IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD TUESDAY, THE THIRTEENTH DAY OF SEPTEMBER TWO THOUSAND AND ELEVEN HON’BLE SRI JUSTICE G. BHAVANI PRASAD Second Appeal No.1396 of 2010 Between: Mohammed Afzal .. Appellant AND Hiravanti .. Respondents JUDGMENT: The Second Appeal is directed against the judgment and decree in A.S.No.248 of 2009 on the file of the Court of III Additional Chief Judge, City Civil Court, Hyderabad, dated 14-07- 2010, by which the judgment and decree in O.S.No.6338 of 2006 on the file of the Court of III Junior Civil Judge, City Civil Court, Hyderabad, dated 22-06-2009 were confirmed. The parties are referred to herein as they are arrayed before the trial Court. The plaintiff filed the suit against the defendant for recovery of vacant possession of the suit schedule shop, arrears of rent, past and future mesne profits and costs. She claimed to be the owner of the shop leased out to the defendant under a registered lease deed dated 18-09-2000 for a monthly rent of Rs.3,500/- excluding electricity charges etc. The rent was agreed to be paid by 5th of each month and to be enhanced by 10% after three years. The defendant paid the rent up to May, 2005 and defaulted since June, 2005. A notice to quit was issued on 3-6-2006, which was refused and hence the suit. The defendant resisted the suit admitting the ownership of the suit premises with the plaintiff and his tenancy therein. The defendant contended that there was an agreement for enhancement of rent by 10% after three years and the plaintiff used to collect the rents in lump sum once in six months or one year and the plaintiff refused to receive the rents after May, 2006. The defendant approached the plaintiff after the suit also and sent a cheque dated 14-07-2007 for the rent for 12 months at Rs.3,850/- per month. The suit schedule shop was agreed to be let out to the defendant by the plaintiff after a suit for eviction against Syed Shakeel Ahmed, the earlier tenant and the lease deed was only formal without any condition in fact for vacating the shop on expiry of the period of lease. The defendant is ready to enhance the said rent as per the enhancement clause in the lease deed, and hence, he sought for dismissal of the suit. The trial Court framed issues about the entitlement of the plaintiff to seek recovery of possession, arrears of rent, mesne profits past and future etc. During trial, the trial Court had examined PW.1 and DWs.1 and 2 and marked Exs.A.1 to A.6 and B.1 to B.10. The trial Court rendered its judgment firstly concluding that the defendant paid the arrears of rent as claimed in the suit during the pendency of the suit. The trial Court also concluded that the future mesne profits have to be ascertained by a separate application under Order 20 Rule 12 of the Code of Civil Procedure. The past mesne profits from 28-06-2006 up to the suit were assessed by the trial Court at Rs.7,000/- per month. Regarding the service of Ex.A.3-notice through Ex.A.4-returned postal envelope, the trial Court took the aid of Section 27 of the General Clauses Act and Section 114 of the Evidence Act to conclude that the defendant must have refused the notice when tendered by the postman. It also relied on M.A. Ghani v. P. Rami Reddy (2003 (2) ALD 801 (AP) for that purpose. The trial Court refused to accept the defence about the plaintiff herself receiving the rent in lump sum once in a year or six months and also noted that the rents received under the rent receipts filed by the defendant were received only under protest. The trial Court also found that after expiry of the period of notice to quit, the defendant’s possession was wrongful and there being no waiver of the notice to quit by the conduct of the plaintiff, the defendant is liable to pay mesne profits since after the expiry of the period of notice to quit. Accordingly, the trial Court decreed the suit for possession and mesne profits up to the suit at Rs.7,000/- per month and directed the future mesne profits to be determined on a separate application under Order 20 Rule 12 of the Code of Civil Procedure. The trial Court also awarded the costs of the suit to the plaintiff while granting one month time to the defendant to vacate the premises. In appeal in A.S.No.248 of 2009, the First Appellate Court rendered the impugned judgment again referring to the rival contentions and evidence and opining that when DW.1 admitted the execution of the lease deed and the relationship between the parties and when he fell in arrears of rent apart from being served with notice to quit, the plaintiff is entitled to recover vacant possession of the suit premises. The First Appellate Court also felt that the directions of the trial Court about past and future mesne profits are also lawful and in view of the validity of the notice to quit, the First Appellate Court upheld the judgment and decree of the trial Court. In the Second Appeal, the defendant again contended that the failure of the plaintiff