Prayer
Second Appeal is filed under Section 100 of Civil Procedure Code to set aside the judgment and decree dated 14.12.2005 made in A.S No. 182 of 2005 on the file of the 1st Additional Sub Court, Madurai confirming the judgment and decree dated 17.2.2004 made in O.S No. 593 of 1995 on the file of the Principal District Munsif, Madurai Town.
:JUDGMENT
The Appellant/Second Defendant has focused the present Second Appeal before this Court as against the Judgment and Decree dated 14.12.2005 in A.S No. 182 of 2005 passed by the Learned 1 Additional Sub Judge, Madurai.
2. The First Appellate Court, viz, the 1 Additional Sub Judge, Madurai, while passing the Judgment in A.S No. 182 of 2005 dated 14.12.2005 has, among other things, observed that “The lease period has expired on 7.3.1994 as per Ex.A.2 Lawyer's Notice. So the receipt of rent after filing of the suit would not amount to assent for continuance of lease. Apart from this, D2 has not taken any steps to continue the tenancy. Now the earlier tenancy has expired and no tenancy agreement was entered into between the Second Defendant and the Plaintiff, after the expiry of the earlier tenancy. Moreover, it is very clear that the defendants are irregular in payment of rent. So the decree passed in favour of the plaintiff, allowing the claim of ejectment is correct” and resultantly, dismissed the appeal thereby, confirming the Judgment and decree of the trial court in O.S No. 593 of 1995 dated 17.2.2004
3. Being dissatisfied with the Judgment and Decree of the First Appellate Court in A.S No. 182 of 2005 dated 14.12.2005, the Appellant/Second Defendant has projected the Second Appeal before this Court, as an aggrieved person.
4. Earlier, the trial court, while passing judgment in O.S No. 593 of 1995 dated 17.2.2004, has inter alia held that the defendant has paid the rent arrears after filing of the suit and further he has also paid the damages and therefore, the Second Defendant is not required to pay the amounts claimed and resultantly, decreed the suit in part by granting the relief of possession and dismissed the suit in respect of arrears of rent and damages. However, the trial court granted two months time to the Appellant/Defendant to vacate and hand over the possession of the suit property to the Respondent/Plaintiff.
5. At the time of admission of the Second Appeal, this Court has framed the following substantial question of Law for rumination:
“Whether Notice under Section 106 of Transfer of Property Act is valid or invalid and how there be a decree without going into the validity of the notice”
6. The Contentions, Discussions and Finding on point:-
The Learned Counsel for the Appellant/Second Defendant submits that both the courts have committed an error in coming to the conclusion that the lease period has expired on 7.3.1994 and that the rent receipt has been issued subsequent to the suit would not amount to assent for continuation of the Lease.
7. Further, the Learned Counsel for Appellant/Second Defendant contends that both the courts have omitted to discuss whether the notice issued by the Respondent/Plaintiff to the First Defendant terminating the tenancy is in accordance with law or otherwise.
8. That apart, it is the plea of the Appellant/Second Defendant that the suit filed by the Respondent/Plaintiff is one for ejectment and arrears of rent and therefore, it is the fundamental duty of the Respondent/Plaintiff to prove his case for ejectment in accordance with law. But, these aspects have not been taken into consideration by the trial court as well as the First Appellate Court.
9. Conversely, it is the submission of the Learned Counsel for the Respondent/Plaintiff that the Respondent/Plaintiff is a temple and it being a religious institution exempted from the purview of Tamilnadu Buildings (Lease and Rent Control) Act, 1960 and the Appellant/Second Defendant and his deceased father(First Defendant) being in arrears of rent for 24 months from April 1992 to March 1994 and that the Respondent/Plaintiff has rightly filed the suit requiring the Second defendant's father viz, First Defendant to vacate and hand over the peaceful possession of the suit property. Subsequent to the death of the father of the Appellant/Second Defendant(First Defendant), the Second Defendant/Appellant has been arrayed as a party to the proceedings.
