JUDGMENT
G.V. Seethapathy, J.
1. This appeal is directed against the judgment and decree dated 11-8-2003 in O.S. No. 1475 of 1997 on the file of I Senior Civil Judge, City Civil Courts, Hyderabad, wherein the suit filed by the respondents herein for eviction of the appellant and for mesne profits was decreed and the claim for damages in a sum of Rs. 1,50,000/- was dismissed.
2. The respondents herein filed suit with the following averments:
The plaintiffs are the absolute owners of the premises bearing No. 1-5-176/35/22 (Plot No. 11-A), Bhagyalakshminagar Colony, Hyderabad, described in the plaint schedule. The defendant approached the plaintiffs for lease of the schedule premises for the purpose of residence cum school. The monthly rent was fixed at Rs. 3,500/- per month for about two years with a stipulation to enhance the rent by 10% over two years. An agreement dated 27-3-1991 was entered into. The present rent for the suit premises in Rs. 4,235/- per month. The tenancy commenced from 1-6-1991 and the lease was for a period of six years with a provision to extend the same with mutual consent. Contrary to the terms of agreement, the defendant made alterations to the building and put up thatched sheds and asbestos sheds for running school. The meter fixed to the bore well was also not maintained properly. The plaintiff sustained damage to an extent of Rs. 1,50,000/-. The suit building is located in the midst of the residential locality. The President of Bhagyalakshminagar Welfare Association issued a notice dated 28-9-1993 complaining about the nuisance caused by the students of the school in the locality. The defendant never paid the rents in time. After issuing notice dated 15-5-1997, the defendant started sending rents by post. In the said notice, the plaintiff demanded to vacate the premises. The defendant gave a reply dated 27-5-1997 with false allegations. The tenancy is terminated by the end of May. The defendant failed to vacate the premises in spite of quit notice. The plaintiffs are entitled to claim mesne profits at the rate of Rs. 10,000/- per month as per prevailing rental value. Accordingly a sum of Rs. 3,60,000/- towards mesne profits is due to the plaintiffs.
3. The defendant filed written statement admitting that the plaintiffs are the owners of the suit building and she is a tenant on a monthly rent of Rs. 3,500/- and later enhanced to Rs. 4,235/-. The defendant however denied the agreement dated 27-3-1991 and further contended that the said document is not admissible in evidence for want of necessary stamp duty and registration. She also denied to have made any alterations to the building and caused any damages. The defendant further denied that she was irregular in payment of rents or that the lease period expired by 31-5-1997. She further contended that the notice dated 15-5-1997 issued by the plaintiff is illegal and void and she gave a suitable reply on 27-5-1997.
4. On the strength of the pleadings, the trial Court framed the following issues and additional issues for trial.
1. Whether the plaintiff is entitled for the relief of eviction of suit property as prayed for ?
2. Whether the plaintiffs are entitled for the relief of mesne profits as prayed for?
3. Whether the notice for termination of tenancy dated 15-5-1997 is illegal and void as contended by the defendant ?
Additional issues:
1. Whether the plaintiff is entitled for mesne profits at Rs. 10,000/- per month from 1-6-1997 till the date of delivery of vacant possession of the suit property as prayed for ?
2. Whether the plaintiff is entitled for Rs. 1,50,000/- towards damages as prayed for ?
5. P.Ws.1 and 2 were examined and Exs.A.1 to A.5 were marked on behalf of the plaintiffs. DWs.1 and 2 were examined and Exs.B.1 to B.5 were marked on behalf of the defendant.
6. On a consideration of the evidence on record, the trial Court gave a finding on issue No. 3 that the notice under Ex.A.2 was valid and tenancy was duly terminated as per Section 106 of the Transfer of Property Act. On issue No. 2 and additional issue No. 1, the trial Court directed the plaintiffs to file a separate application under Order XX Rule 12 CPC for apportionment of the mesne profits; on issue No. 2 the trial Court held that the plaintiffs are not entitled for damages as claimed in a sum of Rs. 1,50,000/-; on issue No. 1 the trial Court held that the plaintiffs are entitled for the relief of eviction of defendant from the suit property. Accordingly the suit was decreed in part granting relief of recovery of possession with a direction to file separate application to ascertain mesne profits under Order XX Rule 12 CPC and dismissing the claim for damages in a sum of Rs. 1,50,000/-.
