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Ashok Kumar Gupta v/s Mamidi Prakash Manchala Prakash


Company & Directors' Information:- GUPTA CORPORATION PRIVATE LIMITED [Active] CIN = U40100MH2005PTC154038

Company & Directors' Information:- M R GUPTA AND COMPANY PRIVATE LIMITED [Active] CIN = U74899DL1992PTC051324

Company & Directors' Information:- GUPTA INDIA PRIVATE LIMITED [Active] CIN = U51311DL1996PTC077255

Company & Directors' Information:- GUPTA AND COMPANY PRIVATE LIMITED [Active] CIN = U52110DL1974PTC007339

Company & Directors' Information:- GUPTA AND GUPTA PRIVATE LIMITED [Active] CIN = U55204DL1954PTC002390

Company & Directors' Information:- S K GUPTA PRIVATE LIMITED [Active] CIN = U26900MH1973PTC016294

Company & Directors' Information:- ASHOK AND CO INDIA PVT LTD [Active] CIN = U15549AS1992PTC003756

Company & Directors' Information:- R. K. GUPTA AND COMPANY INDIA PRIVATE LIMITED [Active] CIN = U74899DL1993PTC052138

Company & Directors' Information:- B R GUPTA AND COMPANY PRIVATE LIMITED [Active] CIN = U63013DL2000PTC107343

Company & Directors' Information:- T N GUPTA PVT LTD [Active] CIN = U02005WB1951PTC020141

Company & Directors' Information:- T S ASHOK & CO PRIVATE LIMITED [Active] CIN = U45201OR2011PTC012981

Company & Directors' Information:- ASHOK AND COMPANY PRIVATE LIMITED [Active] CIN = U74899DL1986PTC024382

Company & Directors' Information:- A V GUPTA AND COMPANY PRIVATE LIMITED [Converted to LLP] CIN = U24239DL1999PTC102248

Company & Directors' Information:- Y P GUPTA AND COMPANY PVT LTD [Under Process of Striking Off] CIN = U74899DL1983PTC016661

Company & Directors' Information:- J S GUPTA AND CO PVT LTD [Strike Off] CIN = U20211UP1975PTC004078

Company & Directors' Information:- M K GUPTA AND CO PRIVATE LTD [Strike Off] CIN = U74999DL1979PTC009517

Company & Directors' Information:- A J GUPTA AND CO PRIVATE LIMITED [Strike Off] CIN = U74210UP1980PTC004986

Company & Directors' Information:- D. R. GUPTA & COMPANY PRIVATE LIMITED [Strike Off] CIN = U74899DL1944PTC000794

Company & Directors' Information:- S P GUPTA AND CO PVT LTD [Strike Off] CIN = U26932RJ1972PTC001459

Company & Directors' Information:- PRAKASH & CO PVT LTD [Strike Off] CIN = U51909WB1938PTC009417

Company & Directors' Information:- ASHOK KUMAR GUPTA AND CO PRIVATE LIMITED [Strike Off] CIN = U99999DL1972PTC005953

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    Civil Revision Petition No. 627 of 2020

    Decided On, 27 November 2020

    At, High Court of for the State of Telangana

    By, THE HONOURABLE MS. JUSTICE G. SRI DEVI

    For the Appearing Parties: T.V. Kalyan Singh, Y.S. Yella Nand Gupta, Advocates.



