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Judgment
Aggrieved by the order dated 09.09.2014 of the learned XXVIII Additional Chief Judge, City Civil Court, Secunderabad, in A.S.No.5 of 2010
reversing the judgment dated 05.10.2009 in O.S.No.562 of 2007 on the file of the learned III Senior Civil Judge, City Civil Court, Secunderabad, the
plaintiffs preferred this appeal.
The appellants herein are the plaintiffs and the first and second respondents herein are the defendants in O.S.No.562 of 2007. For the sake of
convenience, the parties hereinafter are referred to as they are arrayed in the said suit.
The substantial questions of law raised by the appellants are as follows:
i) Whether the Appellate Court erred in remanding the matter (against the settled legal principle) for the purpose of framing of additional issue
regarding issuance, service and validity of statutory notice and for recording fresh evidence, if necessary, on that aspect, when there is evidence let in
by both the sides fully knowing the rival case and also finding is arrived at by the trial Court relating thereto on page 4 of the judgment?
ii) Whether the Appellate Court failed to take into consideration the aspect that evidence to be let in by the parties on Issue No.1 i.e. ‘whether the
plaintiffs are entitled to possession of the suit schedule property from the defendants’ includes evidence on the aspect regarding issuance, service
and validity of the quit notice?
iii) Whether the Appellate Court failed to take into consideration the true purport of Ex.A.1 & A.2 to A7 & A9 keeping in view the basic presumption
that arises as to proper service under Section 114 of the Evidence Act, 1872?
O.S.No.562 of 2007 is filed by the landlords/plaintiffs against the tenants/defendants seeking eviction from the suit schedule property and for
arrears of rent. It was decreed by judgment dated 05.10.2009. Aggrieved by the same, the defendants in the suit preferred an appeal and the appellate
Court by its order dated 09.09.2014 allowed the appeal and remanded the matter to the trial Court to frame the following issue as an additional issue.
‘Whether the plaintiffs have issued statutory notice to the defendants, if so, whether it is valid and served on the defendants?’
Aggrieved by the said judgment, this Civil Miscellaneous Appeal is preferred.
Learned counsel for the plaintiffs would contend that the plaintiffs have stated in the plaint that they got issued notice of termination dated
07.07.2007 under Document No.1 through registered post with acknowledgment due and also under certificate of posting as per Document Nos.2 to
As the acknowledgment was not received from the postal department, they addressed a letter dated 30.07.2007 to the postal department under
Document No.5 and that the postal department informed that the matter is under consideration as per Document No.6. Ultimately the postal
department issued certificate dated 31.07.2007 saying that the registered covers were delivered to the addresses on 11.07.2007 itself as per Document
No.7. Learned counsel for the plaintiffs would further contend that in spite of receipt of the said notice, the defendants have not vacated the premises
and not paid the arrears of rent and as such they filed the suit for eviction.
The defendants in their written statement denied issuance of notice under Section 106 of the Transfer of Property Act and requested the Court to
dismiss the suit on that ground alone. They would further contend that the documents dated 07.07.2007 and 31.07.2007 are fabricated.
The trial Court though failed to frame an issue, considered the entire evidence on record and gave finding in the tenth paragraph middle of the
judgment saying that ‘Ex.A1 is the notice terminating the lease and it was duly served on the defendant as certified by the postal department. As
such the lease was validly terminated by the plaintiff and there is no tenable ground on behalf of defendant to continue in the suit schedule
property.’
