NON-REPORTABLE

IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO.1606 OF 2008 (Arising out of SLP (C) No.5140 of 2008 CC 2618 of 2008 )

Jaswant Kumar Vyas                                          …Appellant

Versus Krishna Dev Sharma                             …Respondent

O R D E R 1. Delay condoned.

2. Leave granted.

3. This appeal is filed by way of a special leave petition against the

final  judgment  and  order  of  the  High  Court  of  Andhra  Pradesh  at

Hyderabad dated 25th of October, 2007 in Second Appeal No. 539 of

2006  whereby  a  learned  Judge  of  the  High  Court  had  dismissed  the

second  appeal  filed  by  the  appellant  and  affirmed  the  orders  of  the

courts below.  

4. A suit for eviction of the appellant from the suit  premises was

instituted  by  the  plaintiff/respondent  which  was  decreed  by  the  trial

court  and  the  decision  of  the  trial  court  was  affirmed  by  the  first

appellate  court  and  finally,  the  second  appeal  of  the  appellant  was

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dismissed. Before the High court in the second appeal, the only question

that was raised was whether in the present case, notice under Section

106 of the Transfer of Property Act should be restricted to 6 months or

1 month. All the three courts below held that tenancy was from month

to month and  accordingly,  the  second appeal  was  dismissed  and  the

orders of the courts below were affirmed. This special leave petition has

now  been  filed  against  the  aforesaid  judgment  in  second  appeal

affirming the judgments of the courts below in respect of which leave

has already been granted.

5. Mr.  A.  Subba  Rao,  the  learned  counsel  appearing  for  the

appellant  restricted his  arguments to the  order  passed by the learned

single Judge, which is as follows: -

“Having regard to the facts and circumstances of the case, the

appellant  is  granted  time  up  to  the  end  of  May  2008,  on

condition that he furnishes an undertaking before the trial court,

within four weeks from today, to the effect that he will put the

respondent herein in vacant possession and continues to pay the

rents regularly. In default, apart from being liable to be evicted,

the appellant shall be liable to pay the damages at the rate of

Rs. 10,000/- per month beyond 31.05.2008.”

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6.  According to Mr. Rao, the High Court was in error to direct the

appellant to pay damages at the rate of Rs.10,000/- per month if the

appellant continues to remain in possession of the suit premises after

31st of May, 2008 which was granted by the High Court in the impugned

judgment.  Mr.  Nikilesh Ramachandran,  learned counsel  appearing for

the respondent, conceded that this direction of the High Court was in

fact  not  justified.   Considering  the  fact  that  proceedings  for  mesne

profit under Order 20 Rule 12 of the Code of Civil Procedure shall be

proceeded with in accordance with law and in view of the concession of

learned counsel for the respondent, direction to pay damages at the rate

of  Rs.10,000/-  per  month,  if  the  appellant  continues  to  remain  in

possession after 31st of May, 2008 must be set aside. Therefore, we set

aside the portion to the effect that the appellant shall be liable to pay

damages at the rate of Rs.10,000/- per month if he continues to remain

in possession of the suit premises after 31st of May, 2008.

7. For the reasons aforesaid the appeal is disposed of by deleting the

portion as quoted hereinabove.   However, the appellant is granted

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nine months time from today to vacate the suit premises on payment

of Rs.2,000/- per month subject to filing of usual undertaking in this

Court within a period of four weeks from this date.

………………………..J. [TARUN CHATTERJEE]

NEW DELHI                                …………………………J. FEBRUARY 22, 2008                          [HARJIT SINGH BEDI]

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