IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE HARUN-UL-RASHID THURSDAY, THE 2ND JULY 2009 / 11TH ASHADHA 1931 RSA.No. 1162 of 2008() ---------------------- OS.20/1992 of MUSNIFF COURT,ADOOR A.S. 35/2004 of DISTRICT JUDGE PATHANAMTHITTA .................... APPELLANTS/RESPONDENTS/DEFENDNTS ------------------------------------------------------ 1. K.MADHAVY, MADHU MANDIRAM (KINATTINKARAKIZHAKKETHIL), THUVAYOOR SOUTH, KADAMPANADU VILLAGE, ADOOR TALUK. 2. K.SANTHA, MADHU MANDIRAM (KINATTINKARAKIZHAKKETHIL), THUVAYOOR SOUTH, KADAMPANADU VILLAGE, ADOOR TALUK. 3. VISHWAMBHARAN, MADHU MANDIRAM (KINATTINKARAKIZHAKKETHIL), THUVAYOOR SOUTH, KADAMPANADU VILLAGE, ADOOR TALUK. 4. SASIKUMAR, MADHU MANDIRAM, (KINATTINKARAKIZHAKKETHIL), THUVAYOOR SOUTH , KADAMPANADU VILLAGE, ADOOR TALUK. 5. MADHUSOODHANAN, MADHU MANDIRAM, (KINATTINKARAKIZHAKKETHIL), THUVAYOOR SOUTH , KADAMPANADU VILLAGE, ADOOR TALUK. BY ADV. SRI. K.SHAJ SRI.SAJJU.S RESPONDENTS: APPELLANTS/PLAINTIFFS:- --------------------------------------------------------- 1. AJITHA JNANDAS, GOVT. SERVANT, GEETHA BHAVAN, PULIYOOR VANCHI VADAKKU, THODIYOOR VILLAGE,KARUNAGAPPALLY TALUK FROM THAZHATTHUPUTHAN VEEDU, THUVAYOOR SOUTH, KADAMPANADU VILLAGE ADOOR TALUK. 2. S.AYYAPPAN CHETTIYAR, GOVT. SERVANT, THAZHATHUPUTHEN VEEDU, THUVAYOOR SOUTH, KADAMPANADU VILLAGE, ADOOR TALUK. ADV. SRI.N.N.SASI FOR R1-2 THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 02/07/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ORDER IN I.A.NO. 2557 OF 2008 IN R.S.A. NO. 1162 OF 2008 DISMISSED SD/- HARUN-UL-RASHID,JUDGE 2.7.2009 HARUN-UL-RASHID, J. ---------------------------------------- R.S.A.No. 1162 of 2008 ---------------------------------------- Dated this the 2nd day of July, 2009 JUDGMENT The Second Appeal is directed against the judgment and decree in A.S.No. 35/2004 on the file of the District Court, Pathanamthitta which arises from the judgment and decree in O.S. No. 20/1992 on the file of the Munsiff's Court, Adoor. The suit was filed for eviction with arrears of rent and for permanent prohibitory injunction. The suit was dismissed finding that there is no issuance of proper notice under Section 106 of the Transfer of Property Act terminating the tenancy. The said dismissal was reversed by the lower appellate court. Hence the Second appeal. The defendants in the suit are the appellants herein. The parties hereinafter referred to plaintiffs and defendants as arrayed in the Suit. 2. It is not disputed that the 1st defendant had taken the plaint B schedule building on 29.3.1981 for a monthly rent of Rs.30/- for a period of one year. Defendants 2 to 5 are 1st defendant's family members. According to the plaintiffs the 1st defendant/ tenant has defaulted the payment of rent from 12.11.1988 onwards without any reason and that even after the expiry of the period of one year the 1st defendant continued to reside in the building. Hence the plaintiffs have issued a notice on15.11.1991 requesting the 1st defendant to vacate the building. But there is no reply from the defendants. Hence the suit. 3. The defendants contended that they have paid rent upto1987 R.S.A. No. 1162 of 2008 -2- but thereafter there was no demand from the side of the plaintiffs to pay the monthly rent of the building. It is also contended by them that Ext.A8 notice is improper and invalid for the reason that there is no valid termination of tenancy. 4. It is pertinent to note that the trial court dismissed the suit for the sole reason that Ext.A8 notice is improper and invalid and therefore there is no termination of tenancy as required under Section 106 of the T.P Act. 5. In the appeal preferred by the plaintiffs, the lower appellate court after examining the questions and appreciating the evidence on record, held that the creation of the tenancy is on 29.3.1981 ,that the monthly rent was Rs. 30/- and held that the 1st defendant is a tenant and the other defendants are residing along with her in the said building as members of her family, that the 1st plaintiff being the owner of the building and landlord she is entitled to evict the defendants from the plaint B schedule building. The lower appellate court also found that 1st defendant is liable to pay the rent and the plaintiffs are entitled to recover the arrears of rent and future rent from the 1st defendant. 