Learned counsel for the appellants relied upon the case law reported in JEGANNATHAN V/s. RAJU SIGAMANI AIR 2013 SC 3788 with
regard to maintainability of the appeal. But the learned counsel for the respondents fairly conceded that they are not disputing the maintainability of the
appeal. Learned counsel for the appellants also cited a case law reported in T.KRISHNA GOUD V/s. SABIHA KAMALUDDIN (2010) 6 ALD
153 (DB), this Court held in paras 9 and 10 as follows:
‘Order 14, Rule 5 C.P.C. enables the Court to amend issues or frame issues and also to strike out any issue that appears to be wrongly
framed or introduced before passing a decree. Any party to the suit can legitimately raise objection complaining non- framing of a
necessary issue or framing a wrong issue or to framed additional issues. The Court is amply empowered to consider any such objections
and incorporate such issues as are found to be necessary and correct. If no such objection is taken but invite judgment, it must be held that
such party has acquiesced of the judgment. Acquiescence is acceptance of a person, who, though aware of a defect or irregularity of a
legal proceeding, does not raise any objection to take a chance or decision in his own favour and will be disentitled to object the same at a
later stage, notwithstanding the duty of the Court to frame the issues as per Order XIV Rule1. Acquiescence disables the disputant. It is
manifest that both the parties having taken the respective stands on sub-lease and fully conscious of the controversy, adduced evidence on
the said controversy. The defendant relied on Exs.B.1 to B.3 which related to the litigation involving HPCL and sought to resist the suit
reliefs. The defendant even though sought to contend that he sold away the entire land, except oral statement, no proof was filed to support
the alleged sale. In the circumstances, it cannot be said that prejudice has been caused to the defendant by not framing the issue relating to
sub-lease.’
Learned counsel for the appellant would contend that mere non-framing of the issue is not fatal because the appellants have already stated about
issuance of the notice in the plaint and it was denied by the defendants in their written statement and the said aspect is within the knowledge of both
the parties, to which plaintiffs have already adduced evidence, which was considered by the trial Court and gave its finding on it, and thus, no prejudice
would cause to the respondents herein, and hence, remand of the matter on that sole ground is not proper and just.
Per contra, learned counsel for the respondents would submit that mere filing of Exs.A.1 to A.7 will not prove the service of notice against the
defendants since it is a statutory notice to be served before filing of the suit and that it is for the plaintiffs to prove the same before the Court. He
would further argue that the plaintiffs failed to examine the postal authorities to substantiate the same, and thus, the appellate Court rightly remanded
the matter and it needs no interference.
Perusal of the evidence on record and the documents filed before the trial Court would show that notice was issued by the appellants herein under
Ex.A.1. When the acknowledgments and covers are not received, the office of the appellants counsel addressed a letter to the Assistant Director of
Postal Department on 30.07.2007, to which the department gave reply stating that it is under consideration and later under Ex.A7 the department
clearly informed that ‘the article under reference was delivered to the addressee on 11.07.2007’. The notices were served to the correct
address of the defendants. To prove the same, the appellants filed copy of the notice and the postal acknowledgements. Further, the plaintiffs also sent
notice under Certificate of Posting and as such they filed Exs.A.6 and A.7 correspondence made by the postal department to substantiate their
version.
Considering the above factors, the trial Court held that there was proper issuance of notice, though the issue was not framed separately. The
appellate Court without going into the above aspects and considering the arguments of the respondents herein simply remanded the matter by
observing that ‘since absence of such issue obviously misguides the parties in leading the evidence in respect of the crucial aspect’. From the
record it is apparent that absolutely there is no misguidance between the parties. The respondents herein have not adduced any contra evidence. They
have not even taken objection regarding non-framing of issue before the trial Court. The appellants herein sought for clarification from the postal
department with regard to delivery of the notice and filed before the Court under Ex.A.7. As the notice was issued by the appellants herein under
Ex.A.1 and it was served upon the respondents under Ex.A.7, the argument of the learned counsel for the respondents merits no consideration. As
this appeal is preferred on the sole ground, considering the arguments of both the counsel, this Court finds that this appeal deserves to be allowed.
For the foregoing discussion, this appeal is allowed and the order dated 09.09.2014 of the learned XXVIII Additional Chief Judge, City Civil Court,
Secunderabad, in A.S.No.5 of 2010 is set aside and confirmed the judgment in O.S.No.562 of 2007 on the file of the learned III Senior Civil Judge,
City Civil Court, Secunderabad. There shall be no order as to costs.
Pending miscellaneous petitions, if any, shall also stand closed in the light of this final judgment.