3
(2008) 17 SCC 491
25. For the aforesaid reasons, I am unable to accept the contention of
the learned counsel for the appellant that the entire suit proceedings are
vitiated and the evidence of P.W.1 cannot be considered and P.W.1 has no
authority to sign on the plaint.
26. P.W.1 is none other than the son of plaintiff. He reiterated the
averments of the plaint in his evidence. Ex.A.1 to Ex.A.9 are got marked
through P.W.1. Ex.A.1 is the certified copy of lease deed, dated 12.11.2003.
Ex.A.2 is the amended copy of lease deed, dated 24.03.2005. The terms and
conditions in Ex.A.1 and Ex.A.2 are not yet disputed by the 1st defendant.
Both Ex.A.1 and Ex.A.2 are registered documents. As per clause 34, the
lessee has been permitted to sub-lease the premises to M/s.Hindustan
Petroleum Corporation Limited. The terms and conditions in clause 34 of
Ex.A.2 is reiterated as follows:
34.The lessee herein has been permitted to sub-lease the demisted
site/premises to M/s. Hindustan Petroleum Corporation Limited. Failure
to comply with any of the terms and conditions of this lease deed by the
lessee herein shall not take away the rights of sub-lease. M/s.Hindustan
Petroleum Corporation Limited, who will step into the shoes of the lessee
herein directly in case of any breach of covenants of this lease deed by
the lessee herein. In such an event, the lessor herein, shall give a notice
of three months to the sub-lessee for necessary compliance.
27. The terms and conditions in Ex.A.1 and Ex.A.2 are not yet denied
either by 1st defendant or appellant. Ex.A.3 is the legal notice said to have
been issued to the appellant, dated 01.03.2010 by informing the appellant that
the 1st defendant has committed default of payment of rents in respect of the
suit schedule premises from June, 2009 onwards and he paid rent in the
month of September, 2009 and he did not pay any further rents till so far and
that the 1st defendant committed default in payment of rents from June, 2009
onwards. The plaintiff also issued a legal notice, dated 12.07.2011 under
Ex.A.6. Ex.A.8 is the postal acknowledgement. As stated supra, initially the
plaintiff issued Ex.A.3 legal notice to the appellant, dated 01.03.2010 by
saying that the 1st defendant committed default in payment of rents from June,
2009 onwards and the appellant received the said legal notice and kept quite.
Again the plaintiff issued another legal notice under Ex.A.6 to the appellant by
reiterating the same terms and conditions mentioned in Ex.A.3 legal notice.
The receipt of legal notice by the appellant is proved by the plaintiff.
28. D.W.2 is the Area Sales Manager of the appellant. He admits in his
evidence in cross examination that he knows the 1st defendant is not making
any payment of rent and even though they got notice that the 1st defendant is
not paying any rent to the plaintiff, still they are making payments to the 1 st
defendant. He further admits the 1st defendant has been residing in United
States of America and they have not made any payment to the original owner
i.e., plaintiff in respect of the plaint schedule property even after receipt of
notice in the suit. He further admits as per the terms of Ex.B.1, they will
vacate the plaint schedule premises. He admits that Ex.A.5 certificate issued
by the postal authorities shows that Ex.A.3 notice was served on the 2 nd
defendant on 08.03.2010 and he also admits as per Ex.A.8 postal
acknowledgement, second notice was also served on their office on
14.03.2011. The above admissions of D.W.2 clearly go to show that the
appellant is having knowledge about the default of payment of rents
committed by the 1st defendant from 08.03.2010 itself. After receipt of two
legal notices also the appellant used to pay the rents to the 1st defendant and
the appellant did not pay any rent to the plaintiff even after receipt of two legal
notices from the plaintiff. D.W.2 further admits as per the terms of Ex.B.1, they
will vacate the suit schedule premises.