herself to enter into the witness box should have been considered as fatal and the Power of Attorney Holder would not have proved the suit claim as PW.1. The defendant also contended that he was never a wilful defaulter and the lease deed dated 18-09-2000 was not given any effect by the parties. The receipt of rents by the landlord even after the suit was ignored and the presumption about due service of notice to quit was against Section 114 of the Indian Evidence Act, more so, due to non-examination of the postman. The defendant, therefore, contended that the judgments of the Courts below were perverse and erroneous. The Second Appeal was admitted on 10-12-2010 on the following substantial questions of law. 1) Whether presumption can be made regarding service of notice under Section 114 of the Evidence Act without examining the witnesses? 2) Whether the suit can be decreed when the plaintiff personally failed to appear to give the evidence? 3) Whether there was a waiver of notice under Section 111 read with Section 106 of the Transfer of Property Act, when the landlord received the rents before filing the suit? Sri Abdul Muqeeth Qureshi, learned counsel for the appellant and Sri M.R.S. Srinivas, learned counsel for the respondent are heard. The points that arise for adjudication of the second appeal are the substantial questions of law on which the second appeal has been admitted and as they are closely intermixed, they are being answered together. The admitted facts are that the plaintiff is the absolute owner of the suit schedule shop and that there was a registered lease deed executed between the parties on 18-09-2000. The due execution of the lease deed and its contents are not in dispute and the lease deed stated that the lease is initially for a period of 36 months from 15-09-2000 to 14-09-2003. The plaintiff and the defendant agreed under Clause 18 of the lease deed that on continuation thereafter at the option of the lessor, the lessee shall have to pay rent by 10% more and shall execute a fresh lease deed. The rent receipt book containing Exs.A.2 (a) to A.2 (g) and B.1 to B.8 disclose that the plaintiff had specifically endorsed the receipt of rent to be under protest during the relevant period. The defendant as DW.1 did not dispute the above aspects though he denied refusing to receive the notice to quit and claimed the plaintiff to have waived his right to evict the defendant by receiving the rent even after the suit. However, in his cross-examination, he admitted that he never paid property tax for the suit property as agreed under Ex.A.1. He also admitted that the rent receipts mentioned that the plaintiff received rents under protest. The defendant further admitted that the option of renewal of the lease was with the landlord. DW.2, who was examined to corroborate the claims of DW.1, did not offer such corroboration with reference to any documents and he admitted that he was not a witness to Ex.A.1-lease deed. He also admitted that possession by evicting Ahmed, the earlier tenant, was delivered to the plaintiff through the Court and his claim that there was no condition to vacate the mulgi after expiry of the period mentioned in Ex.A.1-lease deed is of no avail under the circumstances. It is true that the plaintiff herself did not enter into the witness box and her General Power of Attorney Holder was examined as PW.1 to speak about the claims of the plaintiff. It should also be noted that even in the written statement, the defendant specifically admitted the execution of the lease deed and though he claimed that there was no condition to vacate the mulgi on the expiry of the lease period, he was depending on the enhancement of 10% of the rent on expiry of the lease period to comply with which he was ready and willing. On such material on record, even if the evidence of PW.1, the General Power of Attorney Holder of the plaintiff were to be excluded from consideration in the light of the decision reported in Ram Prasad v. Hari Narain and others[1] reaffirmed by the Apex Court in Janki Vashdeo Bhojwani and another v. Indus Bank Ltd., and other[2] and the non-examination of the plaintiff herself were to be taken adverse note of, the same does not detract from the probabilities arising out of the admitted facts about the admitted lease deed between the parties and the expiry of the period of lease stipulated by the said lease deed. The absence of examination of the plaintiff also does not detract from the probablised receipt of rent by the plaintiff after the notice to quit only under protest and not by way of waiver of the right to evict. Even if the refusal of the notice to quit as sought to be probablised by Ex.A.4-returned postal cover was also considered to be not proved because of the principle laid down in Shamim Ahmad Alvi v. Azizul Rahman Khan[3], relied on by Sri A.M. Qureshi, learned counsel for the appellant, the fact remains that the period of lease itself expired as per Ex.A.1-Lease deed and