THE HONOURABLE SRI JUSTICE A.GOPAL REDDY S.A.No.1141 of 2011 Date of Order: 21-10-2011 Between: Mohammad Abdul Tayyab ..Apellant and Ch.Vijay Kumar ..Respondent The Court made the following Judgment: THE HONOURABLE SRI JUSTICE A.GOPAL REDDY S.A.No.1141 of 2011 Oral Judgment: The unsuccessful defendant in the courts below filed this Second Appeal against the judgment and decree of the II Additional District Judge, Vijayawada dated 23-08-2011 whereby the appeal— A.S.No.245 of 2010 filed against the judgment and decree of the Principal Junior Civil Judge, Vijayawada in O.S.No.1825 of 2008, dated 08-09-2010 has been dismissed confirming the eviction order. For the sake of convenience the parties are referred to as shown in the court below. There is no dispute that the defendant is the tenant of RCC building consisting of ground floor which was taken on lease from the plaintiff on a monthly rent of Rs.3,600/-; the tenancy commenced from November, 2000, which is a month to month tenancy ending 4th day of following month. The monthly rent has to be paid 10th of succeeding month. As the defendant failed to pay the rents regularly, the plaintiff/landlord issued suit notice—Ex.A1, dated 01-09-2007 terminating the tenancy by the end of September, 2007 and filed the above suit for eviction. While so, the appellant/defendant filed O.S.No.349 of 2006 on the file of Junior Civil Judge, Vijayawada for permanent injunction. The plaintiff contested the same that he is working as an employee in ACC Company in Chanda Cement Works, Ghogus Village, Chandrapur District, Maharastra State; that his son and daughter are employees; his wife is suffering from nerves weakness, B.P. and requires medical treatment; the doctors advised her to change the atmosphere to other place and to take physiotherapy, as such the plaintiff intended to provide medical treatment to his wife in Vijayawada and accordingly brought his wife to Vijayawada; thus requested the defendant/tenant to vacate the suit schedule premises but the defendant failed to vacate the same. Hence, he issued notice, terminating the tenancy. The defendant got issued a reply notice under Ex.A2, dated 31-10-2007. The defendant filed written statement contending that after issuing notice to the defendant, the plaintiff withdrew the rents deposited in the bank without any prejudice or objection, as such the plaintiff waived his right to evict the defendant and suit as such filed by the plaintiff is not maintainable. Further, he pleaded that there are no arrears of rents to be paid by the defendant; in the year 2006, the Municipal Corporation laid underground drainage system in the locality, where the suit schedule premises is situated and the defendant informed the plaintiff about the requirement to take drainage plan for the out flow of the drainage; on the advise of the plaintiff defendant paid all the necessary fee to the Corporation and met the expenses for connecting the drainage channel; he spent an amount of Rs.15,000/- and appropriated the said amount from out of rent to be payable by the defendant as such he did not deposit the rents into the court and the same was intimated to the plaintiff. Further, he took a plea that he deposited an amount of Rs.10,800/- as security deposit and same shall be refundable at the time of vacating the premises and the defendant spent an amount of Rs.60,000/- to attend the repairs of the schedule premises as per the directions of the plaintiff where the plaintiff promised to adjust the said amount towards rent at Rs.2,000/- per month; when the plaintiff demanding enhanced rents, he filed O.S.No.349 of 2006 for permanent injunction and as the counter blast the present suit has been filed. On framing necessary issues, the plaintiff himself was examined as P.W.1 and marked Exs.A1 to A9. The defendant himself was examined as D.W.1 and got marked Exs.B1 to B8. The learned trial Court after taking into consideration the plea taken by the defendant that he deposited the rents subsequent to the issuance of legal notice to the credit of plaintiff’s bank account and he has not waived his right. Once Ex.A1—legal notice is issued by the plaintiff terminating the tenancy wherein he stated that after expiry of the tenancy period continuance in the premises will be treated as trespass and the defendant is liable to pay the damages at the rate of Rs.7,200/- per month for his continuance after terminating the tenancy. Therefore, it will not amount to waiver of right and ordered eviction. Further, deposit of rents under Ex.B8 are exclusively incurred by the defendant without any intimation and permission from the plaintiff, it is only to cover up his liability to pay the rents that already fell due, as such the plaintiff is not liable to account for to the defendant and accordingly decreed the suit. The lower appellate court has confirmed the same. The only submission made by the learned counsel for the appellant is that the appellant/defendant took a plea that on deposit of rents to the credit of the plaintiff’s account the same has been withdrawn by him; suit notice is dated 01-09-2007 and the suit as such is filed on 15-07-2008 which itself shows that the plaintiff waived his right under notice by accepting the rents. Therefore, he is not entitled to possession. The evidence of the parties also discloses that plaintiff opened bank account at Vijayawada to facilitate the defendant to deposit the rents. On issuing notice by the plaintiff terminating tenancy, the appellant/defendant has not informed about his deposit of rents to the credit of plaintiff’s account. When once the plaintiff’s intention is clear on expiry of lease period of termination defendant’s continuation will be as trespasser and he is liable to pay damages at Rs.7,200/- per month for his continuation after termination of tenancy, mere deposit of rents at the old rate will not amount to waiver of right. In view of the same, the concurrent findings recorded by the courts below will not give rise to any question of law, much less substantial question of law, to admit the second appeal and it is accordingly dismissed. However, the appellant/defendant is granted time till the end of March, 2012 for evicting and handing over the vacant possession of the suit schedule premises subject to his filing an undertaking before the lower court that he will vacate and handover the possession of the suit schedule premises by 31-03-2012 within two weeks from the date of receipt of a copy of this order and to deposit the entire arrears of rent, if any, and continues to deposit the monthly rent on or before 10th of succeeding month and also to deposit the damages, which will be ascertained on the application filed by the plaintiff, within two weeks from the date of such ascertainment. There shall be no order as to costs. _________________ A.GOPAL REDDY, J. 21-10-2011 Murthy