S K TRADING COMPANY Vs. BIBI SHAHNAJ BANO

JUDGEMENT

(1.) By the present Second Appeal under Section 100 of the Code of Civil Procedure (for short the Code) the defendant-appellant has sought the relief for setting aside the decree dated 10-12-1991 of the learned 9th Additional District Judge, Patna, dismissing the appeal of the defendant and decree dated 30-3-1988 passed by the Subordinate Judge-I, Patna decreeing the suit for evicting directing the defendant-appellant to give vacant possession of the suit land within two months from the date of decree after removal all structures constructed by the defendant over the same and directing the aefendant-appellant to pay arrears of rent claimed in Schedule-II.

(2.) The plaintiff-respondent has filed the suit with the averments that the plaintiff was the owner land lady of land measuring 65-6" on North, 63'10" on Sough. 85' on East and 88' on West bearing Municipal Survey No. 789 Plot No. 1, Holding No. 249/181/C, Circle No 9, ward No. 2 situate at Moballa Exhibition Road, P. S. Kotwali (Gandhi Maidan) Patna. The defendant-appellant which is a firm, through Sri Subodh Kumar Jhunjhunwala (a partner of the firm) took the said piece of land on lease for a fixed period of five years commencing from 1st February, 1972 and ending on 31st" January, 1977 on a monthly rental of Rs. 4,00/- through unregistered deed dated 16-2-1972 The rent was payable on the 7th day of the succeeding month. The defendant the firm occupied the suit premises on 1-1-1972 and constructed a temporary godown. As per the terms of agreement, in case of failure of payment of rent by the date fixed, the defendant was to pay interest at the rate of 1% per month The plaintiff would have also right to terminate the tenancy and take direct possession of the suit premises. The defendant was to pay municipal tax and on termination of tenancy the defendant would give vacant possession to the plaintiff, after removing all materials and fixtures, in case of default the defendant shall be liable for damages Rs. 30/- per day till the possession was delivered to the plaintiff. The term of lease expired but the defendant continued in possession. Thereafter the plaintiff sent a registered letter dated 12-1-1977 to the defendant to give vacant possessi on to the plaintiff. The defendant requested the plaintiff for fresh lease on fresh rate of rent and the rent was enhanced to Rs. 550/- per month. But thereafter the defendant defaulted in payment of rent. Then the defendant by letter dated 7-2-79 was directed to pay arrears of rent. The defendant sent a letter to the plaintiff narrating the circumstances under which he could not pay the rent. Another letter dated 31-1-79, however, was served on the defendant. Thereafter the defendant issued a cheque on 16th April, 1979 for Rs. 4,150/- and the other cheque dated 17th April, 1979 for Rs. 3,000/-. Since January, 1980 the defendant failed to payrent The plaintiff served a registered notice dated 7th August, 1982 through an Advocate terminating the tenancy of the defendant calling upon to give possession to the plaintiff on 1st September. 1982 after removing the constructions That notice was, however, served on the defendant on 14-8-1982 hut he neither paid rent nor vacated the premises. Another notice dated 2nd March. 1963 was sent to the defendant on expiry of 31st day of March. 1983 and the defendant was called upon to vacate the said premises and give the vacant possession to the plaintiff afer removing the structures.

(3.) The suit was contested by the defendant appellant denving the plaint allegation and alleging that the suit was barred by limitation and also barred by the provisions of Specific Relief Act. After expiry of agreement dated 16-2-1972 the defendant continued on the land on the request of the plaintiff. The mode of payment was not on every tucceding month by 7th Normally lump sum amount was raid to the plaintiff on 30-6-1982 defendant paid Rs. 10,000/- to the plaintiff bv bank draft and again on 30-1-1984 Rs 15,000/- by bank draft to the plaintiff A sum of Rs 12,000/- was already lying as advance to the account of the plaintiff Apart from that the plaintiff had taken one refrigerator from the defendant at a cost of Rs 5500/- which amount was also not paid A sum of Rs 42,600/- (in total) was paid to the plaintiff towaads rent adjustment from 1st Jund, 1982 onwards The said notice terminating the tenancy was not legally served on the defendant- appellant, the firm, but on servant of the firm who has no authority to receive it.