The defendant is in appeal.
2. Respondent approached the trial court for recovery of plaint schedule room from the appellant with damages for use and occupation.
3. The respondent alleged that plaint schedule room was taken by the appellant on lease in December, 1986 for a period of eleven months and the arrangement was continued by executing subsequent documents. On 1.4.1992, a lease deed was executed for eleven months and the period expired in February, 1993. There was default in paying the rent from March, 1993. Notice was sent on 3.6.1994 demanding vacant possession. Since the room was not surrendered, the suit was laid.
4. Appellant contended that there was no proper notice terminating the lease as required under Section 106 of the Transfer of Property Act, 1882.
5. The trial court, after considering the evidence consisting of the oral testimony of PW1 as well as Exts.A1 and A2 and Exts.B1 to B4, granted a decree as prayer for by the respondent. Though the matter was taken in appeal by the appellant before the lower appellate court, the appellate court confirmed the decree of the trial court. Thus, the appellant has come up in appeal.
6. Arguments have been heard.
7. The contention of the appellant is that Section 106 of the Transfer of Property Act applies to a case of tenancy of holding over and, therefore, without a proper notice as required under Section 106 of the Act, the appellant could not be evicted.
8. The courts below relying on Section 111 of the Transfer of Property Act held that lease has been terminated by efflux of time, as there was a clear stipulation in the lease deed that it was for eleven months.
9. The courts below should have found that the mere fact that the period stipulated in the lease deed is over, does not disable the parties from continuing the lease arrangement beyond the said period on the same terms and conditions. Therefore, it should have been found that Section 111 of the Transfer of Property Act does not, in any manner, affect the said right of the parties. Therefore, the reasoning adopted by the trial court to grand a decree on the ground of efflux of time is not legally sustainable.
10. However, the contention of the appellant that there was no valid termination of lease as mandated by Section 106 does not assume much relevance in the light of Section 106 which now stands amended by Act 3 of 2003. The amended section reads as follows:
“106. Duration of certain leases in absence of written contract or local usage.--(1) In the absence of a contract or local law or usage to the contrary, a lease of immovable property for agricultural or manufacturing purposes shall be deemed to be a lease from year to year, terminable, on the part of either lessor or lessee, by six months' notice; and a lease of immovable property for any other purpose shall be deemed to be a lease from month to month, terminable, on the part of either lessor or lessee, by fifteen days' notice.
(2) Notwithstanding anything contained in any other law for the time being in force, the period mentioned in sub-section (1) shall commence from the date of receipt of notice.
(3) A notice under sub-section (1) shall not be deemed to be invalid merely because the period mentioned therein falls short of the period specified under that sub-section, where a suit or proceeding is filed after the expiry of the period mentioned in that sub- section.
(4) Every notice under sub-section (1) must be in writing, signed by or on behalf of the person giving it, and either be sent by post to the party who is intended to be bound by it or be tendered or delivered personally to such party, or to one of his family or servants at his residence, or (if such tender or delivery is not practicable) affixed to a conspicuous part of the property.”
11. Sub section (3) makes it clear that notice does not become invalid merely because of the period mentioned therein falls short of the period specified under sub section (1). Therefore, the respondent who is the plaintiff is entitled to get a decree as prayed for though the reasoning adopted by the courts below for granting a decree is not legally sustainable.
12. The learned counsel for the appellant, inter alia, pointed out that the courts below have granted interest @ 12% per annum on the arrears of rent. It was pointed out that though no rent was received by the plaintiff after the expiry of the period, in fact, it was tendered and refused by the plaintiff. This contention of the appellant was not rejected by the trial court also. Under such a circumstance, it is only just and proper to relive the appellant from the liability of paying interest on the arrears of rent. I do so. The trial court decree which is confirmed by the lower appellate court is modified to that extent.
In the result, the appeal is disposed of confirming the decree for eviction and making it clear that the appellant is not liable to pay the interest on the arrears of rent. The appellant shall surrender vacant possession of the building along with arrears of rent within three months from today. The appellant shall file an affidavit before the trial court or the execution court as the case may be, expressing his willingness to surrender within three months from the date of receipt of a copy of this judgment, together with the arrears of rent. If the appellant fails in filing the affidavit within the aforesaid period and gives vacant possession of the building, along with admitted rent, it shall be open to the execution court to proceed with the execution.
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A.V.RAMAKRISHNA PILLAI JUDGE krj /True Copy/ P.A to Judge