IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) THURSDAY, THE EIGHTEENTH DAY OF MARCH TWO THOUSAND AND TEN PRESENT THE HON'BLE SRI JUSTICE VILAS V. AFZULPURKAR SECOND APPEAL No.457 of 2009 BETWEEN M/s. Eskay’s Time Shop and another. …APPELLANTS AND Mahesh Kumar and three others. …RESPONDENTS Counsel for the appellants: Mr. G.S. Prakash Rao Counsel for the Respondents: Mr. Sharad Sanghi The Court made the following: - JUDGMENT: This appeal is by the appellants/tenants against the concurrent decree of eviction passed against them by the Courts below i.e. O.S.No.137 of 1999 dated 25.09.2006 on the file of IX Additional Senior Civil Judge (Fast Track Court), City Civil Court, Hyderabad, as confirmed in A.S.No.579 of 2006 dated 13.03.2009 on the XIII Additional Chief Judge (Fast Track Court), City Civil Court, Hyderabad. 2. For the sake of convenience, the appellants are referred to as tenants and the respondents are referred to as landlords. 3. The tenants entered into a lease agreement dated 01.02.1981 with the landlords for carrying on business in the name and style of M/s. Eskay’s Time Shop for a period of 11 months on monthly rent of Rs.1,300/- and the said lease was renewed from time to time and by the end of January 1991 the rent payable was Rs.1,500/-. It is alleged in the plaint filed by the landlords that after the death of the original landlord, his sons – present plaintiffs, who succeeded the original landlord, sought possession of the suit schedule premises for their personal use but as the tenants have not agreed to the request of the landlords, the landlords terminated the tenancy of the tenants by legal noticed dated 22.04.1998 issued under Section 106 of the Transfer of Property Act. The said notice marked as Ex.A2 was received by the tenants and gave a reply notice dated 25.05.1998 under Ex.A7. As the tenants did not vacate the premises, the landlords filed a suit being O.S.No.137 of 1999 and the said suit was resisted by the tenants alleging that the termination is not valid and as such, there is no cause of action for filing the suit, secondly the said notice stood waived by the landlords as they accepted rents after the termination of tenancy under the said notice and thirdly, the eviction of the tenants from the buildings, which fall within the purview of the Andhra Pradesh Buildings (Lease, Rent and Eviction) Control Act, based upon the limit of Rs.1,000/- rent vide G.O.Ms.No.636 dated 29.12.1983 is unconstitutional and invalid. The trial Court framed several issues, particularly, including issue No.3 as to whether the notice of termination is held legal and valid and on issue No.4 as to whether the plaintiffs waived their right of termination and an additional issue as to whether this Court is having jurisdiction to entertain the suit basing on the validity of G.O.Ms.No.636, both were answered in favour of plaintiff and decreed the suit. 4. The said decree granted by the trial Court was questioned by the appellants/tenants before the lower appellate Court. Under the impugned judgment, the lower appellate Court had framed a point as to whether the decree of eviction granted by the trial Court with mesne profits is justified. On the basis of the material on record and the provisions of Section 106 of the Transfer of Property Act, as duly amended, the lower appellate Court also concurred with the finding of the trial Court that the quit notice under Ex.A2 is valid. The trial Court also accepted that the finding of the trial Court that there is no waiver of quit notice, as the landlords have received the rents under protest and to the extent of the contention with regard to G.O.Ms.No.636 dated 29.12.1983 is concerned, since the admitted rent was Rs.1,500/- per month, the lower appellate Court also concurred with the finding of the trial Court that the civil Court had jurisdiction. Accordingly, the appeal was dismissed. 5. Questioning the said decree, the present second appeal is filed and has been admitted on 11.06.2009 on the substantial questions of law raised at ground Nos.A to H and as per the directions of this Court, the appeal is being listed for hearing. 6. Learned counsel for the appellants/tenants has vehemently contended that the notice issued under Section 106 of the Transfer of Property Act i.e. Ex.A2 is not valid, as the date on which the notice was issued, the Transfer of Property (Amendment) Act was not enacted and 15 days notice was not given as required under the provision of Section 106 of the Act. He also contended that the respondents/landlords have claimed mesne profits on 01.06.1998 but has received the rents without any protest from 01.06.1998 till the date of suit i.e. 17.02.1999 and therefore, it amounts to waiver of Ex.A2. He also contended that there is no Court fee paid by the landlords with regard to past profits at the rate at which it was claimed in the suit and in Ex.A2. 