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2009 DIGILAW 748 (MAD)

A. Sankar v. Arulmighu Angalaparameswari

2009-03-18

G.RAJASURIA

body2009
JUDGMENT G. Rajasuria, J. 1. This second appeal is focussed by the defendant, animadverting upon the judgment and decree dated 27-10-2005 passed by the learned Additional District Judge, Fast Track Court No. 2, Chennai in A.S. No. 406 of 2004 confirming the judgment and decree dated 30-6-2004 passed by the learned I Assistant Judge, City Civil Court, Chennai in O.S. No. 5203 of 1997, which was one for eviction of the defendant from the suit property; payment of arrears of past rent and also damages for use and occupation till delivery of possession of the suit property by the defendant. For convenience sake, the parties are referred to here under according to their litigative status before the trial Court. 2. The respondent/plaintiff herein filed the suit as against the defendant/appellant seeking the following main reliefs: - directing the defendant to quit and deliver vacant possession of the schedule mentioned property herein to the plaintiff. - to pay a sum of Rs. 3,492/- being the arrears of rent from 1st February 1994 to 31-1-1997. - to pay damages at the rate of Rs. 97/- per month from the date of termination, i.e. to the date of handing over possession. Whereas the defendant entered appearance and filed the written statement resisting the suit on various grounds including the one that as per Section 11 of the City Tenants Protection Act termination notice was not given and that the notice issued under Section 106 of the Transfer of Property Act was inadequate. The trial Court framed the relevant issues. 3. During trial, one Mr. Balasubramanian was examined as P.W. 1, and Exs. A1 to A3 were marked. On the defendant's side, no one was examined and no document was also marked. 4. Ultimately the trial Court decreed the suit for evidence and also ordered payment of arrears of past rent and also damages for use and occupation till delivery of possession by the defendant in favour of the plaintiff. Being aggrieved by the judgment and decree of the trial Court the defendant preferred appeal before the learned Additional District Judge, Fast Track Court No. 2, Chennai for nothing but to be dismissed by the Appellate Court confirming the judgment and decree of the trial Court. Being aggrieved by the judgment and decree of the trial Court the defendant preferred appeal before the learned Additional District Judge, Fast Track Court No. 2, Chennai for nothing but to be dismissed by the Appellate Court confirming the judgment and decree of the trial Court. Being disconcerted by and dissatisfied with the judgments of both the Courts below, this Second Appeal is focussed by the defendant on various grounds and also suggesting the alleged following substantial questions of law in the memorandum of grounds: 1. Whether the Courts below is right in holding that in view of Act 2/96 notice under Section 106 of the Transfer of Properly Act is not necessary to the appellant herein? 2. Is not a notice under Section 106 of the Transfer of Property Act is necessary in a suit filed for possession by the temple? 5. Despite printing the names concerned, none appeared. 6. A plain pouring over and perusal of the typed set of papers including the certified copies of the judgments of both the Courts below would evince and display, demonstrate and convey that the plaintiff served proper notice under Section 106 of the Transfer of Property Act and a Notice under the Madras City Tenants Protection Act, 1921 was not necessary. 7. The present appeal is focussed mainly questioning the sufficiency of the Notice under Section 106 of the Transfer of Property Act. Admittedly, Ex. A1 dated 1-1-1997 the termination notice under Section 106 of the Transfer of Property Act was despatched by the plaintiff terminating the tenancy by the end of January 1997, as indubitably tenancy was for residential purpose. However, the notice was received by the defendant only on 20-1-1997 and accordingly, if calculated, by the end of January, 15 days clear notice was not available. However, the lower Court placing reliance on the following decisions, viz., (i) 1974 TNLJ 440 (Neelambal and Anr. v. S. Ramalingam) (ii) 1974 TNLJ 28 (Janakiraman v. Radhey Shyam). (iii) 2003 ILW 656 (Palaniswamy Swaminathan L. Viswanathan v. Sri Vysaria Madam Kodambakkam rep. by Matadhipathy Sri Vidyapayonnidhi Theertha Swamigal). clearly rendered its verdict that even though from the date of receipt of the said notice, there was no dear 15 days' notice, nonetheless, as per the evidence available on record the said notice was sent by R.P.A.D. much earlier to it, so to say, on 9-1-1997 itself. As such, in para Nos. by Matadhipathy Sri Vidyapayonnidhi Theertha Swamigal). clearly rendered its verdict that even though from the date of receipt of the said notice, there was no dear 15 days' notice, nonetheless, as per the evidence available on record the said notice was sent by R.P.A.D. much earlier to it, so to say, on 9-1-1997 itself. As such, in para Nos. 10 and 11, the trial Court considering the precedents of this Court held that Section 106 notice was correct. The first appellate Court also considering the pro et contra, gave its verdict to the effect that the findings given by the trial Court were correct. 