N.K. Mody, J:

1. Appellant by Mr. J. B. Dave with Mr. Nilesh Dave advocates.

Respondent by Mr. Sunil Jain, advocate.

Arguments heard on merits finally. Judgment dictated in Open Court.

Being aggrieved by the judgment and decree dated 22-11-2007 passed by I ADJ, Jaora, District-Ratlam in Civil Regular Appeal No. 37-A/2007 whereby the judgment and decree dated 10-8-2007 passed by I Civil Judge, Class-II, Jaora in Civil Suit No. 92-A/2002 whereby suit filed by the respondent for eviction was decreed, was maintained, the present appeal has been filed.

2. Short facts of the case are that respondent/Waqf filed a suit for eviction against the appellant alleging that the appellant is tenant in the suit accommodation @ Rs. 80/- per month vide rent-note dated 1-4-2002. It was alleged that appellant has encroached the vacant land after demolition of the western wall. It was alleged that report was lodged in that regard on 7-8-2001. Further case of the respondent was that the notice was issued on 11-10-2001 whereby tenancy was terminated under section 106 of Transfer of Property Act and the notice was duly served on appellant on 12-1-2002, thereafter, an application was submitted by the appellant wherein it was prayed that appellant be excused. It was alleged that the appellant also submitted an affidavit on 11-12-2001 wherein it was admitted that he has encroached on the shop of Dilip Kumar and it was agreed that in future appellant will comply with the terms of rent agreement. It was alleged that again on 19-1-2002 and 22-3-2002 applications were filed by the appellant with a request to return the articles which were seized from the shop of Dilip Kumar, which was returned. It was alleged that new rent- note was executed by the appellant on 1-4-2002 but on 11-8-2002 again the employees of Waqf informed that appellant has demolished the wall towards western side and has encroached the shop of Dilip Kumar. It was alleged that notice issued was neither replied nor the rent was paid from 1-7-2002. It was prayed that decree of eviction be passed.

3. The suit was contested by the appellant by filing the written statement wherein all the plaint allegations were denied. It was denied that any encroachment was made by the appellant. It was denied that the wall of western side was demolished. It was alleged that notice whereby tenancy was terminated, was not valid. It was alleged that the person who has filed the suit on behalf of respondent is not competent to file the suit. It was prayed that suit be dismissed. After framing of issues and recording of evidence learned trial Court decreed the suit filed by the respondent against which an appeal was filed which was also dismissed, hence this appeal.

4. Learned counsel for the appellant argued at length and submits that the impugned judgment and decree passed by learned Courts below are illegal, incorrect and deserves to be set aside. It is submitted that appellant was in occupation of the suit accommodation vide rent-note dated 1-4-2002 which was for a period of 11 months. It is submitted that tenancy was to expire on 28-2- 2003 while notice was issued on 11-10-2001. It is submitted that the notice issued was pre-mature and on the basis of rent agreement, no decree could have been passed against the appellant. It is submitted that the person who has filed the suit was not having the authority on behalf of respondent to file the suit. It is submitted that in the facts and circumstances of the case appeal filed by the appellant be allowed and the impugned judgment passed by learned Courts below whereby decree of eviction has been passed be set aside.

5. Learned counsel for the respondent submits that right from beginning all the time appellant was trying to encroach. It is submitted that the wall towards western side was demolished by the appellant. It is submitted that since terms and conditions of rent agreement was not followed by appellant, therefore, tenancy was terminated and suit was filed. It is submitted that the suit was filed by competent person. It is submitted that since the terms and conditions of rent agreement was violated, therefore, it cannot be said that the suit was premature. It is submitted that findings recorded by learned Courts below are the concurrent findings of fact which are based on due appreciation of evidence, which requires no interference. It is submitted that the appeal filed by the appellant be dismissed.

6. In the matter of Vithalbai (P) Ltd. v. Union Bank of India, (2005) 4 SCC 315, Hon'ble Apex Court has observed that a plea as to non-maintainability of the suit on the ground of its being premature should be promptly raised by the defendant and pressed for decision. It will equally be the responsibility of the Court to examine and promptly dispose of such a plea. The Court may reject the plaint if it does not disclose a cause of action. It may dismiss the suit with liberty to the plaintiff to file a fresh suit on its maturity. The plaintiff may himself withdraw the suit at that stage and such withdrawal would not come in the way of the plaintiff in filing the suit on its maturity. In either case, the plaintiff would not be prejudiced. The plea may not be permitted to be raised at a belated stage of the suit. If the defendant by his inaction amounting to acquiescence or waiver allows the suit to proceed ahead, then the cannot be permitted belatedly to urge such a plea as that would cause hardship, may be irreparable prejudice, to the plaintiff because of lapse of time. The Court would examine if any prejudice has been caused to the defendant or any manifest injustice would result to the defendant if the suit is to be decreed. The Court would also examine to the need of filing a fresh suit or grant a decree in the same suit inasmuch as it would not make any real difference at the stage if the suit would have to be filed again on its having matured for filing.

7. Keeping in view the aforesaid position of law and also the fact that the appellant himself violated the terms and conditions of the rent agreement, this Court is of the opinion that suit filed by the respondent is not premature in spite of the fact that the terms of tenancy was not expired. Apart from this, since tenancy was for in months and also more than 8 years has lapsed, therefore, neither appellant can be allowed to raise the plea that the suit filed by the respondent was pre-mature, nor any prejudice has caused to the appellant. On the contrary if at this stage suit is dismissed holding that suit is premature, then it will not cause only hardship but also irreparable loss to the respondent. In view of this, no illegality has been committed by learned Courts below in passing the decree of eviction against the appellant. Even otherwise also the findings recorded by learned Courts below are the concurrent findings of fact which requires no interference. Since no substantial question of law is involved

in the appeal, hence, the appeal filed by the appellant has no force and is hereby dismissed. Since the appellant is in occupation of accommodation, therefore, to save the appellant from the peril of eviction, it is made clear that the decree passed by learned Courts below against the appellant shall not be executable for a period of six months, provided that appellant furnishes an undertaking on affidavit within a period of four weeks to the effect that appellant shall vacate the suit accommodation on or before 31-12-2010 and shall also comply with the money part of the decree within the said period as mentioned above and shall deposit the current rent as per law, failing which the decree shall be executable forthwith. No order as to costs. Appeal dismissed.