7. The aforesaid contentions have been duly replied to by the learned counsel for the respondents/landlords contending that, firstly, so far as waiver is concerned, there is no specific evidence of the landlords receiving rents without any protest and on the contrary, all the rents were sent by Registered Post Acknowledgement Due and while receiving the rents, the landlords have endorsed the protest under the acknowledgements itself. The said acknowledgements being in custody of the tenants have been withheld from the Court and not produced, which clearly shows that an adverse inference against the appellants/tenants deserves to be raised. Secondly, he contended that the provisions of Section 106 of the Transfer of Property Act, as amended, being retrospective in nature, the amended provision applies to the notice already issued pending suit and there is no impediment with respect to the said quit notice, as the suit has been filed after more than 15 days after receipt of the said notice by the tenant. Thirdly, the aspect of Court fee is justified by the learned counsel for the respondents/landlords on the ground that from the date of termination of tenancy till the suit, the relief is separately valued and the Court fee is paid apart from the relief for possession being separately valued and proper Court fee is again separately paid. The learned counsel also submits that the concurrent findings of both the Courts below do not deserve to be interfered with. 8. Section 106 of the Transfer of Property Act, as amended by the Transfer of Property (Amendment) Act, 2002 with effect from 01.01.2003 clearly shows that there should be 15 days notice with respect to month-to- month tenancy and the said 15 days notice was not required to be of the precision as required under the un-amended provision. Further, the transitory provision under the said Amendment Act makes it clear that the said amendment applies to pending proceedings as well. The quit notice under Ex.A2 is, therefore, even otherwise valid and legal and the finding of both the Courts below on that aspect do not call for any interference. Similarly, the plea of waiver raised by the learned counsel for appellants/tenants also is liable to be rejected in view of the fact that there is no evidence produced by the appellants/tenants to say that the landlords have received the rents, after termination of tenancy, without any protest and with an intention to keep the lease renewed for a further period. As rightly pointed out by the learned counsel for the respondents the registered acknowledgements, which are in the custody of the appellants/tenants covering the rents sent by the tenants and received by the landlords after the date of termination till the date of filing of the suit, are not produced by the tenants and an adverse inference is necessary to be drawn that, if produced, the said documents would have gone against the contention of the tenants. The said plea is also liable to be rejected. In view of the both the contentions having been rejected the concurrent findings of the Courts below do not call for any interference. The appeal is, therefore, without any merits and is liable to be dismissed. 9. However, at this stage, the learned counsel for the appellants/tenants seeks time to vacate the premises, as they are in occupation of the suit premises for over 31 years and the tenants would require sufficient time to locate alternate premises for business. Considering the facts and circumstances of the case, I am of the view that a reasonable time is necessary to be granted. The second appeal, therefore, is dismissed. However, the appellants/tenants are granted time to vacate the suit premises up to 31.12.2010 subject to condition that the appellants/tenants shall file an undertaking in usual form before the trial Court within a period of two (2) weeks from today and shall also undertake that they shall not alienate or create any third party interest with regard to the schedule property and shall continue to pay the agreed rents at Rs.1,500/- per month till 31.12.2010 i.e. the date of their vacating the premises and obtain receipts from the respondents/landlords. In default of the appellants/tenants in complying with the condition of giving undertaking, as mentioned above, the respondents/landlords shall be free to execute the decree in accordance with law. There shall be no order as to costs. _____________________ VILAS V. AFZULPURKAR, J March 18, 2010 DSK