10. The trial court, on an appreciation of oral and documentary evidence available on record, has come to a clear and categorical conclusion that the arrears of rent have been paid subsequent to the filing of the suit and therefore, the Appellant/Second Defendant need not pay the amount claimed in the plaint and consequently, passed a decree for possession alone, which need not be disturbed by this Court at this distant point of time.
11. For better and fuller appreciation of merits of the case, this Court opines that the oral evidence of P.W.1, P.W.2 and D.W.1 play a significant role and they are referred to usefully.
12. P.W.1 (Temple Clerk) has deposed in his evidence that the suit property belongs to the temple and initially, the First Defendant has been the tenant and since pending suit he died his heir has been added as a party to the case and originally, the monthly rent of Rs. 203/-(Rupees two hundred and three only) is to be paid on 5th of every English Calender month and the First Defendant (father of the Appellant/Second Defendant), during his life time, has not paid the rent properly and in spite of numerous demands made in person, he has not paid the same and there has been arrears of rent from March 1991 to April 1994.
13. P.W.1 proceeds to add in his evidence that the Respondent/Plaintiff has issued a notice Ex.A.1 and the same has been returned as ‘unserved’, which is marked as Ex.A2 and therefore, another Lawyer's Notice Ex.A.3 dated 7.3.1994 has been issued, and in the said notice, the rental arrears amount of Rs. 7,131/- (Rupees seven thousand one hundred and thirty one only) for 36 months has been made mention of.
14. Continuing further, P.W.1 in his evidence has stated that the temple used to issue receipts immediately when the rent amount has been paid and it is incorrect to state that no receipt is being issued, as contended by the Defendant and for Ex.A.3 Lawyer's Notice dated 7.3.1994 no reply has been given and that a sum of Rs. 2,500/-(Rupees two thousand and five hundred only) has been paid, which has been received without prejudice to the right of the suit and that the rental agreement has not been renewed.
15. P.W.2 (Rent Collector) in his evidence has stated that the monthly rent for the suit property is Rs. 203/-(Rupees two hundred and three only) and that he has worked as Rent Collector for the temple during the year 1994, 1995 and that the First Defendant has not paid the rent properly and he used to go for rent collection daily and therefore, it is incorrect to say that he has not gone for rent collection properly.
16. P.W.2 goes on to add in his evidence that a tenant has to pay the rent properly and if the rent amount has been received then such an amount cannot be kept in one's hand and immediately, the said amount has to be paid in the temple treasury.
17. The evidence of P.W.2 is to the effect that the Appellant/Second Defendant's father (First Defendant-since deceased) has paid a sum of Rs. 2500/- (Rupees two thousand and five hundred only) as rent and the said amount has been received by the Respondent/Temple without prejudice to the rights. Subsequently, the Appellant/Second Defendant's father First Defendant has also paid the amount demanded in the plaint and those amounts have also been received by the Temple/Respondent without prejudice to his right and after the death of the First Defendant, the Appellant/Second Defendant(Son of the First Defendant) is conducting the shop and the Appellant/Second Defendant is continuing to pay the rent in the name of the First Defendant his father and it is incorrect to state that no action has been taken against the Appellant/Second Defendant lawfully.
18. D.W.1 (Father of the Appellant/Second Defendant), during his life time, has deposed that initially his father has taken the suit property for rent and that the monthly rent for the suit property has been Rs. 175/-(Rupees one hundred and seventy five only) and later, the rent has been increased and presently, the monthly rent is Rs. 203/-(Rupees two hundred and three only) and even during the life time of his father, he has been looking after the suit shop and doing business and that the rent will be received once in three or four months and after receipt of the rental amounts, receipt will be issued three or four days later, which has been the practice and the rent for the period from 1991 March till 1994 April mentioned in the plaint has been paid and his father has expired during the year 1999 and after that, he has been properly paying the monthly rent.