7. Aggrieved by the said judgment and decree, the defendant preferred the present appeal.
8. Arguments of the learned Counsel for the appellant and respondents are heard. Records are perused.
9. Learned Counsel for the appellant contended that Ex.A.2 notice is not a valid notice in terms of Section 106 of Transfer of Property Act (for short ‘Act’) and it does not terminate the tenancy and subsequent to issuance of notice also, the rents were received by the plaintiff and hence, the said notice Ex.A.2 was not acted upon. He further contended that in the plaint no relief for recovery of possession was asked and declaratory relief sought cannot be executed. Learned Counsel for the respondents on the other hand contended that the prayer in the suit is for eviction only, as the tenancy was duly terminated by issuing 15 days’ notice under Ex.A.2 ending with 31-5-1998, as the tenancy was from month to month and the decree granted by the trial Court for eviction is not liable to be interfered with.
10. It is not disputed that the respondents-plaintiffs are the owners of the suit schedule premises and the defendant has taken the same on lease for the purpose of residence cum school on a monthly rent of Rs. 3,500/-with a stipulation for enhancement by 10% every two years and that by the date of filing of the suit, the monthly rent was Rs. 4,235/-. It is also not disputed that the agreement of lease was entered into on 27-3-1991, stipulating the lease period of six years commencing from 1-6-1991. The plaintiffs alleged that the defendant has effected material alterations to the building by putting up sheds and also caused damage to the building while running school and they claimed a sum of Rs. 1,50,000/- towards damages. The defendant denied having effected any material alterations or causing any damage to the building and opposed the said claim. On proper appreciation of the evidence on record, the trial Court has rejected the said claim for damages and the said finding has become final, as the same is not assailed by the plaintiffs by way of any appeal.
11. The only question, which arises for consideration in this appeal, is whether there was valid quit notice in terms of Section 106 of the Transfer of Property Act ?
12. It is not disputed that the plaintiffs got issued a notice Ex.A.2 dated 15-5-1997 calling upon the defendant to vacate the premises and hand over possession by 31-5-1997 by which date, the lease period also expires. The said notice was received by the defendant and she gave a reply Ex.A.3 dated 27-5-1997 admitting the tenancy, but asserting that she is not liable to vacate. In Ex.A.3 the defendant admitted that earlier she received a letter from the first plaintiff but she did not agree to vacate the premises. In the evidence DW.1 however admitted that she was searching for alternative building and when once she secured the same she would vacate the suit premises.
13. Be that as it may, the question to be considered is whether Ex.A.2 constitutes a valid quit notice as per Section 106 of the Act. The lease agreement dated 27-3-1991 being for a period of six years and being unstamped, and unregistered, was not admitted in evidence and hence, the tenancy shall be deemed to be from month to month. In fact, DW.1 also admitted in her evidence that the tenancy is month to month. The notice Ex.A.2 was issued on 15-5-1997 calling upon the defendant to vacate the premises by the end of the month i.e., 31-5-1997. The defendant received the notice on 20-5-1997 and she gave reply Ex.A,3 on 27-5-1997 before expiry of 15 days period. The suit was of course filed subsequently on 6-9-1997. Section 106 of the Act as it stood by the date of Ex.A.2 in 1997 states as follows:
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 expiring with the end of a year of the tenancy; 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 expiring with the end of a month of the tenancy.
Subsequently it was amended in the year 2002 by Amendment Act 3 of 2003, which came into force on 31-12-2002 inserting Clauses (2) and (3), which are as follows:
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.
14. As per amended provisions in Clause (2) of Section 106 of the Act, the period of 15 days shall commence from the date of receipt of notice and Clause (3) provides that the notice shall not be deemed to be invalid because of any shortage in the period when a suit is filed after expiry of the prescribed period. Going by the amended provisions of Section 106 of the Act, the trial Court held that the period of 15 days has to be reckoned from 20-5-1997 the date on which the defendant received Ex.A.2 notice and the said period of 15 days expires on 4-6-1997, which is beyond 31-5-1997, but however, by virtue of saving provision contained in Sub-section (3), the notice Ex A2 does not become invalid, as the suit was filed in September 1997, which is far beyond the expiry of 15 days period.
15. The question, which arises for consideration, is whether the notice Ex.A.2 was invalid because it was received by the defendant on 20-5-1997 leaving less than 15 days before the end of the month.
16. Section 3 Transfer of Property (Amendment) Act, 2002 (Act 3 of 2003) states as follows:
3. Transitory provisions :–The provisions of Section 106 of the principal Act, as amended by Section 2, shall apply to….
(a) all notices in pursuance of which any suit or proceeding is pending at the commencement of this Act; and
(b) all notices which have been issued before the commencement of this Act but no suit or proceeding has been filed before such commencement.