8. In the memorandum of second appeal, nothing has been highlighted as to how the view taken by the trial Court confirmed by the Appellate Court, was erroneous and no decision contrary to the decisions relied on by the lower Court was also referred to in the ground of second appeal. The trial Court, placing reliance on the precedents of this Court, held that the notice under Section 106 of the Transfer of Property Act was valid even though there was no clear 15 days' notice from the date of receipt of such notice by the defendant. 9. I could see no question of law much less substantial question of law having arisen in this case. I would like to point out that Section 106 of the Transfer of Property Act itself was amended by virtue of Amendment Act Transfer of Property (Amendment Act), 2002 and the amended Section 106 would run thus: 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 months' notice; and a lease of immovable property for any other purpose shall be deemed to be lease from month to month, terminable, on the part of either lessor or lessee, by fifteen days' notice. (2) Notwithstanding anything contained in any other law for the time being in force, the period mentioned in Sub-section (1) shall commence from the date of receipt of notice. (2) Notwithstanding anything contained in any 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 subsection. As per the said amended provision, if it is viewed, it is clear that the suit was filed only on 4th March 1997, so to say, long after 15 days from the date of receipt of said notice on 20-1-1997 and that itself would reveal that it is a curative factor. However, the fact remains that Section 106 was amended during the pendency of the case before the trial Court and the said Amendment Act is made to apply to pending proceedings also. At this juncture. I would like to extract hereunder Section 3 of the Transfer of Property (Amendment) Act, 2002 (3 of 2003) as under: Section 3 of the Transfer of Property (Amendment) Act. 2002 (3 of 2003): Transitory provision :- The provisions of Section 106 of the Principal Act, as amended by Section 2, shall apply to: a) all notices in pursuance of which any suit or proceeding is pending at the commencement of this Act; and b) all notices which have been issued before the commencement of this Act but where no suit or proceeding has been filed before such commencement. Wherefore, it is clear that as per Section 106 Amendment Act, also, the termination notice sent under Section 106 of the Transfer of Property Act by the plaintiff cannot be found fault with. 10. Incidentally, I would like to point out that the benefit under the Madras City Tenants' Protection Act, 1921 are not available to the defendant for the reason that by virtue of Tamil Nadu Amending Act 2 of 1996, Clause (f) was inserted in Section 3(1) of the said Act and it runs as under: 3. This Act shall apply: (a) and (b).... Provided that nothing contained in this Act shall apply to tenancies of land owned. (a) to (e).... (f) by any religious institution or religious charity belonging to Hindu, Muslim, Christian or other religion. This Act shall apply: (a) and (b).... Provided that nothing contained in this Act shall apply to tenancies of land owned. (a) to (e).... (f) by any religious institution or religious charity belonging to Hindu, Muslim, Christian or other religion. The above amendment, which came into force with effect from 5-1-1996, would clearly render the defendant herein not to invoke any provision of the Madras City Tenants Protection Act including Section 11 of the said Act in its favour as the Act itself is not applicable to the properties concerning religious institutions or religious charities like the plaintiff. It is therefore crystal clear that this suit has been filed only after 1996 and the defendant cannot try to reap the benefits under the Madras City Tenants' Protection Act, 1921, even though, in the Second Appeal that point was not urged specifically. 11. In this case, my discussion supra would indicate that there is no question of law much less substantial question of law have arisen. 12. In the result, the second appeal is dismissed. No costs. Consequently, connected miscellaneous petition is also dismissed.