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2012 DIGILAW 1564 (MAD)

L. C. Saptharishi v. E. D. Balasubramanian

2012-03-28

V.PERIYA KARUPPIAH

body2012
Judgment :- 1. This appeal is directed against the judgment and decree passed by the first appellate court in A.S.No.307 of 2001 dated 31.12.2003 in interfering with the judgment and decree passed by the trial court made in O.S.No.1262 of 1991 dated 23.08.2000 in partially decreeing the suit. 2. The appellant was the defendant and the respondent was the plaintiff before the trial court. 3. The case of the plaintiff as stated in the plaint would be as follows:- The suit site belongs to the plaintiff. On 29.11.1984, it was leased out to the defendant for a period of five years for storing cylinders at Rs.1,500/-p.m. It was agreed to renew the lease for further five years at the option of the plaintiff. In case the plaintiff declines, the defendant has to vacate and hand over vacant possession. The plaintiff wanted the property for his own use. Hence, on 29.11.1989, the request of the defendant for renewal was turned down. Even though, at the request of the defendant seven months time from 29.11.1989 was given to the defendant to vacate, however, at the cost of Rs.2,500/- p.m. But from April 1990, the defendant had paid only Rs.1,500/-p.m. On 05.06.1990, he had requested the plaintiff to renew the lease for three years and collect the balance rent. The plaintiff did not agree for the same. Again the defendant paid Rs.1,500/- per month. On 21.10.1990, by a lawyer notice, the plaintiff terminated the tenancy and sought for vacant possession by the end of 28.11.1990 and also damages at Rs.4,000/- per month from November 1990 for use and occupation. He did not vacate the property. On 21.11.1990, the defendant sent a false reply. Thus, the plaintiff sought for recovery of vacant possession; Rs.3067/- towards damages at the rate of Rs.4,000/-p.m for 23 days from 29.11.1990; and for future damages at the said rate. 4. The case of the defendant as set out in the written statement would be as follows:- On 29.11.1984, under an unregistered and insufficiently stamped lease deed the defendant took lease of the site for five years with effect from 29.11.1984 at Rs.1,500/-p.m. He built the superstructure. The plaintiff agreed for renewing the lease for five years at Rs.2,500/- p.m till November 1992 and from December 1992 to November 1994 at Rs.3000/- p.m. The defendant also gave a draft lease agreement. The plaintiff not renewed the lease. He kept quite. The plaintiff agreed for renewing the lease for five years at Rs.2,500/- p.m till November 1992 and from December 1992 to November 1994 at Rs.3000/- p.m. The defendant also gave a draft lease agreement. The plaintiff not renewed the lease. He kept quite. However, from December 1989 till March 1990, the defendant paid rent at Rs.2,500/-p.m believing that the plaintiff will renew the lease. From April 1990, the defendant paid only Rs.1,500/-p.m since the plaintiff withheld renewal of the lease. However, subsequently the defendant started paying Rs.2,500/-p.m. The request for renewal was not turned down. The renewal for three years nor permission for seven months was sought for. There is no arrears of rent. The Notice to quit dated 21.12.1990 is not in accordance with Section 106 of the Transfer of Property Act. It is not valid and proper. On the request of the defendant, the plaintiff levelled the ground for safety purposes. He had agreed to complete it before January 1990. The defendant also removed the southern side fence and reduced the expenses of the plaintiff. But, suddenly the plaintiff stopped the levelling work. The defendant had put up superstructure at a cost of Rs.90,000/-with the knowledge and permission of the plaintiff. Since the lease is unregistered, the suit is not maintainable. The defendant prayed for dismissal of the suit. 5. The trial court framed necessary issues on the basis of the pleadings and entered trial. After appraising the evidence adduced before it, it had come to the conclusion of dismissing the suit except the prayer for payment of damages for use and occupation at Rs.4,000/- per month from the date of the plaint. 6. Aggrieved by the judgment and decree passed by the trial court, the plaintiff preferred an appeal before the first appellate court in A.S.No.307 of 2001. The first appellate court heard the arguments of both sides and had come to the conclusion of setting aside the judgment and decree of the trial court and thus, the suit was decreed for delivery of vacant possession and for damages at Rs.4000/-per month for use and occupation from the date of suit till the date of delivery with proportionate costs. 7. Against the judgment and decree passed by the first appellate court, the aggrieved defendant preferred the present appeal. 8. 7. Against the judgment and decree passed by the first appellate court, the aggrieved defendant preferred the present appeal. 8. On admission of the appeal, this Court has framed the following questions of law for consideration in the Second Appeal:- 1) Section 3 of the Amendment of the T.P. Act applies only to suit or proceedings which means either a suit for possession or ejectment or other eviction proceedings does not include appeals. Whether applying the amended provisions to appeals by lower appellate court is valid under law or not ? 