6. The question of validity of Ext.A8 notice was also considered in detail by the lower appellate court. The lower appellate court rightly held that by virtue of transitional provisions in Section 3 of Act 3/2003, the amended provisions of Section 106 of the Principal Act shall apply to all notices in pursuance of which any suit or proceedings is pending at the commencement of the Act 3/2003 and all notices which have been issued R.S.A. No. 1162 of 2008 -3- before the commencement of the same, but where no suit or proceedings has been filed before such commencement. The lower appellate court also found that in this case Ext.A8 notice was issued before the commencement of the said Act and as per the said notice 15 days were given to the 1st defendant to surrender the vacant possession of the building and in that respect the said notice is a valid one. 7. The learned counsel for the defendants/appellants seriously attacked the validity of Ext.A8 notice on the ground that tenancy is not terminated by issuance of the same. According to the learned counsel, the plaintiffs did not use the words “termination of tenancy” instead, they used the words “to vacate the building” and therefore the suit brought without terminating the tenancy as provided under Section 106 of the T.P.Act is not sustainable According to him the demand for vacation of the premises is not equal to the termination of the tenancy 8. The learned District judge after considering the various contentions on the above point, held that it is not necessary that the said notice should contain the word 'termination of tenancy' and that the direction to the effect that the defendants must vacate the plaint B Schedule building within 15 days from the date of receipt of Ext.A8 notice, imply that said notice is issued for termination of tenancy. Ext.8 notice sufficiently indicates that the plaintiffs are the owners of plaint B schedule building and the defendants, as tenants, are liable to vacate the building. It has to be inferred that the 1st defendant has misread the direction in the notice and she understood its contents, that it was a notice for termination R.S.A. No. 1162 of 2008 -4- of tenancy. In the above said circumstances, I am also of the view that the defendants are liable to surrender vacant possession of the building. 9. The learned counsel for the appellants brought this Courts' attention to the principles laid down in the decision reported in Pannalal Sagarmal Vs. Central Bank of India ( 2008 Calcutta 285) and contended that a notice without indicating in writing that party has determined lease and that act of termination of lease on part of lessor which should be apparent in notice under Section 106 of the T.P.Act is missing . On the basis of the said dictum the defendants contended that there is no valid termination of tenancy. 10. I have also considered the principles laid down in the decision reported in in Mohammed Indris Mian Vs. Doman Sah (AIR 1978 Patna 82) The said court held that the notice in question (in this case Ext.A8 notice) cannot be held to be invalid merely because the term “ the tenancy being terminated” has not been used in it. The defendants have no case that the plaintiffs asked them to vacate the plaint schedule building within 15 days from the date of receipt of Ext.A8 notice. Therefore the lower appellate court is justified in holding that the said notice is valid and properly issued and that the plaintiffs are entitled to recover the plaint B schedule building with arrears from rent, future rent at the rate of Rs.30/ per month from the date of suit till vacation of the building and permanent prohibitory injunction restraining the defendants from trespassing upon the plaint A schedule property. The decree and judgment passed by the lower appellate court is valid in all respects. I do not find any reason to interfere with the judgment and decree passed by R.S.A. No. 1162 of 2008 -5- the lower appellate court. No question of law much less any substantial question of law arises for consideration in this appeal. There is no scope for invoking Section 100 of the C.P.C. This appeal fails and accordingly dismissed in limine. 11. The learned counsel for the defendants/appellants requested this Court to grant 6 months time to vacate the premises. I am of the view that the request is reasonable. Hence six months time is granted to the defendants/appellants for vacating the plaint B schedule building on condition that the defendants file an undertaking in the form of an affidavit agreeing to vacate the building within six months from today and on further condition that the defendants shall deposit of the arrears of rent of Rs. 1,269/- with interest within one month and shall continues to pay the rent amount @ Rs.30/- every month till the vacation of the plaint B schedule building. The affidavit shall be filed before the execution court within one month from today. If no affidavit as above is filed within one month and if no deposit is made as on the date of filing of the affidavit the plaintiffs are free to proceed with the execution proceedings (HARUN-UL-RASHID, JUDGE) es. HARUN-UL-RASHID, J. --------------------------- R.S.A.No. 1162 of 2008 ---------------------------- JUDGMENT 2nd July, 2009