19. D.W.1 (In his cross examination) has tacitly admitted that the arrears of monthly rent mentioned in the plaint is correct and that the suit property is situated at Madurai North Veli Street and he and his father used to pay monthly rent once in three months or two months and the Respondent/Plaintiff/Temple persons used to go and received the rent and they used to issue receipt for the rent received by them and that his father has been in arrears of rent and he has paid the rental arrears amount and he has not produced the receipts for payment of the said arrears.
20. At this stage, this Court narratively points out that the Respondent/Plaintiff, in the plaint, has averred that the First Defendant viz, the Appellant/Second Defendant's father took the suit schedule property on lease agreeing to pay Rs. 203/-(Rupees two hundred and three only) as rent and that the rent is payable by 5 of succeeding month as per English calendar and his tenancy is a oral one.
21. Also, in the plaint the Respondent/Plaintiff has averred that the temple sent a notice by Registered Post with acknowledgment due on 1.11.1993 to the First Defendant (Appellant/Second Defendant's father) that he is in huge rental arrears and the said notice has been returned to the Respondent/Plaintiff on 10.11.1993 with endorsement that ‘not found’. Therefore, the Respondent/Plaintiff has been proposed to issue a legal notice on 7.3.1994 to the first defendant terminating his tenancy by 31 st March 1994 as regards the suit property. As per the legal notice issued by the Respondent/Plaintiff, the First Defendant (since deceased and father of Appellant/Second Defendant) has been in rental arrears amounting to Rs. 7,131/-(Rupees seven thousand one hundred and thirty one only) pertaining to the period from March 1991 to February 1994 for a period of 36 months.
22. In the written statement, the Appellant/Second Defendant's father First Defendant(since deceased) has stated that he is a tenant on a monthly rent of Rs. 125/- (Rupees one hundred and twenty five only) at the inception of tenancy, which has been increased suddenly and the present rent is Rs. 203/- (Rupees two hundred and three only).
23. Moreover, the Appellant/Second Defendant's father(First Defendant - since deceased) in the written statement has denied the factum of arrears of rent for 36 months amounting to Rs. 7131/-(Rupees seven thousand one hundred and thirty one only). To avoid legal complication, the First Defendant has paid once again the total claim made by the Respondent/Plaintiff. There is no arrears of rent payable to Respondent/Plaintiff by the First Defendant.
24. A specific case of the Respondent/Plaintiff is that the First Defendant has not paid the rent pertaining to the schedule property and he has to be evicted. Further more, the tenancy has been terminated by issuance of legal notice dated 7.3.1994 and that the First Defendant has been required to hand over possession of the suit property on or before 1.4.1994 he has not vacated the suit property nor paid the rental arrears. Therefore, the Respondent/Plaintiff has laid the present suit.
25. After termination of the tenancy, a sum of Rs. 2500/-(Rupees two thousand and five hundred only) has been received by the Respondent/Plaintiff Temple from the First Defendant. The suit has been filed by the Respondent/Plaintiff for the relief of directing the Appellant/Second Defendant to vacate and hand over the peaceful possession of the suit property to the Respondent/Temple, directing the Appellant/Second Defendant to pay a sum of Rs. 4834.50 (Rupees four thousand eight hundred and thirty four and fifty paise only) being the rental arrears from April 1992 till March 1994, directing the Appellant/Second Defendant to pay past mesne profits from 1.4.1994 to 31.1.1995 amounting to Rs. 2030/-(Rupees two thousand and thirty only) and for directing the Appellant/Second Defendant to pay the arrears of rent from the date of plaint till the date of delivery of the possession of the suit property to the Respondent/Plaintiff, the amount to be determined as per Order 20 Rule 12 of C.P.C
26. The Learned Counsel for the Respondent/Plaintiff submits that Ex.A.3 the Respondent/Plaintiff's Lawyer's Notice dated 7.3.1994 has been issued to the Appellant/Second Defendant's father viz, the First Defendant(since deceased) and in the said notice, the Respondent/Temple has candidly made mention of that the Appellant/Second Defendant's father viz, the First Defendant has been in rental arrears of Rs. 7,131/-(Rupees seven thousand one hundred and thirty one only) and that he has not paid the same in spite of various requests made by the temple staff and as such, he has committed willfull default in payment of rent in respect of the schedule property and that the tenancy in regard to the schedule mentioned property has been terminated by the Respondent/Plaintiff on 31.3.1994 and further a request has been made to the Appellant/Second Defendant's father viz, the First Defendant to hand over the vacant and peaceful possession of the schedule property on or before 1.4.1994 etc.
