APHC010442872025 IN THE HIGH COURT OF ANDHRA PRADESH FRIDAY, TWO THOUSAND AND TWENTY SIX THE HONOURABLE SRI JUSTICE CHEEKATI MANAVENDRANATH ROY SECOND APPEAL NO: Between: 1. SAB AUTO, REPRESENTED BY ITS PROPRIETOR, SRI TIRUMALASETTY SURESH KUMAR, S/O SATYANARAYANA, HINDU, AGED ABOUT 44 YEARS, GROUND FLOOR, RIO 45 JOSEPH ITC, GUNADALA, ELURU ROAD, VIJAYAWADA. 1. FRANCISCAN MISSIONARY BROTHER, Represented by its Superior,. Bro. P.T. Joseph, S/o Thomus, Christian, aged about 50 years, R/o 45 1-45, Gunadala, Vijayawada. Appeal under section ___________ against orderspleased to Set aside the impugned judgment of 2017 by the District Judge, Vijayawada and Set aside the judgment and decree dated 13.10.2016 passed in O.S. No. 143 of 20.16 by the Principal Civil Judge (Junior Division), Vijayawada and Declare tha dated 01-01-2016 is invalid and void ab initio for violation of Section 106(1) of the Transfer of Property Act, 1882 and Declare that the entire eviction proceedings are void ab initio for want of valid cause of action and Di the original suit (O.SNo.143 of 2016) with costs throughout and Pass IA NO: 1 OF 2026 Petition under Section 151 CPC praying that in the circumstances stated in the affidavit filed in support of the petition, the High Court may be pleased to IN THE HIGH COURT OF ANDHRA PRADESH AT AMARAVATI (Special Original Jurisdiction) THE THIRTIETH DAY OF JANUARY TWO THOUSAND AND TWENTY SIX PRESENT THE HONOURABLE SRI JUSTICE CHEEKATI MANAVENDRANATH ROY SECOND APPEAL NO: 19/2026 REPRESENTED BY ITS PROPRIETOR, SRI TIRUMALASETTY SURESH KUMAR, S/O SATYANARAYANA, HINDU, AGED ABOUT 44 YEARS, GROUND FLOOR, RIO 45 JOSEPH ITC, GUNADALA, ELURU ROAD, VIJAYAWADA. ...APPELLANT AND MISSIONARY BROTHER, Represented by its Superior,. Bro. P.T. Joseph, S/o Thomus, Christian, aged about 50 years, R/o 45 45, Gunadala, Vijayawada. ...RESPONDENT Appeal under section ___________ against orderspleased to Set aside the impugned judgment and decree dated 09.05.2025 passed in A.S. No. 117 of 2017 by the District Judge, Vijayawada and Set aside the judgment and decree dated 13.10.2016 passed in O.S. No. 143 of 20.16 by the Principal Civil Judge (Junior Division), Vijayawada and Declare that the quit notice 2016 is invalid and void ab initio for violation of Section 106(1) of the Transfer of Property Act, 1882 and Declare that the entire eviction proceedings are void ab initio for want of valid cause of action and Di 143 of 2016) with costs throughout and Pass Petition under Section 151 CPC praying that in the circumstances stated in the affidavit filed in support of the petition, the High Court may be pleased to IN THE HIGH COURT OF ANDHRA PRADESH [3163] THE THIRTIETH DAY OF JANUARY THE HONOURABLE SRI JUSTICE CHEEKATI MANAVENDRANATH ROY REPRESENTED BY ITS PROPRIETOR, SRI TIRUMALASETTY SURESH KUMAR, S/O SATYANARAYANA, HINDU, AGED ABOUT 44 YEARS, GROUND FLOOR, RIO 45-1-45, ST. JOSEPH ITC, GUNADALA, ELURU ROAD, VIJAYAWADA. ...APPELLANT MISSIONARY BROTHER, Represented by its Superior,. Bro. P.T. Joseph, S/o Thomus, Christian, aged about 50 years, R/o 45- ...RESPONDENT Appeal under section ___________ against orderspleased to Set aside and decree dated 09.05.2025 passed in A.S. No. 117 of 2017 by the District Judge, Vijayawada and Set aside the judgment and decree dated 13.10.2016 passed in O.S. No. 143 of 20.16 by the Principal t the quit notice 2016 is invalid and void ab initio for violation of Section 106(1) of the Transfer of Property Act, 1882 and Declare that the entire eviction proceedings are void ab initio for want of valid cause of action and Dismiss 143 of 2016) with costs throughout and Pass Petition under Section 151 CPC praying that in the circumstances stated in the affidavit filed in support of the petition, the High Court may be pleased to 2 CMR,J S.A.No.19 of 2026 condone the delay of 113 days in re-presenting the Second Appeal filed against the Judgment and Decree dated 09.05.2025 in A.S. No. 117 of 2017 on the file of the V Additional Civil Judge, (Senior Division) Vijayawada, and pass IA NO: 2 OF 2026 Petition under Section 151 CPC praying that in the circumstances stated in the affidavit filed in support of the petition, the High Court may be pleased to Stay the operation and Execution of the impugned judgment and decree dated 09.05.2025 passed in A.S. No.117 of 2017 by the learned V Additional Civil Judge, (Senior Division) Vijayawada, and pass Counsel for the Appellant: 1. YEDIDA AKHIL PAVAN Counsel for the Respondent: 1. KRISHNA RAO PARITALA 3 CMR,J S.A.No.19 of 2026 The Court made the following: ORDER: Heard learned counsel for the appellant. 