TELAKUNTA VEERAIAH Vs. B BHAVANI SHANKARAMMA

JUDGEMENT

(1.) Defendants in O. S. No. 2433 of 1974 in the Court of the VI Assistant Judge, City Civill Court, Hyderabad, are the appellants herein. The respondents plaintiffs filed a suit for eviction against the defendants in respect of ths suit property, viz, vacant site of about 400 sq , yards and the shed bearing municipal number 1-8-518/16/2 standing therein, situated in Temple Street, Chikkadpalli, Hyderabad It was claimed that the vacant site of about 400 Sq. Yards in extent and the shed bearing municipal number 1st 1-8 518/ 16/2 situated at Chikkadpalli, Hyderabad, were leased in favour of the appellants herein with effect from 1st September, 1963, on a rental of Rs. 40 per month. It was claimed that initially the lease was oral, but later on rental deeds were executed on 1st January, 1965, 1st July, 1966 and 1st October, 1967. There was an increase in the rent to Rs. 65 under the lease deed dated 1st October, 1967. On the ground that the above mentioned property was bona fide required for purposes of development, the respondents required the appellants to vacate the premises and deliver possession. The notices issued by the respondents evoked no response from the appellants, Eventually the above suit was filed for eviction of the appellants from the suit premises. It may be mentioned that the appellants set up several points in defence in the written statement. One of the pleas raised by them in the written statement was that the provisions of the Renf Control Act dp apply and the trial Court has no jurisdiction to entertain the suit. (Vide: Paragraph-7 of written statement). The trial Court, after framing appropriate issues, decreed the suit and ordered eviction of the appellants from the suit premises. It may be mentioned that one of the issues framed by the trial Court was "whether this Court has no jurisdiction to try the suit", Dealing with this issue, in particular the trial Court observed that the defendants (appellants) cannot contend that the structures were construsted prior to August, 1957. The trial Court, therefore, held that it had jurisdiction to decide the matter, as the provisions of the Andhra Pradesh Buildings (Lease, Rent and Eviction) Control Act, (hereinafter re erred to as the 'Act'), are not applicable to buildings constructed after August, 1957. It is not necessary for the purpose of this appeal to refer to various other issues, which were the subject matter of dispute and decided by the trial Court, as the controversy in the present appeal narrowed down to a very short point regarding the jurisdiction as will be pointed out later.

(2.) Against the order of the trial Court decreeing the suit and ordering eviction of the appellants from the suit premises, an appeal was filed in the Court of the Ilnd Additional Judge, City Civil Court, Hyderabad, in A. S. No. 215 of 1979. The lower appellate Court upheld the judgment of the trial Court and dismissed the appeal. Against the order of the lower, appellate Court, the appellants herein filed the present second appeal specifically formulating the following substantial questions of law:

(3.) Sri K. Janardhanarao, learned Counsel for the respondents, strongly objected to the appellant being accorded permission under the proviso to section 100(5) of the Code of Civil Procedure to raise the above question of law as a substantial question at the present stage. Learned Counsel also submitted that, on merits, the Act had no application to the present case. Attention has been invited to the fact that in the written statement filed by the appellants/ defendants the plea regarding the application of the provisions of the Act was taken without any basis and the trial Court held this plea to be unsustainable in view of the facts of the case. Thereafter, the appellants abandoned the plea before the lower appellate Court and also omitted to take this plea as a substantial question of law in the appellants had consciously waived the question regarding the application of the provisions of the Act and they should not, therefore, be allowed to raise such plea afresh during the course of hearing of the present second appeal. Learned Counsel drew my attention to the prevaricating statements made by the appellants throughout the proceedings in the trial Court as well as before the lower appellate Court. In the written statement, the appellants stated that they had taken on lease only the open hand for erecting sheds etc., for the purpose of starting business in coal and fire wood. (Paragraph-1 of the written statement) The appellants also stated in paragraph-2 of the written statement that the landlord had let out during his life time only tha open land upon which the appellants later on constructed sheds. The appellants had, therefore, taken the plea that what was taken on lease was only open lanc and the landlord was the owner only of such open land and the respondents were the owners of the sheds and structures standing on the land. The appellants further denied expressly that the landlord was the owner of the sheds and the structres. It was further stated that the appellants were carrying on business after putting the tin sheds and constructing the structures takan on lease. The appellants further contended that none of the sheds existing on the land was constructed by the owner. Learned Counsel submits that in the face of the above express pleas taken in the written statement, the plea in paragraph-7 that the provisions of the Rent Control Act were applicable to the open land was meaningless, becuase without a building there was no question of the provisions of the Rent Control Act being applicable.