27. The Learned Counsel for the Respondent/Plaintiff strenuously contends that Ex.A.3 the Respondent/Plaintiff's Lawyer's notice dated 7.3.1994 has been addressed to the Appellant/Second Defendant's father viz, the First Defendant and this Ex.A.3 notice has been issued in conformity that Section 106 of Transfer of Property Act 1882 and the said notice cannot be found fault with in any manner by any one whatsoever.
28. The Learned Counsel for the Respondent/Plaintiff cites the decision of this Court in Thanapal v. Sakunthala reported in 2007 (1) CTC 674 at page No. 676 whereby and where under in paragraph No. 8 it is observed as follows:
8. After hearing the submissions of the Learned Counsel on either side, the Court is of the considered opinion that it is a fit case where decree should have been granted. It is not in dispute that the plaintiff is the owner of the property. The defendant has executed Ex.A.5, lease deed, dated 25.7.1989 It is also clearly mentioned in Ex.A.5 that the monthly rental of Rs. 3/- is payable annually at the rate of Rs. 36/-. The rental has been paid by the defendant and it has been receive so. It is true, Ex.A5 is not a registered one. But, at the same time, from the decision cited above, it is clearly found that even though in a deed, which remains unregistered, the lease amount is payable annually, if it is not for the purpose of agricultural or manufacturing, it should be construed only as monthly lease. Under these circumstances, applying the said principle, the Court feels no impediment to hold that the notice issued by the plaintiff to the defendant under Section 106 of the Transfer of Property Act giving 15 days, time is valid in the eye of law. Both the Courts below have negatived the relief only on the question of notice issued by the plaintiff under Section 106 of the Act. Applying the notice issued is valid in the eye of law and hence, there is no impediment in granting the relief to the plaintiff. Accordingly, the judgments of both the Courts below are set aside. This Second Appeal is allowed. No costs. Consequently, connected C.M.P is closed.
29. He also seeks in aid of the decision of this Court in Aravindharaj Adhithan v. R. Perumal reported in 2011 (3) CTC 31 in paragraph Nos. 10 and 11 it is laid down as follows:
10. The Learned Counsel for the Respondent/Plaintiff, at this juncture, appropriately and appositely, correctly and convincingly would place reliance on the amended Section 106 of the Transfer of Property Act and submit that even though in the termination notice only 10 days time was granted for the Defendant to vacate the premises, in fact, the suit was filed long after the statutory period of 15 days, so to say, the notice was admitted received on 3.2.2006 and the Plaint was presented only on 21.2.2006 and in such a case, only after a lapse of statutory 15 days time as contemplated under Section 106 of the Transfer of Property Act, the suit was instituted and even if the notice was treated as a defective one, it got cured by virtue of the suit itself having been filed after 15 days as contemplated under Section 106 of the T.P Act.
11. Indubitably and indisputably, unarguably and unassailably, the tenancy itself was for running a hardware shop and it was not one for agricultural or manufacturing purpose and in such a case only 15 days' statutory notice was contemplated and in view of the Suit itself having been filed after the receipt of the notice by the Plaintiff, the question of setting aside the judgments of the Courts below does not arise and in my opinion, no question of law much less substantial question of law is involved in this case.
