Judgment:
A.S. Bopanna, J.
1. This appeal is by the third defendant in OS. No. 39/2005. The suit was filed by the first respondent herein seeking for possession of the suit schedule property. The defendants 1 and 2 therein were the tenants under the plaintiff and the third defendant had occupied the premises under the defendants 1 and 2. Accordingly, the suit was filed seeking ejectment of all the defendants from the suit schedule property and for possession of the suit schedule property to the benefit of the plaintiff. The defendants had opposed the suit. The trial Court had framed as many as four issues initially and an additional issue thereafter. The contention put for by the appellant herein who was the third defendant before the trial Court was considered while adverting td additional issue No. 1 which had been framed by the trial Court. The contention in that regard was that despite the third defendant being in possession of the suit schedule property and the plaintiff being aware of the same, had not issued any notice terminating the tenancy and therefore, the suit is liable to be dismissed against the third defendant. The contention put forth by the third defendant has been negatived by the trial Court. In any event, the trial Court has also noticed that the notice issued has also been sent to the third defendant by way of intimation. In any event, the plaintiff had not recognised the third defendant as a tenant. Ultimately, the trial Court has decreed the suit in favour of the plaintiff by its judgment and decree dated 2.4.2007. The third defendant was before the lower appellate Court in RA. No. 179/2007, while the defendants 1 and 2 were before the lower appellate Court in RA. No. 213/2007. The lower appellate Court has affirmed the judgment and decree rendered by the trial Court and accordingly, both the appeals have been dismissed by the lower appellate Court by its judgment dated 11.12.2008. The third defendant alone is before this Court in this second appeal as against the judgments and decree passed in OS.No.39/2005 and affirmed in RA. No. 179/2007.
2. The learned Counsel for the appellant had urged the very same contentions which were urged before the lower appellate Court, mainly with regard to the contention relating to the quit notice not being issued to the third defendant and also contending that the suit schedule property consists of two portions and each is measuring less than 14 square meters and therefore, the suit itself was not maintainable and a petition as contemplated under the Rent Act should have been instituted. While noticing the contentions put forth by the learned Counsel for the appellant this Court has noticed the judgments rendered by the trial Court as well as the lower appellate Court. A perusal of the judgments would indicate that the trial Court as well at the lower appellate Court has adverted to the evidence available before it and on noticing the same the Courts below have come to their conclusion. Therefore, at the outset, the reasoning adapted by the Courts below does not indicate any perversity so as to call for interference. With regard to the contention put forth by the learned Counsel for the appellant that a notice had not been issued to the third defendant, I am of the view that the Courts below have properly considered this aspect end in any event, on noticing the said contention a perusal of the notice would indicate that the third defendant had at no point of time been recognised as tenant but, however, since the defendants 1 and 2 were put in possession a proper quit notice was issued to defendants 1 and 2 and an intimation to vacate had such made by sending a copy of such notice to the third defendant. With regard to the size of the building, it is noticed that even in the notice the common boundary had been given to the said shop premises and the same in any event would measure mere than 14 square meters and therefore, the suit was perfectly maintainable. In that light, the contention put forth by the learned Counsel not being acceptable to the Court and since this Court did not find any substantial question of law for consideration it was made known to the learned Counsel for the appellant that the appeal was liable to be dismissed and at that point on the last date of hearing the learned Counsel for the appellant sought time to vacate the premises.
3. The learned Counsel for the first respondent however consented for grant of time subject to the condition that the third defendant would not press the contentions urged in this appeal any further. This aspect of the matter was also made clear to the learned Counsel for the appellant that reasonable time for vacating the premises would be granted by this Court after obtaining consent from the first respondent subject to the appellant not pressing the contentions raised in this appeal any further. Hence it was made clear that such time would be granted subject to filing an affidavit before this Court agreeing for the time to vacate the premises and filing of such affidavit would be construed as the appellant accepting the time to be granted by this Court for vacating the premises and would also imply that the contentions raised would not be pressed further. Accordingly, the appeal was adjourned and today, the learned Counsel for the appellant has filed the affidavit sworn to by the appellant herein. The contents of the affidavit read as hereunder.
I, Sri M.A. Shantharaj, s/o Late M.B. Anantharajaiah, Major, R/a. M/s. Anantharajaiah & Sons, Paint and Hardware Merchant, Adjacent to M.V. Nemirajaiah Paint Shop, #15/2-3, New No. 347/2, Ashoka Road, Lashkar Mohalla, Mysore, now at Bangalore do hereby solemnly affirm and state on oath as follows:
1. I am the appellant in the above appeal and I am aware of the facts of the case.
2. I state that the above appeal is filed questioning the judgment and decree dated 11.12.2008 passed in RA.No.179/2007 passed by the Court of the I Addl. Civil Judge (Sr. Dn) & CJM at Mysore in dismissing the appeal and confirming the judgment and decree passed in OS. No. 39/2005 passed by the Court of the IV Addl. I Civil Judge (Jr.Dn) at Mysore.
3. I state that I nave been carrying on paint business since several years and before that my father was carrying on the business in the schedule premises. I have gained name and reputation in our business and if I am thrown away - from the premises I will suffer great hardship
4. I state that I will hand over the vacant possession of the schedule premises if nine months time is granted to me to search and shift my business to alternative premises. I state that I will voluntarily hand over vacant possession of the premises and will not drive the respondent No. 1 to executing court if nine months time is granted to me.
Wherefore it is prayed that this Hon'ble Court may be pleased to take this affidavit on record and grant nine months time to me to vacate and hand over the vacant possession of the schedule premises to the 1st respondent in the interest of justice and equity.
4. A perusal of the affidavit would indicate that the appellant has not reserved any liberties but has categorically stated that he would vacate the premises if nine months time is granted to him to vacate the premises and in such event, he would voluntarily vacate and hand over the vacant possession of the suit schedule premises to the first respondent. The said undertaking by way of affidavit is therefore accepted and taken on record ds an absolute undertaking to vacate the schedule premises within a period of nine months without agitating the matter any further. Therefore, the time sought for by the appellant is liable to be granted.
5. Accordingly, by noticing that the appellant has filed an unconditional affidavit implying that the judgments of the Courts below have been accepted by the appellant without agitating the same further, the appellant is granted nine months time from today to vacate and hand over vacant posse3sion of the schedule premises to the first respondent. The non-pressing of the contentions is recorded and the appeal is therefore dismissed on that count affirming the judgments of the Courts below. In the peculiar circumstance of the case the parties to bear their own costs.