HIGH COURT OF JUDICATURE OF ANDHRA PRADESH THE HONOURABLE SRI JUSTICE V.ESWARAIAH SECOND APPEAL NO. 1316 OF 2010 Friday, the Twenty First day of January, Two Thousand and Eleven Between Chakka Srinivasa Rao Appellant AND Vinnakota Pratap Respondent JUDGMENT: The appellant is the defendant in the suit filed by the respondent herein. The respondent herein filed the suit OS No. 1509 of 2007 on the file of the III Addl. Junior Civil Judge, Visakhapatnam for eviction of the defendant from the suit schedule property and to put him in vacant possession thereof and for recovery of arrears of rent with interest. The III Additional Junior Civil Judge, Visakhapatnam, by judgment dated 2.3.2010 decreed the suit OS No. 1509 of 2007 holding that the plaintiff is entitled for eviction of the defendant, as he has given clear 15 days notice under Sec. 106 of Transfer of Property Act (for brevity the Act). The trial Judge decreed the suit as prayed for, for eviction of the defendant and also found that the defendant is due and liable to pay an amount of Rs.4,200/- towards rent for the month of March, 2007 and that was the prayer in the suit. With regard to the payment of damages for use and occupation for the subsequent months, had already been granted. As against the said judgment and decree, the defendant filed an appeal before the III Addl. District Judge, Visakhapatnam in A.S. No.100 of 2010 and the learned appellate Judge by judgment and decree dated 17.9.2010, dismissed the appeal preferred by the defendant holding that the plaintiff has deposited Rs.20,000/- advance and if he refunds the said sum of Rs.20,000/-, he is entitled to recover Rs.4,200/- along with interest, otherwise, he is entitled to adjust the said arrears of one month rent along with interest. Aggrieved by the same, this second appeal is filed. Learned counsel for the appellant submits that the suit filed by the plaintiff is not a simple suit for eviction by issuing notice under Sec.106 of the Act, but it is a suit for recovery of rent as well as arrears of rent. He also submits that a plea was taken by the defendant stating that as an amount of Rs.1,50,000/- deposited as advance, is with the landlord, Section 106 and 111 of the Transfer of Property Act, determining the lease by giving fifteen days notice will not apply, but Section 114 only applies. Under Sec. 114 of the Act, if the lease is determined by forfeiture for non- payment of rent and if the rent is paid within fifteen days, instead of making the decree of ejectment, the tenant is entitled to hold the property as if the forfeiture has not been occurred. I am unable to accept the said contention. The lease is not determined on account of non-payment of rent. Payment of arrears of rent is incidental. The suit is filed after giving fifteen days clear notice by determining the lease. Admittedly, there was no written agreement and, therefore, the lease was oral only. If that be so, clear fifteen days notice is legal and valid, terminating the lease. Both the courts have rightly held that issuance of fifteen days notice is in accordance with law. Therefore, the landlord – plaintiff is entitled for eviction of the defendant. However, the lower appellate court dealt with the contentions of the appellant and relying on a judgment of this court in Thatikonda Butchi Nookayya Setty & others Vs. Golla Laxmana Rao (2008 (1) ALT 111) rejected the said contention and dismissed the appeal. In fact, the suit filed by the appellant/defendant in OS No.3090 of 2006 seeking injunction for his continuation as tenant of the suit schedule property was dismissed. No appeal has been filed. Admittedly, the appellant being a tenant, the suit for eviction under Sec. 106 of the Transfer of Property Act was rightly decreed, which was upheld by the lower appellate court. I do not see any question of law muchless substantial question of law that arises for consideration. Consequently, the second appeal is dismissed at the stage of admission. No order as to costs. Learned counsel for the appellant submits that having regard to the facts and circumstances, as the appellant is brother-in-law of the respondent and is running a medical shop, therefore, a reasonable time may be granted to vacate and handover vacant possession of the same in favour of the respondent/plaintiff. The appellant also undertakes to pay the subsequent rent amount. If that be so, the appellant is permitted to vacate and handover vacant and peaceful possession of the suit schedule property on or before 04.06.2011, subject to the condition of the appellant depositing entire arrears of rent payable from April, 2007 till the end of January, 2011, after giving credit to the amounts, if any, deposited, by the end of February, 2011 and also file an undertaking that he will continue to deposit the rent payable for the months of February, March, April and May, 2011 by 5th of every succeeding month and also vacate and handover the possession of the suit schedule premises in favour of the respondent/plaintiff on or before 04.06.2011. Failure to pay the entire arrears of rent and filing such an undertaking before the trial court by the end of February, 2011, will entitle the respondent/plaintiff to execute the decree. ___________________ Justice V.Eswaraiah January 21, 2011 MAS