IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.P.BALACHANDRAN TUESDAY, THE 17TH JUNE 2008 / 27TH JYAISHTA 1930 RSA.No.291 of 2008 (B) ---------------------------- AS.195/2004 of ADDL.DISTRICT COURT (ADCHOC)-II, PATHANAMTHITTA OS.122/2001 of MUSNIFF COURT,ADOOR .................... APPELLANT/APPELLANT/DEFENDANT --------------------------------------------- MOHANA KUMAR, S/O. SADANANDAN EZHAMKULAM MURI, EZHAMKULAM VILLAGE. BY ADV. SRI.K.SASIKUMAR RESPONDENT/RESPONDENT/PLAINTIFF ----------------------------------------------- DANIEL, S/O. PHILIPOSE, GREEN VILLA, EZHAMKKULAM MURI, EZHAMKULAM VILLAGE PATHANAMTHITTA DISTRICT. BY ADV. SMT.ELIZABETH MATHAI IDICULLA (COVEATOR) THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 17/06/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.P.BALACHANDRAN, J. ------------------------------------------------ R. S. A. No.291 of 2008 ------------------------------------------------ Dated this the 17th day of June, 2008 JUDGMENT This R.S.A arises out of the decree and judgment in O.S.122/01 of Munsiff's Court, Adoor confirmed in A.S.195/04 by the Additional District Judge, Pathanamthitta. 2. The tenant against whom decree for eviction has been passed by the trial court and confirmed in appeal is the appellant before me. The contention that is advanced before me by the learned counsel for the appellant is that there is no proper termination of tenancy under Section 106 of the T.P. Act. According to the learned counsel, the original tenancy began on 01/10/88, but by mutual agreement a fresh lease deed was executed on 01/11/95 and therefore, tenancy can be terminated only with the last day of the month of tenancy. All the R. S. A. No.291 of 2008 -2- same, he contends that the notice issued to the appellant marked as Ext.A1 in the suit is dt.16/01/01 and it seeks to terminate the tenancy with effect from the 28th day of February, 2001 and demands vacant possession of the leasehold premises being handed over on the succeeding day of the determination of the tenancy and the said notice is not proper notice in compliance with Section 106 of the T.P. Act. Section 106 of the T.P. Act as it stood before the amendment by Section 2 of Act 3 of 2003 with effect from 31/12/02 reads as follows:- “Duration of certain leases in absence of written contract or local usage. - In the absence of a contract or local law or usage to the contrary, a lease of immovable property for agricultural or manufacturing purposes shall be deemed to be a lease from year to year, terminable, on the part of either lessor or lessee, by six months' notice expiring with the end of a year of the tenancy; and a lease of immovable property for any other purpose shall be deemed to be a lease from month to month, terminable, on the part of either lessor or R. S. A. No.291 of 2008 -3- lessee, by fifteen days' notice expiring with the end of a month of the tenancy.” 3. The argument that is advanced before me by the learned counsel for the appellant Sri.K.Sasikumar is that on the wording of Section 106 of the T.P. Act the tenant must get 15 days' time to surrender vacant possession of the scheduled building from the date on which the tenancy stands terminated vide notice. I am at a loss to understand as to how the learned counsel cast such an interpretation on Section 106 of the T.P. Act. 4. In the instant case, the tenancy is a month to month tenancy. The tenancy being one which starts with the first day of a month the tenancy month will terminate on the last day of the calendar month. The year 2001 is not a leap year and consequently February has got only 28 days. By Ext.A1 notice, the tenancy is terminated with effect from 28th day of February, 2001 and the notice is dt.16/01/01. R. S. A. No.291 of 2008 -4- Consequently, not only that the appellant is getting 15 clear days notice but he gets more than a month's time and the vacant possession of the scheduled building is demanded as per Ext.A1 only on the succeeding day namely on 01/03/01. The notice is strictly in accordance with Section 106 of the T.P Act as it stood before the amendment. 5. By the amendment of Section 106 of the T.P. Act the rigor in the technicality has been reduced and 15 clear days' notice will be sufficient to terminate the tenancy. Thus in any event Ext.A1 notice cannot be stated to be defective in terminating the tenancy. There is, therefore, no merit in the contention advanced before me by the learned counsel for the appellant. No other contention was urged before me by the counsel for the appellant. 6. In the circumstances, there is no substantial question of law arising for R. S. A. No.291 of 2008 -5- consideration in this R.S.A and this R.S.A therefore, deserves only to be dismissed. 7. Finally it is argued before me by the learned counsel for the appellant that the appellant is conducting business in the scheduled room for a pretty long time and therefore, reasonable time may be allowed to him to vacate the premises and to hand over vacant possession of the scheduled building to the respondent. Advocate Sri.Mohan Idiculla who appears for the respondent/caveator submits that he has no objection to granting reasonable time for the appellant to vacate the premises. 8. In the result, while dismissing this R.S.A in limine refusing admission, I grant three months' time to the appellant to surrender vacant possession of the scheduled building to the respondent on condition that he shall file an affidavit before the R. S. A. No.291 of 2008 -6- execution court swearing that he shall hand over vacant possession of the scheduled building to the respondent/decree holder positively on or before 18/09/08 viz. within three months from today. K.P.BALACHANDRAN, JUDGE kns/-