30. Section 106 of the Transfer of Property Act reads hereunder:-
106. Duration of certain leases in absence of written contract or local usage: (1) In the absence of a contract or local law or usage to the contrary, a lease of immovable property for agricultural or manufacturing purposes shall be deemed to be a lease from year to year, terminable, on the part of either lessor or lessee, by six month's notice; and a lease of immovable property for any other month's notice; and a lease of immovable property for any other purpose shall be deemed to be a lease from month to month, terminable, on the part of either lessor or lessee, by fifteen days' notice.
(2) Notwithstanding anything contained in other law for the time being in force, the period mentioned in sub-section (1) shall commence from the date of receipt of notice.
(3) A notice under sub-section (1) shall not be deemed to be invalid merely because the period mentioned therein falls short of the period specified under that sub-section, where a suit or proceeding is filed after the expiry of the period mentioned in that sub-section.
(4) Every notice under sub-section(1) must be in writing, signed by or on behalf of the person giving it, and either be sent by post to the party who is intended to be bound by it or be tendered or delivered personally to such party, or to one of his family or servants at his residence, or (if such tender or delivery is not practicable) affixed to a conspicuous part of the property.
31. A reading of the ingredients of Section 106 of Transfer of Property Act clearly point out that it lays down a Rule of construction which is to be applied when the individuals have not specifically agreed upon as to whether the lease is yearly or monthly. If the parties by a contract have indicated the duration of Lease, then Section 106 of Transfer of Property Act 1882 will have no application whatsoever, as opined by this Court. The existence of a valid lease is a condition precedent to invoke the Rule of construction envisaged as per Section 106 of the Transfer of Property Act.
32. This Court, worth recalls the decision of Ranee Sonar Kowar v. Mirza Himmut Bahadoor (1876 ILR 1 Cal 391) wherein, it is held that where the owner recognises the right of a person in possession by accepting rent from the latter, the tenancy created as such could be terminated by a notice to quit. It is not out of place for this Court to make mention of Section 106 of Transfer of Property Act raises a fiction and indicates a deeming provision in respect of leases which do not fall within the ambit of Section 107 of Transfer of Property Act. The presumption as per Section 106 of Transfer of Property Act is that the lease is from year to year or month to month, according to the nature of the property, and is terminable by six months or 15 days notice as the case may be. A stipulation that the rent will be payable monthly will raise a presumption that the tenancy is from month to month. However, no question of such presumption can arise where rent has not been accepted. A term requiring the Lessee to grant a month notice will not affect the right of the lessor to terminate the lease on 15 days notice as per Section 106 of Transfer of Property Act, in the considered opinion of this Court. Notice to quit as per Section 106 of Transfer of Property Act is a technical Rule. A liberal construction will help to deliver substantial justice to the cause. The court should construe the quit notice, in such a way that it should not be defeated by inaccuracies in the language of the notice especially in matters of description of the premises, the name of the tenant or the name of the landlord or the date of expiry of the notice. Notice is the first step in the process of litigation when the cause of action is complete. A statutory notice although essential provisionally for a valid suit does not make it a part of the cause of action in the suit itself. In a suit for ejectment where the landlord obtains a decree for ejectment, it amounts to the termination of Tenancy. Therefore, notice under Section 106 of Transfer of Property Act is not necessary as per decision in Shri Ram Singh… v. Shri Nathi Lal & Ors.… AIR 1983 Del 114.
33. Whether the notice issued as per ingredients of Section 106 of Transfer of Property Act and other incidental matters are mixed questions of fact and law.
34. In Sidebotham v. Holland (1895) 1 Q.B 378 Lord Justice Lindley observed that ‘the validity of the notice to quit’ ought not to turn on the splitting of a straw. It must not be read in a hyper critical manner nor must its interpretation by affected by pedagogic pedantism or over refined subtlety, but it must be construed in a common sense way.
35. The words ‘at his residence’ in Section 106 of Transfer of Property Act relate only to service upon family or servants of tenant and the notice sent at the tenanted shop in dispute held to be proper service. As per decision Sudha Agarwal v. VIIth Additional District Judge, AIR 2006 NOC All 1246.
