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2011 DIGILAW 362 (MAD)

Aravindharaj Adhithan v. R. Perumal

2011-01-24

G.RAJASURIA

body2011
Judgment :- 1. This second appeal is filed by the defendant, inveighing the judgment and decree dated 29.11.2008 passed by the Principal Subordinate Court, Chengalpattu, in A.S.No.71 of 2008 confirming the judgment and decree dated 31.10.2007 passed by the District Munsif, Chebngalpattu, in O.S.No.64 of 2006, which was filed for delivery of possession and damages. 2. The parties, for the sake of convenience, are referred to here under according to their litigative status and ranking before the trial Court. 3. Compendiously and concisely, the relevant facts absolutely necessary and germane for the disposal of this second appeal would run thus: (i) The respondent herein, as plaintiff, filed the suit seeking the following reliefs: "To pass judgment and decree in favour of the plaintiff: a)directing the defendant to hand over the possession of the schedule mentioned property within a time to be specified by this Hon'ble Court. b) directing the defendant to pay damages for the period of his illegal occupation; c) directing the defendant to pay future damages at Rs.200/- per day (Rs.100/- each shop) till the delivery of vacant possession of the suit property." (ii) Written statement was filed resisting the suit. Whereupon issues were framed by the trial Court. (iii) During trial, the plaintiff on his side examined himself as P.W.1 and marked Exs.A1 to A9. The defendant on his side examined himself as D.W.1 and Exs.B1 to B13 were marked. (iv) Ultimately, the trial Court ordered eviction, as against which, the appeal was filed for nothing but to be dismissed by the appellate Court, confirming the judgment and decree of the trial Court. 4. Challenging and impugning the judgments and decrees of the Courts below, this second appeal has been filed on various grounds inter alia to the effect that the Courts below were wrong in holding as though after the initial expiry of 11 months period of tenancy there was no tenancy at all and there was no necessity at all for issuance of notice etc, which was totally wrong. 5. The appellant/defendant, in the memorandum of grounds of second appeal suggested the following substantial questions of law: "a. Whether the learned lower appellate Court was erred by held that lease period is only for 11 months period for commercial purpose or not? 5. The appellant/defendant, in the memorandum of grounds of second appeal suggested the following substantial questions of law: "a. Whether the learned lower appellate Court was erred by held that lease period is only for 11 months period for commercial purpose or not? b. Whether the learned lower appellate Court has committed serious error by erroneously held that statutory notice under Section 106 of T.P.Act is not necessary after expiry of 11 months period or not? c. Whether the learned lower appellate Court has failed to ascertain the true intention between the parties or not? And as though tenancy period entered for period of 11 months, will it be concluded by the end of 11 months or not? d. Whether the lower appellate Court has erred by applying the principle of efflux of time under Section 111(a) of T.P.Act to the end of 11 months period or not?" (extracted as such) 6. Heard both as to whether any substantial question of law has to be framed in this case. 7. At the outset itself I recollect and call up the following decisions of the Honourable Apex Court: (i) (2006) 5 Supreme Court Cases 545 - HERO VINOTH (MINOR) VS. SESHAMMAL. (ii) 2008(4) SCALE 300 - KASHMIR SINGH VS. HARNAM SINGH AND ANOTHER. (iii) 2009-1-L.W.1 - STATE BANK OF INDIA & OTHERS vs. S.N.GOYA: 8. A bare and plain reading of those precedents would reveal and demonstrate that in second appeal, this Court could not interfere relating to the concurrent finding of facts by the Courts below, unless there is any perversity or illegality or any substantial question of law is involved. 9. The contention on the side of the appellant/defendant that there was holding over of tenancy even after the initial period of 11 months even if accepted, at the most under the Transfer of Property Act, the tenant, namely, the defendant is entitled to statutory notice under Section 106 of the Act. 10. 9. The contention on the side of the appellant/defendant that there was holding over of tenancy even after the initial period of 11 months even if accepted, at the most under the Transfer of Property Act, the tenant, namely, the defendant is entitled to statutory notice under Section 106 of the Act. 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 admittedly 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. 12. In the result, the second appeal stands dismissed. However, there is no order as to costs. Consequently, connected miscellaneous petitions are dismissed. 13. However, taking into consideration the fact that the appellant/defendant is running a hardware shop in the premises and it might take some time for him to find alternative accommodation, I would like to grant 6 months' time from this date for vacating the premises and handing over vacant possession of the same to the respondent/plaintiff, subject to payment of future rent regularly every month, without any default.