Judgment Text

1. The present Civil Revision Petition is filed under Section 115 of C.P.C., questioning the order, dated 14.02.2020, passed in E.P.No.163 of 2015 in O.S.No.378 of 2010 on the file of the Principal Junior Civil Judge, Nizamabad, wherein and whereunder the petition filed by the respondent/Decree Holder for delivery of possession of E.P. Scheduled Property in his favour, was allowed and ordered issuance of notice under Order 21 Rule 35 of C.P.C. to the petitioner/Judgment Debtor.2. The brief facts which led to filing of the present Civil Revision Petition are that the respondent herein, who is the landlord of the scheduled property, filed O.S.No.378 of 2010 seeking eviction of the petitioner herein from the scheduled property and for recovery of arrears of rent of Rs.20,000/-. Vide judgment and decree, dated 23.06.2014, the learned Principal Junior Civil Judge, Nizamabad, decreed the said suit directing the petitioner herein to vacate the suit scheduled property and deposit arrears of rent of Rs.20,000/- and also to handover the vacant physical possession thereof to the respondent within two months from the date of judgment and decree, failing which, the respondent is entitled to get the same vacated through process of Court at the expenses of petitioner. Aggrieved by the said judgment, the petitioner, who is the defendant in the suit, filed A.S.No.22 of 2014. Along with the appeal, the petitioner filed I.A.No.990 of 2014 seeking stay of execution of the decree dated 23.06.2014 and that the learned I-Additional District Judge, Nizamabad, vide order dated 27.08.2014 granted interim stay of execution of decree subject to the condition of the petitioner depositing rent at Rs.1,000/- per month to the credit of the suit for the period from April, 2010 to July, 2014, within a week from the date of order and shall continue to deposit the rent at that rate, on or before 5th of every succeeding month. The stay order has been challenged by the respondent before this Court by filing C.R.P.No.3766 of 2014. By an order, dated 27.12.2014, while disposing of the said C.R.P, this Court modified the order of the appellate Court to the following extent:"The respondent/tenant shall deposit an amount of Rs.2,000/- per month instead of Rs.1,000/- per month to the credit of the suit. The arrears shall be deposited at the rate of Rs.2,000/- per month from April, 2010 till date in two instalments on or before 31.03.2015 and the petitioner/landlord is entitled to withdraw the same. It is needless to mention that the amounts paid earlier shall be given credit to. Further, the respondent/tenant shall continue to pay rent at the rate of Rs.2,500/- per month till the disposal of the appeal. It is made clear that in case of non-compliance of the stipulated condition, the stay granted by the lower appellate Court shall automatically stand vacated and this Court does not consider any extension of time for compliance of the imposed condition."3. As the petitioner herein has failed to comply with the order of this Court in C.R.P.No.3766 of 2014, the stay order stood vacated and as such, the respondent/D.Hr filed E.P.No.163 of 2015 seeking to evict the petitioner/J.Dr from the suit scheduled property and deliver vacant possession of the same. The petitioner/J.Dr filed counter, inter alia, contending that he has complied with the order by depositing monthly rent as per the decree and as such he is not liable to be evicted from the premises. He further contended that vacant possession of the suit scheduled property cannot be given to the decree holder when the appeal against eviction is pending adjudication. He further contended that monthly rent of the premises is only Rs.1,000/- and hence the Rent Controller has got jurisdiction to try the matter and not the Junior Civil Judge. He further contended that there was no proper termination of lease and as such the suit filed for eviction and for arrears of rent from April, 2010 to July, 2010 at Rs.4,000/- per month was not tenable. He also contended that the issues with regard to the legal aspect of lack of jurisdiction and non-termination of lease were not framed and considered by all the Courts and that the tenancy was not legally terminated as per Section 106 of the Transfer of Property Act and as such till the lease is terminated, tenant cannot be evicted from the premises. Hence, when the decree, which is sought to be executed, is a nullity, the Court cannot execute the decree.4. After considering the aforesaid rival submissions, the Court below allowed the E.P. Challenging the same, the present Civil Revision Petition is filed by the petitioner/J.Dr.5. Heard learned Counsel for the petitioner/judgment debtor/tenant, learned Counsel for the respondent/decree holder/landlord and perused the material placed on record.6. Learned Counsel for the petitioner/Judgment debtor would submit that the Court below failed to consider that the petitioner herein is a tenant and the respondent herein is a landlord and the present order passed under Order XXI Rule 35 of C.P.C., is bad in law and is liable to be set aside as Order XXI Rule 36 of C.P.C., is applicable in case of execution of eviction decree and not order XXI Rule 35 of C.P.C. He further submits that the Court below failed to consider that the prayer in the execution petition is made under Order XXI Rules 97 and 99 of C.P.C., to evict the petitioner, where as the said provision is not applicable in case of execution of eviction decree. He also submits that this Court in C.R.P.No.3766 of 2014 directs the trial Court look into the decree and redraft it in specific terms of the