The above provision makes it abundantly clear that the provisions of Section 106 of the principal Act as amended by Section 2 of the Amendment Act, shall apply to all notices in pursuance of which any suit or proceeding is pending at the commencement of the Amendment Act. By virtue of the above transitory provision, the amended provisions of Section 106 apply to all the proceedings pending by the date of commencement of the Act.
17. In the present case, notice Ex A2 was issued on 15-5-1997 and it was served on the appellant on 20-5-1997 and the appellant gave a reply Ex.A.3 on 27-5-1997. Though the period from the date of receipt of the notice of Ex.A.2 by the end of the month falls short of the prescribed period of 15 days, the suit was filed much later in September 1997. In view of the specific provision contained in Section 3 of the Amendment Act saving the pending proceedings and making the amended provisions applicable to all such notices in pursuance of which suit or proceeding is filed and pending by the date of commencement of the Act, the contention of the learned Counsel for the appellant that Ex.A.2 notice is invalid, cannot be accepted. By virtue of Sub-section (2) of Section 106 as amended, the period of 15 days shall be reckoned from the date of receipt of the notice. In view of Sub-section (3) of Section 106 as amended, merely because there is a short fall in the period, the notice does not become invalid, inasmuch as the suit was filed in September 1997 long after the expiry of the period mentioned in Ex.A.2 notice. The fact that the period between 20-5-1997 the date on which Ex.A.2 was received by the appellant and 31-5-1997 the last date of the month falls short of the prescribed period of 15 days, is of no consequence in the light of the amended provisions of Section 106 of the Act, which are specifically made applicable to the pending proceedings in the Amendment Act itself. In the circumstances, it must be held that the notice Ex.A.2 is valid and enforceable.
18. Learned Counsel for the appellant contended that the notice Ex.A.2 does not purport to determine the tenancy. Though it is not stated in Ex.A.2 specifically that the tenancy is terminated by issuing the said notice, there was a definite call upon the appellant-defendant to hand over possession pf the building by 31-5-1997, failing which, the respondents would be constrained to initiate appropriate legal action for recovery of possession besides claiming compensation for the alleged damage to the building. The demand made in Ex.A.2 calling upon the appellant to hand over possession by 31-5-1997 coupled with the warning in the event of the appellant not complying with the demand, the respondents would be constrained to initiate appropriate legal action for recovery of possession, clearly demonstrates the unequivocal intention of the plaintiffs to determine the lease by 31-5-1997. The fact that no reference is made in Ex.A.2 to Section 106 of the Act does not take away from the notice the character of its being one for determination of lease. The reasons for terminating the lease are also mentioned in Ex.A.2 fixing a date commensurate with the end of the month in which the notice was issued, by which the defendant was required to vacate and hand over the possession. A reading of the contents of Ex.A.2 on the whole clearly shows that it was nothing short of a quit notice contemplated under Section 106 of the Act.
19. Learned Counsel for the appellant nextly submitted that in the plaint, there is no specific prayer for eviction of the defendant and the declaratory prayer is not executable. The first relief prayed for in Para 7 of the plaint is for declaration that the defendant is to be evicted from the suit schedule premises and the second relief is for recovery of mesne profits at the rate of Rs. 10,000/- per month from 1-6-1997 and the 3rd relief is for recovery of damages in a sum of Rs. 1,50,000/-. Though the first relief is couched in such language making it appear as though declaratory relief is prayed for, body of the plaint and the other reliefs prayed for by the plaintiffs makes it clear that the plaintiffs have determined the lease and the suit is filed for eviction and also for mesne profits. In Para 4 of the plaint, it is averred that the cause of action arose inter-alia on 31-5-1997 when the period of lease came to an end and subsequently when the defendant refused to vacate the suit schedule premises and also on 27-5-1997 when the defendant gave a reply refusing to vacate. Even the declaration prayed for is only that the defendant is to be evicted from the suit schedule premises. The trial Court has properly moulded the relief granted in the decree, wherein it is stated that the plaintiffs are entitled for recovery of suit schedule premises from the defendant and the defendant is directed to vacate the same and the mesne profits shall be ascertained by way of separate application under Order XX Rule 12 CPC. When the plaintiffs are otherwise found to be entitled for the reliefs in respect of which the suit is filed, they cannot be denied the said reliefs simply because the prayer portion in the plaint is not happily worded, especially, when a reading of the plaint as a whole makes clear the plea of the plaintiffs and the reliefs sought for by them.
20. In the circumstances and for the reasons stated above, the judgment and decree dated 11-8-2003 passed by the trial Court in O.S. No. 1475 of 1997 are held not liable to be interfered with.
21. In the result, the appeal is dismissed. In the circumstances, no order as to costs. Time granted for eviction is two months.