36. A notice by landlord to vacate is notice of quit. A lease not determined under clause(c) to (g) of Section 111 of Transfer of Property Act can be determined as per clause(h) of Section 111 of Transfer of Property Act.
37. Since notice to quit in presenti in Section 111(h) of Transfer of Property Act, it satisfies the requirements of Section 106 of Transfer of Property Act.
38. As a matter of fact notice as per Section 106 of Transfer of Property Act does not provide any cause of action for the eviction suit. Just as Section 80 of Civil Procedure Code does not provide any cause of action as per decision K.N Ramakrishnan v. C. Keral Chand AIR 1971 Mad. 150.
1. A suit for ejectment and mesne profit is not maintainable when filed without notice to quit as per decision Satish Chand Makhan v. Govardan Das Byas AIR 1984 SC 143.
2.
40. In the instant case on hand, the Respondent/Plaintiff (temple) has issued Quit Notice Ex.A.3 dated 7.3.1994 to the Appellant/Second defendant's father viz, the First Defendant(since deceased) in accordance with Section 106 of Transfer of Property Act. Further, as per Section 111 of Transfer of Property Act, a Lease of an immovable property could be determined, either (a) by efflux of the time limited thereby (b) where such time is limited conditionally on the happening of some event-by the happening of such event (c) where the interest of the lessor in the property terminates on, or his power to dispose off the same extends only to, the happenings of any event-by the happenings of such event (d) in case the interests of the lessee and the lessor in the whole of the property become vested at the same time in one person in the same right etc. A tenancy at will or a tenancy on sufferance is determined by demand for possession or by entry by the landlord without notice or by the tenant quitting. Other tenancies are determined in one way or other any one of the modes prescribed by Section 111 of Transfer of Property Act, 1882.
41. As per Section 111(h) of Transfer of Property Act in the present case, the determination of tenancy has been given the cut off date as 31.3.1994 The date of termination of tenancy is a valid one. Therefore, it cannot be contended by any such of imagination that the suit suffers because Ex.A.3 notice is not in accordance with either under Section 106 or under Section 111(h) of Transfer of Property Act. On going through the judgment of the trial court, it is clear that the arrears of rental amount has been paid as indicated in the plaint granting amount of Rs. 4834.50/-(Rupees four thousand eight hundred and thirty four and fifty paise only) for the period of April 1992 till March 1994 and the compensation for the period of 1.4.1994 to 31.1.1995 has been paid by the Appellant/Second Defendant's father viz, the First Defendant (since deceased) and therefore, the only question that remains for consideration is whether the notice under Section 106 of Transfer of Property Act is valid or otherwise. This Court has delved deep into Ex.A.3 notice both in qualitative and in quantitative terms and is of the earnest view that the said notice Ex.A.3 does not suffer from any material irregularity or patent illegality warranting any interference in the hands of this Court. Also, both the courts below have given a categorical finding that the Respondent/Plaintiff is entitled to get possession of the suit property from the Appellant/Second Defendant. The said finding/conclusion arrived at by both the courts do not warrant any interference, in the hands of this Court. Accordingly, the substantial question of law is answered against the Appellant/Second Defendant.
42. In the result, the Second Appeal is dismissed leaving the parties to bear their own costs. Consequently, C.M.P No. 1286 of 2006 is also closed. The trial court has granted two months time to the Appellant/Second Defendant to vacate from the suit property namely the shop. The Learned Counsel for the Appellant/Second Defendant prays for six months time being granted to the Appellant/Second Defendant to vacate and hand over the vacant possession of the suit property viz, the shop, in which the Appellant/Second Defendant is carrying on business. However, this Court exercising its judicial discretion, is inclined to grant four months time to the Appellant/Second Defendant to vacate and hand over vacant possession of the suit property namely the shop to the Respondent/Plaintiff.
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