A.S. No.288 of 2010
The appellant is a lessee in respect of the premises bearing No.28-2-4, Prakasaraopeta, Visakhapatnam, owned by the respondents. The respondents filed O.S.No.480 of 2008 in the Court of the II Additional Senior Civil Judge, Visakhapatnam for eviction of the appellant and for recovery of damages. The suit was resisted by the appellant by filing a written statement. Through its judgment, dated 03.03.2010, the trial Court decreed the suit. Hence, this appeal.
Sri M.Bala Subrahmanyam, learned counsel for the appellant, submits that the notice issued by the respondents under Section 106 of the Transfer of Property Act (for short ‘the Act’), marked as Ex.A1, is defective in law and that there was no basis for filing the suit. He contends that several facts, which are contrary to record, were mentioned in the notice. He further submits that the plea of the respondents that the rents were not being paid properly is not correct and on the other hand, the respondents failed to provided the promised amenities.
Sri G.Ramagopal, learned counsel for the respondents, on the other hand, submits that the contention as regards payment or non-payment of rents is hardly of any relevance in a suit filed for eviction on the strength of quit notice under Section 106 of the Act. He further submits that except stating that the notice is defective, the appellant did not point out the same.
The relationship of lessee and lessor between the appellant and the respondents is not disputed. It is also a matter of record that the respondents issued a notice under Section 106 of the Act before the suit was filed. On the basis of the pleadings before it, the trial Court framed the following issues:
1. Whether the defendant can be directed to deliver vacant possession of the plaint schedule property to the plaintiffs as prayed for?
2. Whether the plaintiff is entitled to claim damages for unauthorized use and occupation since 01.02.2008?
On behalf of the respondents, P.W.1 was examined and marked Exs.A1 to A9. On behalf of the appellant, D.W.1 was examined and no documentary evidence was adduced.
The first issue was answered and the second issue was found to be unnecessary. That exercise was relegated to a stage subsequent to the decree.
The only point that arises for consideration in this appeal is as to whether Ex.A1 suffers from any legal or factual infirmity.
There was some dispute between the parties as to the manner in which the rent was paid. However, in a suit filed for eviction by issuing a notice under the Act, such questions become relevant. It has to be seen as to whether Ex.A1 suffers from any legal or factual infirmity.
It is true that several facts in relation to the lease between the parties were mentioned in Ex.A1 and it was also alleged that the appellant did not pay the rents regularly. The fact, however, remains that through that notice, the respondents required the appellant to vacate the premises. The suit was filed after the statutory period. The contents of quit notice used to be examined meticulously by the civil Courts before Section 106 of the Act came to be amended in the recent past. According to the amended provision, even if there exists any defects in the notice, they do not constitute the basis for dismissal of the suit. Ultimately, the purport of the notice is only to inform the lessee of the intention on the part of the lessor to resume the premises. Once that purpose is served, any technical defects do not matter. Even otherwise, the appellant is not able to point out any defect in Ex.A1. Therefore, the point is answered in favour of the respondents.
The learned counsel for the appellant submits that his client is running Garments business in the premises and he may be granted reasonable time. This request made on behalf of the appellant is opposed by the learned counsel for the respondents.
Normally, in matters of this nature, the request for time for vacating the premises will not be entertained. However, having regard to the fact that the premises are being put to commercial use, it is felt that the appellant can be granted time till 30.03.2011.
The appeal is accordingly dismissed, but without costs. The appellant is granted time to vacate the premises by 31.03.2011, subject to the condition that he shall pay the rent of Rs.25,000/- per month payable on or before 10th of every month. In case the appellant commits any default in payment of rent, it shall be open to the respondents to execute the decree.