29. It is not in dispute that as per clause 3(h) amended lease deed if at
all the landlord intends to terminate the tenancy, she would give two months
prior notice to sub-lessee for necessary compliance. The material on record
reveals that Ex.A.3 legal notice was received by the 1st defendant on
08.03.2010. Ex.A.5 letter of postal authorities shows that Ex.A.3 legal notice
was delivered on 08.03.2010 on the appellant, the same was admitted by
D.W.2 in his evidence in cross examination itself. Ex.A.3 follows another legal
notice, dated 12.07.2011 and it was served on the appellant under Ex.A.8
postal acknowledgement. Though the appellant having knowledge about the
default of payment of rents by the 1st defendant on 08.03.2010 itself, the
appellant is continuing to pay the rents to the 1st defendant only. After having
knowledge of default of payment of rents by the 1st defendant since more than
one year the appellant also continued to pay the rents to the lessee, but not to
the original owner. The terms and conditions in Ex.A.1 and Ex.A.2 are binding
on the appellant, because the appellant as a sub-lessee steps into shoes of
lessee. The appellant cannot plead ignorance by saying that the terms and
conditions in Ex.A.1 and Ex.A.2 are not binding on the appellant, because the
appellant steps into the shoes of licensee directly as stated supra. In case the
1st defendant committed any breach of covenants of lease deed, the same are
binding on the sub-lessee.
30. The material on record reveals that the appellant received two legal
notices, dated 08.03.2010 and 14.07.2011 respectively. After receipt of two
legal notices also the appellant did not pay any rent to the original land-lady
i.e., the plaintiff. Though 2nd defendant is having knowledge of default of
payment of rents by the 1st defendant to the plaintiff, the appellant kept quiet
for about more than one year and also used to pay the rents to the 1st
defendant only. After receipt of Ex.A.6 legal notice, dated 14.07.2011 also the
appellant did not pay any rent to the plaintiff and that the plaintiff is
constrained to file the suit.
31. It is also relevant to say as per clause 34 in Ex.A.2, three months
notice has to be given to the appellant to pay the rents. In the case on hand,
the plaintiff issued a legal notice under Ex.A.3 in the month of March, 2010 the
appellant received the same on 08.03.2010, but kept quiet for a period of one
year three months and 2nd defendant is in possession of the suit schedule
premises without paying rents to the plaintiff. The appellant has been
scattering on the property without paying any rent to the land-lady and
committed willful default of payment of rents to the plaintiff. Therefore, the
appellant is liable to be evicted from the plaint schedule property. Both the
Courts below came to right conclusion on appreciating the evidence on record
and both the Courts below followed the principles of burden of proof and both
the Courts below arrived right conclusion by following the principles of settled
law. The trial Court and 1st appellate Court came to right conclusion that the
appellant has been committed willful default of payment of rents. Therefore,
the appellant is liable to be evicted from the suit schedule property.
I.A.No.1 of 2024:
32. The petitioner/1st respondent/plaintiff filed the petition under Order
41, Rule 27 of the Code of Civil Procedure with a prayer to receive the
documents enclosed along with the petition as an additional evidence. In the
affidavit of the petitioner, the petitioner contended that the petitioner herein is
advised to file the relevant documents which are new observations cropped up
during the pendency of the second appeal and those are relevant and
disputing facts in the second appeal and those documents are very essential
for proper adjudication of the matter and that the petitioner is constrained to
file this application.
33. The aforesaid averments in the affidavit of the petitioner clearly go
to show that those events are happened subsequent to the institution of the
second appeal. Therefore, those are not relevant to decide the present subject
matter of the dispute. As stated supra, the second appeal is instituted in the
year 2019 and the present application is filed in the month of November, 2024
at the fag end of the appeal. As noticed supra, the averments mentioned in
the affidavit itself goes to show that those events are happened subsequent to
the institution of the second appeal. Therefore, those are not relevant to
decide the subject matter of the present case.
34. In the result, the second appeal and I.A.No.1 of 2024 are dismissed.
Four months time is granted to the appellant to vacate the suit schedule
property and deliver the same to the plaintiff. Each party do bear their own
costs in the second appeal.
As a sequel, miscellaneous petitions, if any, pending in the Appeal shall
stand closed.
__________________________
V. GOPALA KRISHNA RAO, J.
DT. 26.12.2024.
PGR