THE HON’BLE SRI JUSTICE G.BHAVANI PRASAD S.A.NO.389 OF 2011 JUDGMENT The second appeal is directed against the judgment and decree in A.S.No.1 of 2010 on the file of the Chief Judge, City Civil Court, Hyderabad, dated 22-2-2011. Factual background for the second appeal is that the respondent herein filed the suit in O.S.No.355 of 2008 on the file of the II Senior Civil Judge, City Civil Court, Hyderabad against the appellants herein for eviction of the appellants from the suit premises, delivery of possession of the same, arrears of rent of Rs.1,26,000/-, future mesne profits and costs. He claimed that in September, 2004, the first appellant took the suit premises owned by him on lease for a monthly rent of Rs.6,000/- per month for the residence of himself and his family. He later introduced the second appellant and his family and also his mother-in-law into the suit premises. The respondent herein further alleged that the first appellant illegally occupied the open terrace, constructed sheds and carried on commercial activity of running a saree rolling cum dyeing unit. The use of chemicals by the first appellant caused health hazard to the neighbours and the first appellant, who gave an advance of Rs.10,000/- at the time of entering into the premises, agreed to pay rent at Rs.10,000/- per month from 1-9-2006 and at Rs.12,000/- per month from 1-7-2007. He did not respond to a legal notice and the termination of the lease by the notice dated 29-1-2008, which led to the suit. The appellants claimed that they are residing jointly in the suit premises with their families since September, 2003 and admitted rent is only Rs.3,500/- per month. The first appellant erected the shed on the open terrace with the permission of the respondent on the assurance of continuing him till 2012. The rent was enhanced to Rs.4,500/- from January, 2007 and further agreed to be enhanced at 5% p.a. The rents were paid regularly and when the first appellant demanded the wife of the respondent to repay a loan of Rs.5,00,000/-, the respondent got filed the suit to harass the appellants. The first appellant gave a reply to the legal notice on 21-2- 2008. Hence, the appellants sought for dismissal of the suit. The trial Court framed issues about the liability of the appellants for eviction, the default in payment of rents by the appellants, the entitlement of the respondent to damages/future mesne profits etc and examined PWs.1 to 5 and DWs.1 and 2 and marked Exs.A1 to A11, Exs.X1 to X4 and Exs.B1 and B2, during trial. The trial Court rendered its judgment on 11-11-2009 firstly concluding on the oral and documentary evidence that the claim of the respondent herein is preferable than the claim of the appellants herein about the lease being only to the first appellant and his family but not to the family of both the appellants and mother-in-law. The trial Court also concluded that the alleged permission by the respondent herein to the appellants herein to occupy the open terrace, raise sheds and carry on saree rolling cum dyeing business is also improbable more so in the admitted absence of fixation of any separate rent. The carrying of such business was itself considered to be illegal in a residential area and the trial Court also found that the appellants did not even pay water tax as admitted by the first appellant resulting in disconnection of water supply to the premises. The alleged transaction of loan of Rs.5,00,000/- from the first appellant’s wife to the respondent’s wife was considered outside the scope of the suit. A criminal case is also pending concerning the same. The trial Court considered the claims of the respondent herein about the payment of rent and default to be reasonable and felt that the respondent herein is entitled to evict the appellants from the suit house. The trial Court also fixed damages for use and occupation of the premises at Rs.15,000/- per month and decreed the suit with costs from the date of the suit till the date of delivery of possession and directed the appellants to vacate the premises within 60 days and pay arrears of rent of Rs.1,26,000/-. In the appeal preferred by the appellants against the said judgment and decree, the first appellate Court by the impugned judgment again referring to the rival pleadings, contentions and evidence, considered the points about the entitlement of the respondent herein for eviction of the appellants, the appellants herein being in arrears of rent, the entitlement of the respondent herein for damages for use and occupation and the susceptibility of the judgment and decree of the trial Court for any interference. The first appellate Court found that the respondent herein is the admitted owner of house in question, in which the appellants are residing in the front portion since 1994 while they were earlier residing in 1993 and earlier in the rear portion. A shed was also raised on the terrace of the house used for the commercial activity of dyeing, printing and rolling of sarees. The first appellate Court found that the appellants could not produce any evidence with regard to the alleged permission by the respondent