IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD MONDAY, THE FIFTH DAY OF SEPTEMBER TWO THOUSAND AND ELEVEN PRESENT THE HON'BLE MR JUSTICE G.BHAVANI PRASAD SECOND APPEAL No.1196 of 2010 Between: Goutam Kumar ..... APPELLANT AND V.Lingam .....RESPONDENT The Court made the following: THE HON'BLE SRI JUSTICE G.BHAVANI PRASAD SECOND APPEAL No.1196 of 2010 JUDGMENT: The second appeal is directed against the judgment and decree in A.S.105/2007 on the file of the XX Additional Chief Judge, City Civil Court, Secunderabad, dated 13.09.2010. The factual background for the second appeal is that the respondent herein filed O.S.1492/2004 on the file of the First Junior Civil Judge’s Court, City Civil Court, Secunderabad for delivery of vacant possession of the suit schedule premises in Door No.4-4- 117/C, Mahankali street, Secunderabad, arrears of rent of Rs.34,292- 50 ps, municipal taxes and maintenance charges, mesne profits at Rs.5,000/- per month and costs from the appellant herein. He claimed that he is the absolute owner of the premises, in which the defendant is a tenant for a monthly rent of Rs.1,815/-, in addition to liability to pay Rs.300/- towards municipal tax and Rs.250/- towards maintenance. The defendant was stated to have fallen in arrears from 01.07.2003, on which the plaintiff terminated the tenancy by issuing a notice dated 27.08.2004. Hence the suit. The appellant/defendant resisted the suit, contending that he issued a cheque on 06.09.2004 for Rs.23,595/- which was not presented by the plaintiff for encashment. He also claimed to have deposited a sum of Rs.1,11,000/- with the plaintiff through cheque as refundable advance at the commencement of the tenancy. The rent was agreed to be enhanced by 10% for every three years and hence, the termination of tenancy by the notice dated 23.06.2004 was not valid. The defendant also claimed to have issued another cheque for Rs.7,260/- towards the rent upto November 2003 and another cheque towards the rent for December, 2003. The defendant also claimed to have issued a notice to the plaintiff on 17.02.2004 while sending another cheque for the rent of January, 2004 to present the cheques for encashment and the plaintiff gave a false reply and hence the suit be dismissed. The trial Court framed issues on the entitlement of the plaintiff for vacant and peaceful possession of the suit schedule property and arrears of rent. It examined during trial PW 1 and DW 1 and marked Exs.A1, A2 and B1 to B14(A). The trial Court rendered its judgment on 22.03.2007, firstly opining that the tenancy between the plaintiff and the defendant, the rate of rent and liability to pay municipal taxes and maintenance were accepted by both parties. The trial Court further observed that the defendant was shown as tenant in individual capacity, and in the absence of any written agreement of lease, Sec.106 of the Transfer of Property Act applies to the tenancy and Ex.A1 notice cannot be considered as invalid for any reason. The trial Court also found that from June 2003 the plaintiff patently did not receive any rents, and therefore, the amount claimed towards arrears of rent has to be paid to the plaintiff. The future mesne profits from September 2004 after the termination of the tenancy were directed to be determined on separate application, and suit was decreed with costs for possession and arrears of rent, while granting three months time to the defendant to vacate the premises. In appeal against the same, the first Appellate Court rendered the impugned judgment dated 13.09.2010, again going into the pleadings, contentions and the evidence as well as the grounds of challenge by the defendant to the judgment and decree of the trial Court. Considering the points about the entitlement of the plaintiff for recovery of possession of the suit property, the first Appellate Court felt that Sec.106 of the Transfer of Property Act applies to the facts of the case in the absence of any written agreement between the parties and Ex.A1 notice was issued more than two months prior to the suit validly terminating the tenancy. The first Appellate Court further opined that in respect of any deposit, it is for the defendant to take steps for recovery of the same, and the defendant was also observed to have not proved any attempts to pay the rents or to give any reply to Ex.A1 notice. Therefore, the first Appellate Court also found no ground to interfere with the judgment and decree of the trial Court. The defendant/tenant filed the present second appeal, contending that the Courts below did not consider the correspondence between the parties, which disclosed that the plaintiff played tricks to show the defendant as a wilful defaulter. The notice issued by the tenant in Ex.B1 on 17.02.2004 and the issuance of cheques by the tenant from time to time were not considered and the acceptance of the cheque dated 18.07.2003 by the plaintiff amounted to waiver of the notice of termination of tenancy. The agreement between the parties about periodical enhancement of rent was not appreciated and consequently, the existence of refundable deposit of Rs.1,11,000/- with the plaintiff was also not considered. The notice does not come in terms of Sec.106 of the Transfer of Property Act and hence, the defendant desired the impugned judgment and decree of the