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CASE NO.: Writ Petition (civil)  1606 of 2008

PETITIONER: Jaswant Kumar Vyas

RESPONDENT: Krishna Dev Sharma

DATE OF JUDGMENT: 22/02/2008

BENCH: TARUN CHATTERJEE & HARJIT SINGH BEDI

JUDGMENT: JUDGMENT O R D E R

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

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  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."

  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

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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  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.