Judgment:
A.S. Bopanna, J.
1. The, Appellant herein is the defendant in O.S. No. 225/2002. The mitt in question was filed by the plaintiff seeking the possession of the suit schedule property. The first defendant was the tenant in respect of the suit schedule premises. The trial Court after considering the rival contentions has decreed the suit by its judgment and decree dated 5.6.2006. The first defendant was before the lower Appellate Court in RA No. 57/2006. The flower Appellate Court by its judgment dated 16.7.2008 has affirmed the judgment of the trial Court and has dismissed the appeal. The first defendant is therefore before this Court in this Appeal against the concurrent judgments rendered by the Courts below.
2. Heard the learned Counsel appearing for the parties find perused the appeal papers.
3. The case of the plaintiff before the trial Court is that he is the absolute owner of the 'A' schedule properties bearing Nos. 22 and 24 and the same was occupied by the first defendant on a monthly 7rotal of Rs. 250/-. Later the rent was enhanced to Rs. 500/- by mutual consent in the year 1994. The allegation of the plaintiff was that the first defendant had subleased the said premises to the second defendant without the consent, of the plaintiff. Initially, the eviction proceedings under the Rent Control Act had been initiated and on repeal, the plaintiff by notice dated 28.7.2002 terminated the tenancy with effect from 31.8.2002. Since the defendants tailed to vacate the schedule premises, the suit was instituted.
4. The defendants by their written statement though admitted the first defendant as a tenant, had disputed the subletting of the premises. It was eon fended that the suit was liable to be dismissed since the quit notice which was issued was not in accordance with the provisions of Section 106 of the Transfer of Property Act inasmuch as 15 days notice bad not been given. Therefore the dismissal of the suit was sought for.
5. The trial Court noticing the rival contentions framed as many as 5 issues for its consideration which read as hereunder:
i) Whether the plaintiff proves that tenancy of suit schedule premises commences from 1st week of very succeeding month?
ii) Whether the plaintiff proves that tenancy of suit premises validly terminated under registered notice dated 31.8.2002?
iii) Whether the plaintiff proves that 2nd defendant is the sub-tenant of the defendant?
iv) Whether plaintiff is entitled for the decree prayed in the suit?
v) What order or decree?
6. In order to discharge the burden cast on the parties, the evidence was tendered and the power of attorney holder of the plaintiff was examined as PW. 1 and Exhs. P1 to 5 were marked and the first defendant examined himself as DW.1.
7. Though the issue by which the burden had been cast on the plaintiff to prove that the first defendant had subleased the property was held against the plaintiff, the trial Court was of the view that the plaintiff had validly terminated the tenancy and accordingly had proceeded to decree the suit.
8. A perusal of the judgment passed by the trial Court would indicate that the trial Court has noticed the oral as well as the documentary evidence tendered before it in its correct perspective. Since the question which had been raised by the defendant was with regard to the quit notice not being in compliance with Section 106 of the Transfer of property Act, the trial Court had noticed that the quit notice which was marked as Ex.P4 was served on the defendant on 30.7.2002. The reply notice dated 30.8.2002 which was at Ex.P5 was also noticed and on being satisfied that the plain tiff had appropriately terminated the tenancy with effect from 31.8.2002 the trial Court was of the view that appropriate notice had been issued and therefore proceeded to decree the suit.
9. As against the said judgment when the first defendant, was before the Lower Appellate Court, the Lower Appellate Court has noticed that the only issue for consideration in the appeal was with regard In the validity of the quit notion. White re-appreciating the evidence, in fact the Lower Appellate Court has referred to the document at Ex.P4 viz., the notice dated 28.7.9009 issued by the plaintiff to the first defendant. By the said notice, the tenancy had been terminated with effect from 31.8.2002. Therefore, on noticing the said two dates and also the document at Ex.P4 viz., the postal acknowledgment for service of notice and Ex.P5 reply notice which had been issued by the defendant, the Flower Appellate Court had also come to the conclusion that the: notice issued is in accordance with the provisions contained under Section 106 of the Transfer of Property Act. Since the said question is the only purported substantial question of law which is projected by the appellant, on considering the evidence available on record, I am of the opinion that the trial Court, on noticing the evidence has arrived at a finding of fact with regard to the legality of notice which had been issued based the dates indicated therein to come to the conclusion that the notice as contemplated under law had been issued. Therefore, when the Courts below have come In such a finding of feet, this Court cannot interfere with the same.
10. One other aspect, of the matter which also requires to he noticed is that the said provision viz. Section 106 of TP Act has since been amended and in any event, since the suit has been filed by the plaintiff on 20.9.2002, much after the notice, the appellant cannot succeed in the present appeal. At this stage, the teamed Counsel for the defendants would submit that if this Court is not inclined to accept the contention on merits, reasonable time may be granted to the defendants to vacate the premises. The learned Counsel for the plaintiff/respondent opposes grant of time except for some reasonable time to make alternate arrangement. While granting time, this Court will also have to keep in view the length of litigation and the nature of business carried on in the property. It is no doubt true that the suit was instituted in the year 2002 and though the order of ejectment had been passed, the appellant had enjoyed the benefit of stay before the Lower Appellate Court, Further it is not in dispute that the appellant is running a hotel in the suit schedule premises and being a commercial venture, the appellant would have to make alternate arrangement. As such considering all these aspects of the matter, I am of the view that it would he reasonable to giant time of six months to the appellant to vacate and handover vacant possession of the schedule premises subject to the appellant filing an undertaking to the Court within a period of tour weeks from the date of receipt of a copy of this order wherein the appellant shall undertake that he shall voluntarily vacate the premise on or before the end of six months and shall not underlet, sublet or damage the premises and shall continue to pay the admitted rent during the period for which the time has been granted. If such undertaking is not filed by the appellant within the time stipulated, the benefit of the time granted by this Court shall not enure to the appellant and it would be open for the respondents to execute the order forthwith.
11. Accordingly, the appeal being devoid of merits is disposed of subject to the time grunted in the manner stated above. No order as to costs.