The defendant in O.S.No.2078 of 2006 on the file of the court of X Junior Civil Judge, City Civil Court, Hyderabad is the appellant herein.

2. The suit was one filed for eviction of the defendant from the suit schedule property. The allegations in the plaint goes to show that the defendant is the tenant of the plaintiff, which is a residential building, on a monthly rent of Rs.5000/-per month from October2003 for a period of two years initially. There was also an agreement for enhancing the rent @ 10% for every two years. The defendant was irregular in payment of the rents and in spite of repeated demands and also a notice, he did not pay the money. The tenancy was terminated by a notice dated 22-12-2005. The suit premises is situated in a prime locality and would be fetched a rent of not less than Rs.8000/-per month. The defendant was in arrears of rent of Rs.35,000/-.

3. The defendant filed a written statement admitting the tenancy and also the rent of Rs.5000/-. The rents were paid regularly to the plaintiff or her husband by way of account payee cheques. No default was committed by the defendant. In fact, three cheques were sent for the month of September to November-2005 but they were not collected by the plaintiff. The notice under Section 106 of the Transfer of Property Act,1882 (for short “the Act”) was not served on the defendant. The rental value as claimed by the plaintiff is not true. Consequently, the defendant pleaded for dismissal of the suit.

4. After considering the necessary evidence on record, the court below has passed a decree for eviction and directing payment of arrears of rent @ Rs.35,000/-which was already deposited. The mesne profits are directed to be decided on a separate application. As against judgment, A.S.No.98 of 2008 was filed and the appellate court confirmed the order of eviction and so far as the mesne profits are concerned, the defendant is directed to pay Rs.5,500/-per month from March 2006 to September,2007 and Rs.7,000/-per month thereafter for two years and thereafter at Rs.8,000/-per month for two years with a hike of 20% for every two years. Aggrieved by the said judgment, the present Second Appeal is filed.

5. The Second Appeal was originally admitted on the following substantial questions of law:-

“1. Whether both the courts have committed an error by holding that the endorsement of sufficient service on Ex.A-5 and A-6 “not claimed” amounts to sufficient service of notice when the Appellant having discharged the burden of proof, it shifts on the Appellant and having not discharged is contrary to Section 103 of the Evidence Act.

2. Whether the appellate court can pass a decree for possession when the appellant has discharged the burden of proof of non-service of notice and whether such a decree is in sufficient compliance with the provisions of Section.106 of T.P.Act.”

At the time of arguments, a further question of law has been raised about the grant of mesne profits by the appellate court. Consequently, the following additional question of law is also framed.

Additional issue:-

Whether the appellate court is justified in granting the future mesne profits without any inquiry Under Order XX Rule 12 C.P.C.?

POINTS:-

6. The case on hand is an example as to how the appellant, who has entered into the residential premises of a landlady, is putting her of inconvenience and also not paid the rents for sufficiently long time. The relationship of landlady and tenant is not denied. The learned counsel for the appellant tried to contend that there is no proper notice under Section 106 of the Act and consequently the suit is not maintainable. As can be seen from the proceedings the notice under Section 106 of the Act was sent to the defendant to his residential address and also the office address. Ex.A-2 is the notice and Exs.A-5 and A-6 are the returned postal covers. The defendant does not dispute about the correctness of the address mentioned therein. It is difficult to believe that