2) In any event, without prejudice to the other grounds of appeals, it is also submitted that the amended Section 3 insofar as it acts retrospectively to a limited extent is unreasonable and arbitrary and consequently unconstitutional as much as it takes away the vested rights accrued to the parties. There is no jurisdiction and rationale for giving retrospective effect to the amended provision of Section 3. Therefore, whether the lower appellate court was correct in applying this amended provisions retrospectively to this case or not? 3) Whether the amended provision under Section 106 of the Transfer of Property Act is applicable to the present case retrospectively ? 4) Whether the tenant continues to be in premises after the expiry of lease period. Whether the lower appellate court was correct in observing that the tenancy is not in holding over ? 5) In the absence of an agreement, whether the lower appellate court is correct in holding that the tenancy is not by month to month ? 9. Heard Mr.N.C.Ramesh, learned senior counsel appearing on behalf of M/s.V.Rangarajan, learned counsel for the appellant and Mr.V.Subramani, learned counsel appearing for the respondent. 10. The learned counsel for the appellant / defendant would submit in his argument that the first appellate court had without any reasons interfered in the judgment of the trial court. He would further submit that the lease in between the parties even though unregistered was admitted and accordingly, it commenced from month to month and after the lapse of tenancy period, the tenant continues to be in possession of the said property as tenant by holding over. He would further submit that the said tenancy was admittedly commencing from 29th of every English Calendar month and was ending with 28th of the next succeeding month and accordingly, it commenced firstly on 29.11.1984. He would further submit that the said tenancy was admittedly commencing from 29th of every English Calendar month and was ending with 28th of the next succeeding month and accordingly, it commenced firstly on 29.11.1984. He would further submit that the appellant / tenant continues to be in possession of the suit property even after the expiry of lease period. He would also submit that the lease existing in between the parties was said to have been terminated by the issuance of a notice under Section 106 of Transfer of Property Act and it was not issued in accordance with the provisions of Section 106 of Transfer of Property Act. He would further submit that the tenancy being month to month, the ingredients of the said notice terminating the tenancy was not strictly given in accordance with the provisions, viz., to terminate tenancy ending with the Calendar month and 15 days time limit to vacate the premises. He would further submit that the tenancy was terminated by the end of 29.11.1990 and it was not given as ending with the month of November. He would further submit that the amendment of Section 106 of the Transfer of Property Act through the Amendment Act would not apply to the present case, since the tenancy was said to have been terminated even prior to the implementation of the said amendment in the Act. He would also submit that the said amendment was not retrospective, but was prospective nature. He would further submit that the first appellate court had applied the amended provisions of Section 106 of Transfer of Property Act and found that the tenancy was validly terminated, which are not correct, since the unamended Section 106 of Transfer of Property Act is only applicable to the present case. He would also submit in his argument that the vested right accrued to the appellant/tenant under the provisions of Section 106 of Transfer of Property Act shall not be taken away by virtue of the amendment of Section 106 of the Transfer of Property Act. He would cite a judgment of the Hon'ble Apex Court reported in AIR 1965 SC 1970 (Amireddy Raja Gopala Rao and others ..vs. Amireddi Sitharamamma and others) for the principle that any statute has to be interpreted so as to respect the vested rights. He would cite a judgment of the Hon'ble Apex Court reported in AIR 1965 SC 1970 (Amireddy Raja Gopala Rao and others ..vs. Amireddi Sitharamamma and others) for the principle that any statute has to be interpreted so as to respect the vested rights. He would, therefore, submit in his argument that the said amended provisions would not apply to the present case in view of the transitory provisions laid down in the Amendment Act. He would cite a judgment of this Court reported in 2008 (4) LW 486 (S.Samy vs.. Valliammal) in support of his argument. He would also draw the attention of the Court to a judgment of this Court reported in AIR 2009 NOC 2695 (MAD) (Mohamed Ismail and another ..vs.. Thiruthani Lakshmi Ammal) in support of his case. He would also bring it to the notice of this Court a judgment reported in AIR 2006 Bombay 321 (Allahabad Bank ..vs.. Prakash Shankar Wagh) for the same principle. He would further submit in his arguments that the appellant / tenant had expended much for keeping the cylinders in the tenanted premises by levelling the ground and the said circumstance should also be considered while passing any order. He would further submit that the first appellate court did not consider the effect of amendment made in Section 106 of the Transfer of Property Act, but had applied the said amendment to the present case and passed an order of ejectment, which is not sustainable. Therefore, he would request the Court to interfere with the judgment and decree passed by the first appellate court and to set aside the same and thereby, dismiss the suit filed by the respondent / plaintiff. Thus, the Second Appeal may be allowed. 