for erecting the said shed and conducting such business. It further noted that Ex.A4 - quit notice was admittedly received by the appellants, for which, a reply notice was also given by the appellants under Ex.B1. The first appellate Court examined the legality of the notice to quit, with reference to Section 106 of the Transfer of Property Act, 1882 (for short ‘the Act’) and in respect of the lease from month to month terminable by 15 days notice, the first appellate Court concluded the notice to be valid. The suit has been filed one month after the first appellant received the said notice. The first appellate Court also concluded the appellants to have committed default in payment of rents and used the premises for commercial purposes against the wishes and interest of the respondent herein. In Ex.B1 notice, the appellants themselves agreed to vacate the premises after six months, but did not do so and consequently, the first appellate Court considered that the appellants are liable for eviction. The first appellate Court further examined the oral and documentary evidence to direct the appellants herein to pay Rs.10,000/- per month from 1-7-2007 till the date of filing of the suit. Further, the appellants are liable to pay damages for use and occupation of the premises at the same rate till the date of delivery of possession of the property to the respondent herein. While the respondent was made liable to pay the required Court fees, as and when the said amounts are paid, the appellants were granted two months to deliver vacant possession of the suit premises and also to deposit the arrears of rent and damages for use and occupation. The defendants/appellants herein challenged the said decree and judgment questioning the validity of the notice to quit under Section 106 of the Act and contended that damages for use and occupation could not have been granted at a quantified sum without an enquiry under Order 20 Rule 12 of CPC. The agreed rent of the demised premises at Rs.4,500/- per month was totally ignored and hence, the appellants contended that substantial questions of law arise for consideration about the validity of the notice to quit and fixation of damages for use and occupation, without any separate enquiry. Sri M.A.K.Mukheed, learned counsel for the appellants and Sri N.Lakshminarayana, learned counsel for the respondent-plaintiff, are heard at the stage of admission. The point for consideration is whether any substantial question of law arises for consideration for determination in the second appeal to enable the second appeal being entertained by the High Court. Section 100 of the CPC read with Order 42 Rule 2 there of mandates that the High Court should be satisfied with the involvement of a substantial question of law and the High Court shall formulate such a question before directing that the second appeal be heard on any such question. Admission of a second appeal as a matter of course has been strongly deprecated by the Apex Court and the satisfaction of the High Court about the existence of a substantial question of law is thus a sine qua non for entertaining any second appeal. In the suit for eviction at the instance of the admitted landlord against the admitted tenant, the questions that had arisen for consideration before the trial Court or the first appellate Court are about the liability of the appellants herein for eviction, the appellants being in arrears of rent and their liability to pay future mesne profits. Both the Courts below found that Ex.A4 legal notice dated 29-1-2008 satisfies the requirements of a valid notice to quit under Section 106 of the Act. Section 106 of the Act as amended by the Central Act No.3 of 2003 makes it clear by sub Section 3 that a notice under sub Section 1 of Section 106 shall not be deemed to be invalid merely because the period mentioned therein falls short of the period specified under sub Section 1, where a suit or proceeding is filed after the expiry of the period mentioned in sub Section 1. There is no contract or local law or usage to the contrary for not considering the lease of immovable property, which is not for agricultural or manufacturing purposes, to be a lease from month to month, terminable by 15 days notice and Ex.A4 notice was admittedly in writing, signed on behalf of the respondent-plaintiff and served personally on the appellants herein under Exs.A5 and A6, postal acknowledgments. The trial Court had considered the validity of the notice to quit, in its judgment, and in appeal, the first appellate Court had gone into the question more elaborately. The first appellate Court noted that the period specified in Ex.A4 is much less than the period of 15 days but the suit was filed more than 15 days after the date of receipt of notice. The enabling provision of sub-section 3 of Section 106 was rightly relied upon by the first appellate Court, which had also referred to the binding precedent cited before it, before concluding the notice to quit, to be valid. No contradicting circumstances arising out of the evidence on record or the provisions, have been brought to notice to deviate