B.CHANDRA KUMAR

1. This appeal is directed against the judgement and decree dt. 14.8.2002 passed in O.S.No. 75 of 2000 by the learned Additional Senior Civil Judge, Eluru, West Godavari District.

2. The parties will be referred to as they are arrayed before the lower Court for the sake of convenience.

3. The plaintiff filed the suit for eviction of the defendant from the suit schedule shop and also for damages. His specific case is that himself and the defendant entered into a lease agreement on 01.01.1998 agreeing to lease out the suit schedule shop on a monthly rent of Rs. 1800/- and the lease period was for two years from 01.01.1998 and that the defendant has also paid an advance of Rs. 15,000/-. It was agreed that the advance amount would be repaid by the plaintiff at the time of defendant vacating the shop without any interest. The original agreement was kept with the defendant and the plaintiff retained a Photostat copy of the said agreement. The grievance of the plaintiff is that though the period of lease was over and inspite of several requests made by him, the defendant did not vacate the premises. It was also stated that the defendant effected certain changes causing damage to the suit schedule shop and that the plaintiff should spend at least Rs. 18,000/- to get the suit schedule shop to its original shape. The plaintiff got issued a legal notice to the defendant to vacate the shop as per the terms of the lease agreement and that the defendant having received the said notice, got issued a false reply stating that that the lease period is upto 31.12.2000 and that he had spent about Rs. 100,000/- for effecting repairs.

4. The defendant filed written statement admitting that he is the tenant of the suit schedule shop on monthly rent of Rs. 1800/-. However his specific case is that the lease period is for three years from 1.1.1998 to 31.12.2000 and that the period of lease was mistakenly mentioned as two years in words instead of three years. It was further stated that suit is not maintainable without issuing a valid notice, as required under Section 106 of the Transfer of Property Act. The other averments made by the plaintiff have been denied.

5. The trial court framed necessary issues and on behalf of the plaintiff, the plaintiff himself was examined as Pw.1 and Pws 2 to 4 were examined and Exs: A.1 to A.3 were marked. On behalf of the defendant, the defendant himself was examined as DW.1 and DWs 2 and 3 were examined but no documents were marked on his behalf.

6. The trial Court, on appreciation of oral and documentary evidence, held that the lease period was for two years only and that the version of Pw.3 is acceptable on this point and that no notice is required under Section 106 of the T.P. Act since there is specific recital with regard to lease period and that on expiry of lease period, the defendant has to vacate the suit schedule shop. As far as damages are concerned, the lower Court held against the plaintiff, but however, the suit was decreed with proportionate costs directing the defendant to vacate the suit schedule shop and deliver the vacant possession of the same to the plaintiff within two months from the date of judgement, failing which the plaintiff is at liberty to get it done through the process of law. Aggrieved by the same, the present appeal has been filed.

7. The main contention of the learned counsel for the appellant/defendant is that when the date has been specifically mentioned in the lease deed as 31.12.2000, the lease period cannot be said to be only for two years. It is also contended that Ex:A.1 is an unregistered instrument and therefore inadmissible in law. It is also submitted that the plaintiff who is examined as Pw.1 has admitted that he has been receiving rents after issuing quit notice without any protest and it amounts to waiver of quit notice and therefore without issuing a fresh notice as required under Section 106 of the T.P. Act, the suit is not maintainable.