11. The learned counsel for the respondent/plaintiff would submit in his argument that the tenancy admittedly commenced from 29.11.1984 and was ending with the next month viz., 28.12.1984 and thereafter, continued ending with the 28th day of every next month and the notice to quit under Section 106 of Transfer of Property Act was issued by the plaintiff with 15 days clear notice ending with 28.11.1990 and the said notice was produced as Ex.A3, to which the defendant replied through Ex.A4. He would also submit that the reply in Ex.A4 dated 21.11.1990 would go to show that the notice of termination in Ex.A3 was received sufficiently earlier on 31.10.1990 and more than 15 days was available to vacate the premises by the end of 28.11.1990. He would also submit that the defendant had admitted the commencement of tenancy by every 29th day of English Calendar month and was ending with 28th day of next succeeding English Calendar month. He would further submit that the original construction of Section 106 of Transfer of Property Act would envisage that the notice to quit must be given by the end of the tenancy month with clear 15 days and therefore, the notice sent in Ex.A3 was quite valid and the first appellate court had found so and set aside the judgment of the trial court, which misconstrued the evidence and the provisions of Section 106 of the Transfer of Property Act. He would also submit that even otherwise the amendment of Section 106 of the Transfer of Property Act would be helpful, since after amendment, the provision of Section 106 of Transfer of Property Act has been relaxed by stating that for a lease of month to month, termination may be done by issuing 15 days notice. He would also submit that there is no necessity for the termination date shall be ending with the end of the tenancy month. He would also submit that the argument advanced by the learned counsel for the appellant / tenant that the amended Section 106 of Transfer of Property Act would not apply to the present case, is not correct in this case and even otherwise, the said amended provision of Section 106 of the Transfer of Property Act is applicable in view of the transitory provision in Section 3 of the Amendment Act. He would further submit in his arguments that a close reading of the said provision in Section 3 of the Act would show that the termination notice issued prior to the amendment can be made applicable with the amended provisions of Section 106 of the Transfer of Property Act, if the suit filed thereon is pending at the commencement of the Amendment Act. He would also submit that the judgments cited by the learned counsel for the appellant would also be helpful to the plaintiff, since the suit as well as the appeal suit pending before the first appellate court were in vogue on the date of commencement of the Transfer of Property (Amendment) Act, 2002 (3 of 2003), viz., 31.12.2002. He would also submit that the appeal suit is the continuance of the original suit and therefore, the provisions in Section 3(a) of the Transfer of Property (Amendment) Act, 2002 (3 of 2003) would apply to the present case. He would also submit that the improvement stated to have been effected by the tenant in the premises would have no relevance in this case, since the tenant had used the premises as a vacant site for storing the gas cylinders. He would also submit in his argument that the finding of the first appellate court is perfectly in order and in accordance with law and there is no necessity to interfere with the findings reached by the first appellate court. He would therefore, request the Court to dismiss the Second Appeal. 12. I have given anxious thoughts to the arguments advanced on either side. 13. The suit has been filed for the following reliefs:- a) To quit and deliver vacant possession of the suit property to the plaintiff; b) Directing the defendant to pay Rs.2933/-towards damages for use and occupation from 29.11.1990 to 21.12.1990 for 23 days at the rate of Rs.4000/-; c) To pay the damage for use and occupation at Rs.4000/-per month from the date of plaint till the date of delivery of the possession of the suit property; d) To pay the cost of the suit. 14. No doubt the suit was dismissed except for the relief of damages. At the time of disposal of the suit on 23.08.2000, the Transfer of Property (Amendment) Act, 2002 (3 of 2003) was not in existence and it was implemented on and from 31.12.2002. Therefore, the unamended provisions of Section 106 of the Transfer of Property Act was applied by the learned trial Judge and a decision was reached. Thereafter, the appeal was filed by the plaintiff against the said judgment and decree, in A.S.No.307 of 2001 and it was disposed only on 31.12.2003. Therefore, the unamended provisions of Section 106 of the Transfer of Property Act was applied by the learned trial Judge and a decision was reached. Thereafter, the appeal was filed by the plaintiff against the said judgment and decree, in A.S.No.307 of 2001 and it was disposed only on 31.12.2003. In the meanwhile, the Transfer of Property (Amendment) Act, 2002 (3 of 2003) to amend Section 106 of Transfer of Property Act came into force on and from 31.12.2002. The first appellate court had considered the amendment of Section 106 of the Transfer of Property Act and had reversed the finding reached by the trial court and thus, the suit was decreed. 