IMPORTANT POINT
The validity of a notice under Section 106 of the Transfer of Property Act is upheld, confirming the landlord's right to evict despite acceptance of rent post-termination.

JUDGMENT:

(Venkata Jyothirmai Pratapa, J.)

Impugning the Judgment and Decree dated 12.10.2018 passed in O.S.No.1650 of 2010 by the learned VI Additional Senior Civil Judge, Visakhapatnam,[Hereinafter ‘trial court’] the Defendant therein preferred the present Appeal.

2. Plaintiff filed the suit O.S.No.1650 of 2010 seeking eviction of the Defendant from the plaint schedule property and for damages at Rs.20,000/- per month from October, 2010 till the date of handing over the vacant possession. Appellant herein was the Defendant and Respondent herein was the Plaintiff. For the sake of convenience, the parties will be referred to, as they were arrayed, before the trial Court.

3. The case of the Plaintiff, in brief, is as follows;

3.1. It is averred in the plaint that the Plaintiff is the absolute owner of the schedule property, situated in Prakasarao peta, Visakhapatnam, consisting of two shop rooms in the ground floor of the building and the Defendant has taken the said two shop rooms on lease, for the purpose of doing business in the name and style of “M/s. Dolls-n-Chic Boutique.” The tenancy is month to month on payment of Rs.11,753/- per month. It is stated that the Defendant was irregular in paying monthly rents.

3.2. The Plaintiff was advised to go for a new construction, since the building was more than thirty years old, vide report issued by the Andhra University College of Engineering, Visakhpatnam on 20.02.2010.

3.3. It is further stated that the Plaintiff has informed all the tenants including the Defendant to vacate the schedule property, for which the Defendant expressed his willingness but, later filed a suit in O.S.No.166 of 2010 on the file of the Court of I Additional Junior Civil Judge, Visakhapatnam, and obtained an ex-parte interim Order.

3.4. It is further stated that the Plaintiff got issued a legal notice on 26.07.2010 seeking the Defendant to vacate from the premises by September, 2010. In turn, the Defendant, has sent a reply along with a cheque No.021454 dated 23.09.2010 drawn on Central Bank of India, Visakhapatnam, for an amount of Rs.58,765/- towards arrears of rent payable from May, 2010 to September, 2010 and thereby, the Plaintiff terminated the tenancy of the Defendant by September, 2010. It is further stated that the Defendant did not choose to vacate the schedule premises. Hence, suit.

4. The case of the Defendant, in brief, is;

4.1. In the written statement, defendant admits the tenancy since 1989 on payment of monthly rent, the age of the building as 30 years and also of his business in the premises. He stated that the tenancy is in existence till the end of 2016 and he has paid Rs.25,000/- towards interest free refundable amount.

4.2. It is further stated that the schedule property is in good condition. The Inspection Report dated 20.02.2010 of the Andhra University College of Engineering is created for the purpose of the suit and that therefore, he is not liable to pay any damages.

4.3. It is further stated that on 01.04.2006, the Plaintiff gave a Memorandum of Understanding for continuing the lease in favour of the Defendant by enhancing the rent and the lease was extended till 2016 orally and rent was enhanced to Rs.11,753/-

4.4. It is the further case of the Defendant that the rents are being paid regularly and that since the Plaintiff received the cheque for Rs.58,765/-, she waived her right for seeking eviction. There is a demand from the Plaintiff to enhance the rent to a tune of Rs.30,000/- per month in February, 2010 and to pay further advance of Rs.1,50,000/-. As the Defendant expressed his inability to meet these demands, Plaintiff and her father tried to dispossess the Defendant from the schedule premises forcibly on 09.02.2010. To which, Defendant filed O.S.No.166 of 2010 for permanent injunction.

4.5. It is further stated that he is eking out his livelihood in the business being carried out in the schedule premises. If he vacates, he may lose his livelihood and there are no bona fid