there was no renewal of lease as per the terms of the lease deed as per which the option to renew the lease is with the Lessor and not the Lessee. It is not even the case of the defendant that the plaintiff has at any point of time agreed to extend the period of lease under the terms of Ex.A.1 accepting his offer to enhance the rent by 10%. If so, a lease of immovable property determines by efflux of time limited thereby under Section 111 (a) of the Transfer of Property Act, and therefore, the issuance of a notice to quit under Section 106 of the Transfer of Property Act may not be a legal requirement for the plaintiff to seek eviction of the defendant from the premises owned by her. Therefore, the questions on which the second appeal has been admitted about the presumption drawn by the trial Court about the due service of notice to quit, the failure of the plaintiff herself to give evidence before the trial Court and the waiver of notice to quit will not have any adverse impact on the ultimate right of the plaintiff to have the possession of the suit premises from the defendant and also to have the past and future mesne profits from the defendant since the expiry of the period specified by the notice to quit. While it should be noted that the award of past and future mesne profits has not been made the subject of specific challenge in the grounds of appeal, the concentration being on the liability or otherwise of the defendant for eviction, the second appeal cannot, therefore, be considered to be raising any substantial questions of law calling for interference with the concurrent finding of the Courts below. Sri A.M. Qureshi, learned counsel for the appellant, submitted that in the event of the Court not agreeing with the submissions in the grounds of appeal, the defendant at least needs to be granted a reasonable time to vacate the premises as he was eking out his livelihood by running a transport business in the premises. The defendant running a transport business in the premises for earning his livelihood is an admitted fact and the Court probably can take even judicial notice of the difficulty to secure a suitable alternative accommodation for continuance of such business by the defendant to consider the grant of a reasonable time for vacating the premises. However, the grant of such time should also be examined in the light of the defendant paying the past mesne profits awarded by the decrees of the Courts below and also the future mesne profits at least at the rate of past mesne profits assessed by the trial Court till the delivery of possession of the premises to the plaintiff. Sri A.M. Qureshi, learned counsel for the appellant, submitted that the past mesne profits awarded by the trial court were already paid and even concerning the period after the disposal of the suit by the trial Court up to date, the defendant paid substantial amounts at the rate of Rs.7,000/- per month and whatever balance is left the defendant will be ready to pay such balance at Rs.7,000/- per month. As such, the defendant can be granted a reasonable time of six (6) months to vacate subject to his paying the past and future mesne profits payable up to date of his payment within two (2) months from today subject to, of course, determination of the future mesne profits from 5-12-2006 till the delivery of possession on a separate application under Order 20 Rule 12 of the Code of Civil Procedure as directed by the trial Court. If the defendant still has some difficulty in securing alternative accommodation within the period of six months granted by this Court herein as contended by the learned counsel for the appellant, it is always open to the defendant to approach this Court with an appropriate application for any extension of time, which can be considered on its own merits. Accordingly, the Second Appeal is dismissed without costs. But the appellant-defendant is granted time for six (6) months from today to vacate and deliver possession of the suit schedule shop to the plaintiff-respondent subject to the defendant- appellant paying the past mesne profits from 28-06-2006 to 04-12- 2006 and future mesne profits from 5-12-2006 till the date of payment at Rs.7,000/- per month within two (2) months from today in respect of which due credit shall be given for the payments already made by the defendant in this regard. In default of such payment, the plaintiff is at liberty to execute the decree for delivery of possession without waiting for the expiry of the period of six (6) months and the defendant-appellant is at liberty to apply to this Court for extension of time so granted, if he were unable to secure a suitable alternative accommodation for continuance of his business in spite of his reasonable efforts, which request will be considered by this Court on its own merits in accordance with law. _____________________ G. BHAVANI PRASAD, J Date: 13-09-2011 Ksn [1] AIR 1998 Rajasthan 185 (1) [2] 2005 (2) SCC 217 [3] AIR 1974 Allahabad 354