from the concurrent findings of the Courts below in this regard. If there was a valid notice to quit, the next question is about the conclusions of the Courts below about the default of the appellants in payments of rents. The trial Court, which had the benefit of observing the witnesses in person, had considered the claims of the plaintiff to be more credible than the claims of the defendants. There was admittedly no documentary evidence corroborating the pleas about the agreed rate of rent or the alleged discharge of liability to pay the rents. As rightly observed by the trial Court the conduct of the defendants is such as to lead to disconnection of water supply to the premises. The arrears of rent claimed by the plaintiff being upheld cannot be considered to be against the broad human probabilities arising out of the evidence on record. Damages for use and occupation were assessed by the trial Court at Rs.15,000/- per month, while the first appellate Court assessed the same at Rs.10,000/-, without referring the parties to an enquiry under Order 20 Rule 12 CPC. The defendants desire that enquiry as to rent or mesne profits from the institution of the suit until the delivery of possession to the decree holder be ordered under Order 20 Rule 12 (1) ( c ) of CPC and learned counsel for the respondent-plaintiff has raised no serious objection for the same. As the question of future mesne profits has to be referred to a separate enquiry, as requested by the appellants and consented by the respondent, no expression of opinion need be made on the same in this adjudication. If so, no question of law, leave alone, a substantial question of law arises in the second appeal either concerning the validity of the notice to quit or regarding the decree for arrears of rent. The only qualification to which the impugned judgment and decree can be subjected to is modification of the direction on future mesne profits, which has to be relegated to a separate enquiry. Sri M.A.K.Mukheed, learned counsel for the appellants submitted that in the event of the Court not agreeing with his submissions, the appellants may be granted time for six months to vacate the premises in order to enable them to secure suitable alternative premises for carrying on their avocation as well as for their residence. Sri N.Lakshmi Narayana, learned counsel for the respondent vehemently opposed the said request. The respondent filed a calculation memo showing Rs.3,05,690/- as the net amount to be received from tenants as on today, if the rent and mesne profits were to be calculated at Rs.10,000/- per month as was done by the first appellate Court. The learned counsel also submitted another calculation memo showing that even if the rent or damages were to be assessed only at the rate admitted by the appellants, still Rs.40,890/- is due as on today and therefore, he contended that the appellants are not entitled to any equitable considerations in grant of time for vacating the premises. On the other hand, learned counsel for the appellants filed a memo stating that only Rs.18,415/- is due as on today to the respondent on the admitted rate of rent enhanced at 5% p.a. as contended by the appellants. Irrespective of the controversy about the quantum of damages for use and occupation to which the respondent-plaintiff is entitled since the date of suit which has to be determined in a separate enquiry, the fact remains that the appellants have admittedly paid Rs.2,36,310/- from the date of the suit since the commencement of litigation till today. The defendants- appellants are admittedly carrying on their business in the subject premises since 2004. The business being their source of livelihood, is not seriously disputed and notwithstanding their default earlier, they would require some reasonable time to secure suitable alternative accommodation for running their business or for their residence. Taking an overall view of the facts and circumstances of the case, granting of three months time will be in the interests of justice, balancing the rights of the parties. While the second appeal shall accordingly fail for want of existence of any substantial question of law, the appellants are to be so granted time for three months to vacate, while the determination of damages for use and occupation should be referred to a separate enquiry. In the result, the judgment and decree dated 22-2- 2011 in A.S.No.1 of 2010 on the file of the Chief Judge, City Civil Court, Hyderabad, is modified directing the determination of quantum of damages for use and occupation/future mesne profits in respect of the suit premises by a separate enquiry on an appropriate application by the decree holder under Order 20 Rule 12 of CPC, while said judgment and decree are confirmed in all other respects. The appellants-defendants are granted further time for three months from today to vacate and deliver possession of the suit schedule property to the respondent-plaintiff. Subject to the said modification and said grant of time, the second appeal is otherwise dismissed without costs. _____________________ G.BHAVANI PRASAD,J rkk Dated: 2-9-2011