15. According to the submission of the learned counsel for the appellant/tenant, the amended provisions of Section 106 of the Transfer of Property Act are not applicable to the present case. For that, he has relied upon the judgment of this Court reported in 2008 (4) LW 486 cited supra and AIR 2009 NOC 2695 (MAD) cited supra. However, he would also rely upon the judgment of the Hon'ble Apex Court reported in AIR 1965 SC 1970 cited supra. The relevant passage relied upon by the appellant would be as follows:- "A statute has to be interpreted, if possible, so as to respect vested rights, and if the words are open to another construction, such a construction should never be adopted." Relying upon the said judgment, it has been argued that the amendment of Section 106 of the Transfer of Property Act cannot be taken as retrospective for the notices issued prior to the date of amendment of the said provision. However, it was retracted by the learned counsel for the respondent / plaintiff that the transitory provision in Section 3 of the Transfer of Property (Amendment) Act, 2002 (3 of 2003) is very clear and therefore, the legislation would prevail when specific provision has been made towards the application of Amendment Act. 16. This court had come to a conclusion in 2008 (4) LW 486 cited supra that the transitory provisions are to be followed when the applicability of provisions of Section 106 of the Transfer of Property Act is in dispute. For that, "Section 3 - Transitory Provision" has been extracted, which would run as follows:- "3. 16. This court had come to a conclusion in 2008 (4) LW 486 cited supra that the transitory provisions are to be followed when the applicability of provisions of Section 106 of the Transfer of Property Act is in dispute. For that, "Section 3 - Transitory Provision" has been extracted, which would run as follows:- "3. 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". According to the aforesaid provision, the notices sent prior to the amendment and if any suit is filed on the basis of such notice and is pending at the commencement of the Amendment Act, Section 3(a) of the said Act which amended Section 106 of the Transfer of Property Act shall apply. The said provision would also mean that when the suit is pending at the time of implementation of the Transfer of Property (Amendment) Act, 2002 (3 of 2003), the amended provision would apply. 17. As regards the present case, the notice under Section 106 of the Transfer of Property Act in Ex.A3 was issued on 21.10.1990 and it was received by the defendant on 31.10.1990, in which the termination of lease was done by the end of tenancy month ending with 28.11.1990. Therefore, I could see that 15 days notice has been clearly given from the date of receipt of the notice till the date of termination viz., 28.11.1990. 18. The suit, even though, disposed of by the trial court on 23.08.2000, the appeal preferred by the plaintiff in A.S.No.307 of 2001 was pending before the first appellate court on the date of implementation of the said Act, viz., 31.12.2002. It is a settled law that when an appeal has been filed against any judgment and decree passed in Original Suit, the said Original Suit is deemed to have been pending as the appeal is nothing but an extension of the Original Suit. Therefore, it could be easily construed that the suit was pending when the Amendment Act was enforced on 31.12.2002. Therefore, it could be easily construed that the suit was pending when the Amendment Act was enforced on 31.12.2002. According to the transitory provision, the amended provision of Section 106 of Transfer of Property Act is made applicable to the pending proceedings, namely, the appeal suit before the first appellate court. Therefore, the argument advanced by the learned counsel for the appellant / tenant that the amended provision of Section 106 of the Transfer of Property Act would not apply to the present case can not hold any water. 19. Even otherwise, if the amendment is not applied to the present case, the tenancy month as agreed in between the parties would be commencing from 29.11.1984 and was ending with 28.12.1984 and thereafter to continue so on. This has been candidly admitted by the defendant even in the grounds of this appeal. The original notice of termination in Ex.A3 was issued terminating the tenancy by the end of 28.11.1990 with the demand to hand over vacant possession on 29.11.1990. No doubt, the tenancy month in between the parties ends on 28th day of every English Calendar month and therefore, the termination of tenancy ending with 28.11.1990 was quite valid. The acknowledgement card produced in Ex.A5 was received by the defendant on 31.10.1990. It was also replied by the defendant through Ex.A4 dated 21.11.1990. From the date of receipt of the said notice, viz., 31.10.1990, there was more than 15 days to vacate the premises on 29.11.1990. Therefore, the unamended provisions of Section 106 of the Transfer of Property Act was also complied with by the plaintiff. However, the trial court had deliberately misconstrued the said evidence and was reluctant to decree the suit for ejectment. The first appellate court had promptly interfered with the mistake committed by the trial court and had corrected it by decreeing the suit. 20. Viewed from any angle, I could see that the judgment and decree passed by the first appellate court was delivered after considering the evidence and came to the conclusion in a correct perspective. For the foregoing discussions, the questions of law framed are decided against the appellant. Therefore, I do not find any reason to interfere with the judgment and decree passed by the first appellate court. 21. For the foregoing discussions, the questions of law framed are decided against the appellant. Therefore, I do not find any reason to interfere with the judgment and decree passed by the first appellate court. 21. For the foregoing discussion, I am of the considered view that the judgment and decree passed by the first appellate court is not liable to be interfered and therefore, it is confirmed and the Second Appeal preferred by the appellant / defendant is dismissed with costs. Time for vacating the premises is four months from the date of receipt of a copy of this order.