IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 28.08.2008 CORAM THE HONOURABLE Mr.JUSTICE S. NAGAMUTHU Second Appeal No.600 of 2000 S.Samy .. Appellant -Vs.- Valliammal .. Respondent PRAYER: Appeal filed under Section 100 C.P.C., against the judgment and decree made in A.S.No.75 of 1996 on the file of Sub Court, Udumalpet, dated 05.10.1999 reversing the judgment and decree made in O.S.No.256 of 1989 on the file of learned District Munsif, Udumalpet dated 12.07.1995. For Appellant : Mr.K.Kalyana Sundaram For Respondent : T.S.Ramanathan JUDGMENT
The defendant is the appellant. The respondent/plaintiff filed O.S.No.256 of 1989 on the file of the learned District Munsif, Udumalpet, for recovery of possession and for rent. The learned District Munsif by decree and judgment dated 12.07.1995, dismissed the suit. Challenging the same, the respondent/plaintiff filed A.S.No.75 of 1996 on the file of the learned Subordinate Judge, Udumalpet. The learned Subordinate Judge, by decree and judgment dated 05.10.1999, allowed the appeal thereby setting aside the decree and judgment of the trial Court. The First Appellate Court granted three months time for the appellant/defendant to hand over possession to the respondent/plaintiff and in respect of the arrears of rent, the First Appellate Court gave liberty to the respondent/plaintiff to approach the trial Court to withdraw the rent which was deposited during trial of the case. Challenging the same, the appellant/defendant has come forward with this second appeal.
2.For the sake of convenience, in the judgment, the appellant shall be referred to as the defendant and the respondent as the plaintiff.
3.The case of the plaintiff in short is as follows:-
The plaintiff is the absolute owner of the suit property and the defendant is the tenant. Since, the defendant had fallen in arrears of rent, the plaintiff issued a legal notice under Section 106 of the Transfer of property Act on 20.03.1989 thereby, terminating the tenancy by giving seven clear days notice. The defendant sent a reply dated 30.03.1989 wherein, the defendant has stated that the daughter of the plaintiff had filed a suit in O.S.No.256 of 1989 on the file of the Subordinate Court, Udumalpet for partition and because of the pendency of the said suit, the defendant could not pay rent to the plaintiff. However, the defendant further stateD that he would pay the rent before the Court in O.S.No.39 of 1989. Thereafter, the plaintiff filed the present suit.
4.The case of the defendant in short is as follows:-
It is true that the defendant is the tenant. But, it is not correct that the defendant did not pay the rent regularly. Because, the suit in O.S.No.39 of 1989 was filed by the daughter of the plaintiff, and since there was a dispute in respect of the right to collect rent between the plaintiff and her daughter, the defendant could not pay the rent to the plaintiff. The defendant has reiterated that he would pay rent in Court. The notice issued under Section 106 of the Transfer of Property Act is defective inasmuch as 30 days time was not granted. So, the suit is liable to be dismissed.
5.Based on the above pleading, the trial Court framed appropriate issues. During trial, on the side of the plaintiff, one Natrayan was examined as P.W.1. On the side of the defendant, he was examined as D.W.1. On the side of the plaintiff as many as eight documents were marked as Exs.A.1 to A.8 and on the side of the defendant, three documents were marked as Exs.B.1 to B.3. Considering both oral and documentary evidence available on record, the trial Court dismissed the suit however, the First Appellate Court has reversed the same. It is the said decree and judgment of the First Appellate Court which is under challenge in this second appeal.
6.While admitting the Second Appeal, this Court has framed the following substantial question of law:-
“Whether the Courts below are right in coming to a conclusion that a notice issued under Ex.A.2 is valid under law, particularly when the time granted in only one week which is against Section 106 of the Transfer of Property Act?”
7.Now let me examine the above said substantial question of law.
8.The learned counsel for the defendant would rely on a judgment of a Constitution Bench of the Hon’ble Supreme Court in Mangilal v. Suganchand Rathi (1964 (5) S.C.R. Supreme Court Reports 239) wherein, it has been held that if the notice under Section 106 of the Transfer of Property Act, is defective in the sense, if the required time is not granted in the notice, then, the lease will not stand terminated and so, the suit for recovery of possession by the landlord is liable to be dismissed.
9.Ofcourse, it was the legal position prior to coming into force of the Transfer of Property Amendment Act, 2002 (3 of 2003). Section 106(3) of the Transfer of Property Act after the Amendment reads thus:-
“106(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.”
10.The said amendment came into force on 01.01.2003. The next question is, whether in respect of pending suits and appeals or any other proceeding, the newly introduced section 106 (3) of the Act in the place of old Section 106 (3) would be applicable or not. Answer to this question is readily available in Section 3 of the Amendment Act, which reads as follows:-
“3.Transitory provisions:- The provision of Sec.106 of the Principal Act, as amended by Sec.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 were no suit or proceeding has been filed before such commencement.”
10.A glance through the above provision would obviate any doubt regarding the applicability of amended provision in Section 106(3) of the Transfer of Property Act to the pending suits and other proceedings.
11.In view of the said clear position, though it is alleged in this case that the notice issued by the plaintiff under Ex.A.2 is defective, in the sense the period specified fell short of the period specified under Section 106, the same would not invalidate the notice. So, there are no grounds to non suit the plaintiff. Thus, the only substantial question of law raised in the appeal is answered against the appellant/defendant. Thus, there is no merit in the appeal, appeal fails and accordingly the same is dismissed. No costs.
jbm
To
1.The Sub Court,
Udumalpet
2.the District Munsif,
Udumalpet
[ PRV / 15825 ]