first Appellate Court be reversed. A learned Judge of this Court has admitted the second appeal on the following substantial questions of law: a) Both the Courts below have committed error in coming to conclusion that the notice issued under Sec.106 is not defective; b) Both the Courts below have committed error in not properly appreciating the issue that necessary ingredients of Sec.106 of T.P.Act are not complied with. c) The encashment of cheque bearing No.313420 dated 18.07.2003 does not amount to creation of fresh tenancy between the appellant and the respondent and the continuous receipt of rent by the respondent without any demur does not amount to waiver of his right, if any, for termination of tenancy of the appellant; and d) Both the Courts below have not committed error in not appreciating properly the correspondence between the parties, which was exchanged prior to issuance of termination notice, which shows the conduct of the respondent/landlord. Sri T.S.Praveen Kumar, learned counsel for the appellant, and Smt.N.Haritha, learned counsel, representing Sri M.Pratap Singh, learned counsel for the respondent are heard. The points for consideration in this appeal are the substantial questions of law, framed by the learned Judge while admitting the second appeal. The factual matrix is not seriously in dispute and the respondent herein is admittedly the absolute owner of the suit schedule premises. The agreed rate of rent between the parties originally and the liability of the tenant to pay the electricity consumption charges and maintenance are also not in dispute, and that the plaintiff did not receive any rents from 01.07.2003 from the defendant is also not in dispute. The only oral evidence before the Courts below is of the plaintiff and defendant who were examined as PW 1 and DW 1 and their interested evidence has no corroboration from any independent evidence. While issuance and receipt of Ex.A1 notice to quit is not in dispute, there was earlier correspondence between the parties according to defendant as disclosed by Exs.B1 to B10, and a reply to Ex.A1/Ex.B11 in Ex.B12 dated 06.09.2004. Exs.B14 and B14A were relied on to probabilise the alleged attempts by the defendant to pay the rents. Irrespective of the truth or otherwise of the alleged attempts by the defendant to pay the rents and refusal by the plaintiff to receive them, the termination of tenancy in question is based on Ex.A1 notice to quit issued under Sec.106 of the Transfer of Property Act. There was admittedly no written lease and the oral tenancy is not claimed to be not a tenancy from month to month. As noted by the trial Court, the plaintiff did not accept any rents and there was no evidence to probabilise that the plaintiff had waived the notice to quit as contended by the defendant. The first Appellate Court concurred with the trial Court about there being no positive proof of the alleged attempts by the defendant to pay the rents from July 2003, apart from there being no reply to Ex.A1 quit notice within stipulated time. The alleged original agreement on 10-rupee stamp paper did not see the light of the day and the circumstances and findings of fact arrived at by the trial Court and first Appellate Court cannot be considered to be not based on broad human probabilities arising out of the evidence on record. While the cheques allegedly issued by the defendant were admittedly not encashed by the plaintiff, the notice Ex.A1 cannot be considered legally invalid or in violation of Sec.106 of the Transfer of Property Act, more so, in the light of Sub-Sec.3 thereof. Hence, it cannot be considered that there is any error in the conclusion about the absence of defect in the notice to quit and the ingredients of Sec.106 of the Transfer of Property Act were seen to be present. Any creation of tenancy between the parties since 18.07.2003 has not been proved and any correspondence between the parties, which may be showing in the opinion of the defendant the absence of bona fides on the part of the plaintiff, cannot nullify the legal consequences of a valid notice to quit. Therefore, the questions of law framed have to be answered against the appellant, apart from the fact that they do not, in fact, involve any substantial questions of law, and the second appeal deserves to be dismissed. The learned counsel for the appellant submitted that if the Court were to disagree with his submissions, the appellant may be granted one years time to vacate the premises, as running of business in the schedule premises is only source of his livelihood. It is true that the defendant is tenant of the premises since long and he is running a business therein. Though the notice to quit was issued about 7 years back, which the defendant did not comply, still while balancing the right of the plaintiff to resume possession and the necessity for the defendant to have a reasonable time to secure a suitable or comfortable accommodation for continuing his business, grant of six months time will sub-serve the needs of justice. Therefore, while dismissing the second appeal without costs, the defendant/appellant is granted further time for six months from today to vacate and hand over possession of the decree schedule property to the plaintiff. _____________________ G.BHAVANI PRASAD,J Dated: 05.09.2011 Dsr