Sri. Aftab ali vs T.A.P.C.M.S., Mudiegere

A.S. Pachhapure

The appellant has challenged the Judgment and decree of eviction passed by the Trial Court, confirmed in the appeal. The facts relevant to the purpose of this appeal are here under;

The respondent is the plaintiff whereas the appellant is the defendant in the suit initiated for eviction.

The suit property is a shop premises described in the schedule to the plaint. The plaintiff is the owner and landlord of the suit property and he leased the premises to the wife of the defendant on a monthly rent of Rs.1,300/-. The lease agreement was also entered into between the parties. It was a monthly tenancy and on the death of the wife of the defendant in the year 2007, the defendant continued in possession of the suit property. The plaintiff requested the defendant to vacate the premises and as it was not done, the plaintiff issued a notice terminating the tenancy. The defendant refused the notice. Hence the plaintiff instituted the present of the suit for eviction of the defendant.

On the appearance of the defendant, a written statement was filed denying the relationship and it was also contended that other legal representatives of deceased Smt. Nazeema are not parties to the suit. The defendant denied the arrears of rent and also the quantum.

The Trial Court framed the issues and the plaintiff examined PW-1 and got marked the documents as Ex. P-1 to Ex. P-6. The defendant was examined as DW-1 and got marked Ex. D-1 to Ex. D-5 in their evidence. The Trial Court after hearing the counsel for the parties and after appreciation of the material on record, granted a decree of eviction. The judgment and decree was challenged in the appeal in R.A. No. 96/2011. The said appeal also came to be dismissed on merits. Aggrieved by the concurrent findings of the Courts below, this appeal has been filed.

Heard the Learned Counsel appearing for both the parties.

It is the contention of the Learned Counsel for the appellant that all the legal representatives of Smt. Nazeema have not been impleaded as parties to the suit and the suit presented in the present form is not maintainable in law. It is the submission of the counsel that as the defendant is doing business in the premises and on the income of the said business, the family is being maintained. He submits that at least he may be granted five years time to vacate the premises.

The Learned Counsel for the respondent has supported the judgment and decree of the Courts below and claims that the appellant is not entitled to any time to vacate the suit property.

The defendant admits that the suit property is owned by the plaintiff and he also admits that his wife Smt. Nazeema was a tenant on monthly rent of Rs.1,300/- per month.

The only specific contention that has been raised is that the notice is not served and all the legal representatives of Smt. Nazeema are not parties to the suit. To consider with regard to the service of notice, the Courts below have held that the notice sent by the plaintiff is to the address in which the defendant is residing and it is refused by the defendant. The address mentioned on the envelope is not in dispute. In the circumstance, when the defendant himself refused the notice sent by the plaintiff, it cannot be said that the service is insufficient. Both the Courts below held that there is a proper service of notice. The second contention is with regard to the legal representatives of Smt. Nazeema being not parties to the suit. In the written statement, though the defendant took up such a contention, he did not furnish the names, the age and the particulars of the children who are to be impleaded as parties to the suit. There is a vague and general contention that the suit suffers for nonjoinder of necessary parties. It is not a specific detain in law. In case if the defendant submits that some persons are necessary parties to the suit and in the present case, the defendant contends that the children are not impleaded as parties. It was his duty to furnish all the particulars and the names of the children who are to be parties to the suit. The Courts have held that it is a vague contention. On the basis of the materials placed on record, both the Courts have come to the conclusion that the plaintiff is entitled to a decree of eviction and as the appellant has not made out any such grounds or any substantial question of law for consideration, I do not feel that this appeal has any merit.

Alternatively, it is submitted by the Learned Counsel for the appellant that atleast a period of five years may be granted to vacate the suit property.

Though the Learned Counsel for the respondent submits that three months time may be granted, but it is relevant to note that the appellant has to find out non-residential premises within his Town and for that, he requires some reasonable time. Taking into consideration the facts and circumstances, the reasonable time has to be granted to vacate the suit property. In the result, the appeal is disposed of granting one year time from today to vacate the suit property. The appellant shall pay the arrears of rent if any within three months from today and go on paying the monthly rent during the said period. If the appellant fails to pay the arrears of rent within three months or commits consecutive default for two months in the payment of monthly rent, the Respondent is at liberty to execute the decree.