judgment dated 23.06.2014, as the same is not in conformity with the judgment, but the same has not been done. He further submits that the E.P. is filed without redrafting the decree as directed by this Court and as such the decree cannot be executed and the order passed basing upon the said decree is liable to be set aside. He further submits that the Court below failed to consider that O.S.No.378 of 2010 is filed for eviction in respect of the leased premises in which the respondent claimed the rent at Rs.4,000/- per month and the petitioner disputed the said quantum of rent and alleged that the rent is only Rs.1,000/- per month, however, the trial Court decreed the suit granted eviction without granting arrears of rent at Rs.4,000/- per month. He further submits that when the decree of the trial Court is not for Rs.4,000/- per month as arrears of rent, it will not have power to grant a decree of eviction as suits for eviction is maintainable only if the rent is above Rs.3,500/- and in case the rent is below Rs.3,500/- then under the provisions of Section 32 (c) of the Rent Control Act, 1960, the eviction proceedings has to be under the Rent Control Act and not under the Transfer of Property Act and as such, the decree in O.S.No.378 of 2010 is nullity and cannot be executed. He also submits that the Court below failed to consider that the legality of the decree can be challenged in execution proceedings also and hence prayed to allow the Civil Revision Petition.7. Learned Counsel for the respondent/Decree Holder would submit that the dispute with regard to the quantum of rent, which decides the jurisdiction of the Court, has already been adjudicated by the trial Court and as such the trial Court has got jurisdiction to entertain the suit. He further submits that mere not framing of issue is not fatal to the suit when the dispute raised was considered and decided by the trial Court, which was confirmed by the lower appellate Court as well as this Court in Second Appeal.8. As seen from the record, admitted facts are that the respondent is the landlord and the petitioner is the tenant. The respondent filed O.S.No.378 of 2010 against the petitioner for his eviction from the suit scheduled property and for recovery of arrears of rent of Rs.20,000/-. After considering the evidence of P.Ws.1 and 2, the trial Court decreed the said suit vide judgment and decree, dated 23.06.2014 directing the petitioner/J.Dr./defendant to vacate the suit scheduled property and also deposit arrears of rent and hand over vacant physical possession to the respondent/ D.Hr/plaintiff. Aggrieved by the same, the petitioner herein filed A.S.No.22 of 2014 and that the learned I-Additional District Judge, Nizamabad, by its judgment and decree, dated 20.02.2019, dismissed the appeal with costs. Challenging the same, the petitioner herein filed S.A.No.147 of 2019 before this Court. Vide judgment and decree, dated 07.06.2019, another co-ordinate Bench of this Court dismissed the said Second Appeal. Aggrieved by the judgment in Second Appeal, the petitioner herein preferred Special Leave to Appeal (C) No.29298 of 2019 before the Apex Court and the same was also dismissed vide order, dated 16.12.2019.9. The first contention of the petitioner is that the civil Courts have no jurisdiction to order eviction of the petitioner from the suit scheduled property as the rent payable was only Rs.1,000/- per month as on the date of filing of suit and that the findings of the trial Court as well as both the appellate Courts that the quantum of monthly rent at Rs.4,000/- is perverse and contrary to the evidence on record.10. From a perusal of the judgments of the trial Court in O.S.No.378 of 2010, as well as the lower appellate Court in A.S.No.22 of 2014 and this Court in S.A.No.147 of 2019, it is evident that, relying on the evidence of P.Ws.1 and 2 and Ex.A1, a concurrent finding of fact has been given by all the Courts with regard to the quantum of rent as on the date of filing the suit and the petitioner/judgment debtor/defendant failed to adduce any oral or documentary evidence to establish that the monthly rent is at Rs.1,000/- and that the civil Court has got no jurisdiction to entertain the suit. Therefore, the issue on the point of jurisdiction has already been decided by the trial Court, lower appellate Court and this Court in Second Appeal.11. The second contention of the petitioner is t

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hat the lease was not properly terminated and as such the suit was not tenable. A perusal of the material on record would show that the respondent got issued a legal notice-Ex.A1 demanding the petitioner to vacate the premises and handover the vacant possession and also payment of rents. In view of the issuance of legal notice, it is clear that the respondent is not intended to continue the lease and as such he terminated the lease and demanded vacant possession. Since the rent was accepted at Rs.4,000/- per month from 01.04.2010 and the legal notice-Ex.A1 issued under Section 106 of the Transfer of Property Act has been held to be valid, the order passed by the Court below cannot be said to be illegal warranting interference by this Court and I do not find any merit in the Civil Revision Petition.12. Accordingly, the Civil Revision Petition is dismissed, confirming the order, dated 14.02.2020, passed in E.P.No.163 of 2015 in O.S.No.378 of 2010 on the file of the Principal Junior Civil Judge, Nizamabad. There shall be no order as to costs.13. Miscellaneous petitions, if any, pending shall stand closed.
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