Regular Second Appeal No. 1885 of 2009 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Regular Second Appeal No. 1885 of 2009. (O&M) Date of Decision: 5.5.2009 *** Amarjit Singh & Anr. .. Appellants VS. Naresh Pal Singh Bal .. Respondent. CORAM: HON'BLE MR. JUSTICE ARVIND KUMAR, Present:- Mr. Pankaj Jain, Advocate for the appellants. *** ARVIND KUMAR, J. This is defendants' regular second appeal. They have lost concurrently in a suit for possession filed by plaintiff-respondent and have been directed to hand over the vacant possession of the shop in dispute to the plaintiff. Although the learned trial court awarded rent @ Rs.5000/- per month w.e.f. 1.6.2002 to 31.12.2002 along with interest @ 8% and after that period till the date of handing over the possession directed them to pay damages to the plaintiff @ Rs.7000/- per month along with pendente lite and future interest @ 8%, but the learned first appellate Court below modified the rent to Rs. 2000/- per month while reduced the amount of damages to Rs.4500/- per month. I have heard learned counsel for the appellants and have gone through the paper book carefully. The relationship of land-lord and tenant between the parties is not in dispute. It is also not in dispute that the possession of the demised premises is still with the appellants. The contention of learned counsel for the appellants is that there was no valid notice served upon the appellants under Section 106 of the Transfer of Property Act since period of tenancy was not mentioned in the same and the Court below has wrongly interpreted the case of M/s Nopany Investments Pvt. Ltd. Vs. Santokh Singh 2008(1) RCR (Civil) 270, wherein, in a case under Rent Act, it has been concluded that no notice to quit was required for filing the eviction petition under the general law, while the present is a suit for possession. Having considered Regular Second Appeal No. 1885 of 2009 2 the submission of learned counsel for the appellants, this Court is of the considered view that there is no merit in it. A perusal of impugned judgments reveals that no specific objection qua non-issuance of valid notice was taken by the defendants in their written statement and thus, the said objection, raised at the time of arguments before the trial court was beyond their pleadings. That apart, such a plea was not raised before the learned Appellate Court below. Furthermore, the scope of issuance of notice is to make the other party aware of initiation of proceedings before the proper forum and it has been proved on record by the plaintiff by producing over-whelming evidence, that it was the defendants who evaded the service of the notice dated 15.1.2003 issued under Section 106 of Transfer of Property Act, followed by institution of the present suit on 13.2.2003. Thus, the appellants cannot derive any benefit from the case of Nopany Investment (supra). Coming to the rate of rent, damages and arrears thereof, as per own showing of the defendants, they took the first floor completely, where the cabin in question is situated, in the year 2001 for an amount of Rs.9300/- per month with the increase of rent @ 5% after every year. Taking the area of cabin in question as 1/5th of the total floor area and the fact that tenancy was created in May 2002, the rent of the cabin in question was rightly assessed at Rs.2000/- per month by the learned appellate Court below and finding that the appellants in unauthorized occupation of the cabin in question despite termination of their tenancy, the appellants have rightly been burdened with the damages for use and occupation of the demised premises @ Rs.4500/- per month till handing over its vacant possession along with interest, as referred to above. Nothing has been shown to take a contrary view. No substantial question of law, which is sine qua non for admission of appeal, is made out. The appeal is wholly without merits and the same is accordingly dismissed in limine. (ARVIND KUMAR) JUDGE May 4,2009 Jiten