The Court upheld the validity of the termination notice and the trial Court's decision to proceed with the suit based on available evidence, despite the defendant's absence for cross-examination.

This Second Appeal is preferred against judgment in A.S.No.66 of 2008 on the file of Sub Court, Pollachi confirming judgment of the trial Court passed in Ejection Suit in O.S.No.402 of 2007. Unsuccessful defendant is the appellant. For convenience, parties are referred to in their original rank in the suit.

2. Second plaintiff is the son of first plaintiff. Case of plaintiffs is that they are the owners of the suit property, which was let out to the defendant for using it as a godown for storing and keeping LPG gas cylinders for the purpose of distributing the same to the defendants customers. Defendant is an agent of LPG gas cylinders running in the name and style "Valliammal Gas Agency". The tenancy commenced in the year 1994 on a monthly rent of Rs.2,000/-. Defendant had put up a temporary shed for running his business. In the year 1992, defendant attempted to sublet the suit property and the plaintiffs filed suit in O.S.No.401 of 1992 for permanent injunction. Since defendant stopped his attempts to sublet the suit property, the said suit was not pressed on 13.01.1993. In June 1995, parties agreed to enhance the rent to Rs.2,100/- and a fresh lease agreement was to be executed from 01.07.1995. Since the defendant was not ready to get the lease deed executed and expressed his intention to vacate the suit property, he required some time to vacate. Further case of plaintiffs is that thereafter the defendant was not paying rent and after issuing Ex.A3 (dt. 29.08.1997) notice terminating the lease with effect from 24.09.1997, plaintiffs filed the suit for eviction of the defendant from the suit property after removing superstructure put up by the defendant and also claiming arrears of rent of Rs.50,000/-and claiming damages for use and occupation at the rate of Rs.4,000/- per month till delivery of property.

3. Defendant resisted the suit contending that he has paid Rs.20,000/- towards rental advance and that he has been paying the rent regularly, but the first plaintiff has not issued any receipt for receipt of rent. Defendant has denied having agreed to pay enhanced rent at Rs.2,100/- per month. According to defendant, Ex.A3 (dt. 29.08.1997)

- termination notice is not in terms of Section 106 of Transfer of Property Act. Defendant also contended that godown constructed in the suit property is under the direct control and maintenance of Hindustan Petroleum Corporation and therefore Hindustan Petroleum Corporation is a necessary party and suit is bad for non-joinder of necessary party.

4. On the above pleadings, four issues were framed in the trial Court. On plaintiffs side, first plaintiff was examined as P.W.1 and Exs.A1 to A6 were marked. On defendants side, defendant was examined as D.W.1 and no document was marked. Even though defendant had given evidence in chief examination, he failed to appear for cross examination. Since there was no representation on defendants side, his evidence was closed and trial Court proceeded to pass judgment under Order 17 Rule 3 of C.P.C. with available materials.

5. Upon consideration of evidence, trial Court held that statutory notice issued under Ex.A3 is valid and there was valid termination of tenancy. Trial Court further held that defendant failed to prove that he had remitted monthly rent from July 1995 to July 1997 and that plaintiffs are entitled to claim arrears of rent for 25 months i.e. Rs.50,000/-. Insofar as the prayer for recovery of Rs.4,000/-per month as damages for use and occupation, trial Court relegated the issue to be determined separately under Order 20 Rule 12 C.P.C. Trial Court decreed the suit with a direction that the defendant shall vacate the suit property and hand over vacant possession by removing the superstructure and pay Rs.50,000/- as arrears of rent.

6. Being aggrieved by the judgment of the trial Court, appellant/defendant filed appeal in A.S.No.66 of 2008. In the appeal, appellant/defendant mainly contended that the suit was not decided on mer