2. The appellant is the defendant in O.S.No.143 of 2016 on the file of the Principal Junior Civil Judge, Vijayawada. The suit was filed against him for eviction from the lease hold premises. Admittedly, he is a tenant in respect of the subject property. The suit was filed for eviction against him on the ground that he has committed default in payment of rents. The trial Court has decreed the suit and ordered for his eviction after recording a finding of fact that he has committed default in payment of rents. The defendant has challenged the said decree before the first appellate Court i.e., the V Additional Civil Judge (Senior Division), Vijayawada. The first appellate Court also dismissed the appeal confirming the judgment of the trial Court. Thus, the two fact finding Courts have recorded the concurrent findings that the defendant has committed default in payment of rents and thereby ordered for his eviction. 3. The appellant challenged the said two decrees in this second appeal on the ground that he is doing a manufacturing business in the lease hold premises and as such, as per Section 106(1) of the Transfer of Property Act, 1882 (for short, ‘the Act’), giving six months notice for eviction before filing the suit is mandatory. But, only 30 days notice was given contrary to the mandate of Section 106(1) of the Act and as such, the suit itself is not maintainable. This is the substantial question of law that was raised by the appellant in this second appeal. But, as can be seen from the pleadings from his written statement, he did not take any specific plea that he has been doing a manufacturing business in the lease hold premises and that six months notice, as contemplated under Section 106(1) of the Act was not given and that the suit is not maintainable on that ground. As no such plea was taken by him, no issue relating to it was also framed in the trial Court. Therefore, it is for the first time, the appellant has been raising the said plea in this second appeal 4 CMR,J S.A.No.19 of 2026 without taking any plea to that effect in his pleadings. As no such plea was taken by him in the pleadings, there was no occasion for both the trial Court and the first appellate Court also to give any finding on the said plea. So, in the absence of any plea taken to that affect, the appellant cannot raise the said plea for the first time in the second appeal. 4. Further, according to the submissions made by learned counsel for the appellant, the appellant has been doing auto repair business in the lease hold premises. So, it is not a manufacturing business to hold that Section 106(1) of the Act applies to the facts of the case. Therefore, there is no substantial question of law involved in this second appeal to admit the same for hearing. No legal flaw or infirmity is found in the impugned judgment of the trial Court and the first appellate Court to interfere with the said judgment and the decrees. 5. Therefore, the Second Appeal is dismissed at admission stage. However, three months time is given from today for eviction. If the defendant fails to evict the lease hold premises and deliver the vacant possession of the said property within three months from date of this order, the plaintiff is at liberty to initiate execution proceedings for recovery of possession of the property. There shall be no order as to costs. As a sequel, Interlocutory Applications pending, if any, shall stand closed. ________________________________________ JUSTICE CHEEKATI MANAVENDRANATH ROY Date: 30.01.2026 MDP