BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 19/08/2010 CORAM THE HONOURABLE MS.JUSTICE R.MALA SECOND APPEAL (MD)No.1728 of 2002 and SECOND APPEAL (MD)No.1729 of 2002 and C.M.P.Nos.14728 and 14729 of 2002 and C.M.P.Nos.3531 and 3532 of 2003 N.Periyasamy .. Appellant in S.A.No.1728 of 2002 S.Muthiah ... Appellant in S.A.No.1729 of 2002 Vs K.AL.KR.AL.V.Yakappa Chittiar ... Respondents in both appeals Prayer Second Appeal under Section 100 of C.P.C., to set aside the judgments and decrees dated 26.04.2002 passed in A.s.No.3 and 10 of 2002 on the file of the Sub Court, Devakottai confirming the judgments and decrees dated 11.09.2001 passed in O.S.No.18 and 19 of 2000 on the file of the District Munsif, Devakottai. !For Appellants in both appeals ... Mr.V.Sanjeevi ^For Respondent in both appeals ... Mr.VR.Shanmuganathan :JUDGMENT
This Second appeal has been filed to set aside the judgments and
decrees dated 26.04.2002 passed in A.s.No.3 and 10 of 2002 on the file of the
Sub Court, Devakottai confirming the judgments and decrees dated 11.09.2001
passed in O.S.No.18 and 19 of 2000 on the file of the District Munsif,
Devakottai.
2. Since the judgments and decrees passed in A.S.Nos.3 and 10 of
2002 are arising out of the judgments and decrees made in O.S.Nos.18 and 19 of
2000, where a common judgment has been passed, these second appeals are also
taken up together for final disposal.
3.The respondent as plaintiff has filed a suit stating that the
appellants herein are the tenants under him, but the appellant in 1728 of 2002
has made unauthorised construction and they have also failed to pay the monthly
rent and hence, he has come forward with the suit for recovery of possession
after removing superstructure in the suit property and for past and future
profits.
4.The appellants herein raised the contention that with the
permission of the respondent only the appellant in S.A.No.1728 of 2002, made a
construction and both the appellants are also ready to pay the rent amount by
way of Money Order, since the plaintiff has refused to receive the rent amount,
but, the plaintiff with the malafide intention has refused to receive the same
also and hence, they prayed for the dismissal of the suits.
5.The learned trial Judge, after considering the averments both in
the plaints and written statements and considering the arguments advanced by
both the counsel, framed necessary issues and considering the oral evidence of
P.W.1 and D.Ws.1 in both suits, Exs.A1 to 5 and Exs.B1 to 3, ordered for
eviction. Aggrieved over against the said judgments and decrees, the
appellants/defendants preferred two appeals in A.S.Nos.3 and 10 of 2002 before
the Subordinate Judge, Devakottai, where the same were dismissed and confirmed
the judgments and decrees of the trial Court, against which the defendants have
preferred this present second appeals.
6.At the time of admission, this Court has framed the following
substantial Questions of Law:
Substantial Questions of Law in A.S.No.1728 of 2002:
1. Whether in law the forfeiture of tenancy on the alleged wilful default
in payment of rent under Section 111(g) of the Transfer of Property Act, 1882 is
sustainable, when the plaintiff refused to receive the rent and returned the
rent sent by the defendant by Money order as evidenced by Exs.B1 and B2?
2.Whether in law the defendant is entitled to relief against forfeiture of
tenancy as contemplated under Section 114 of the Transfer of Property Act when
there is no wilful default in payment of rent and the plaintiff malafide refused
to receive the rent and when the defendant has already tendered the rent and
further ready to pay the entire due as on date?
3.Whether in law the judgment and decree passed by the Courts below are
sustainable, when they have based their conclusion on mere surmises and
conjectures without appreciating the oral and documentary evidence on record in
their proper perspective?
Substantial questions of law in S.A.No.1729 of 2002:
1.Whether in law the present suit for ejectment as instituted is
maintainable without terminating the tenancy by serving valid notice on the
defendant as required under Section 106 of the Transfer of Property Act, 1882
particularly when the tenancy is admitted and the defendant is in possession of
the suit property as a tenant?
2.Whether in law the notice sent by the plaintiff could be treated as
valid notice as contemplated under Section 106 of the Transfer of Property Act
when the said notice was returned unserved to the plaintiff?
3.Whether in law the defendant is entitled to relief against forfeiture of
tenancy as contemplated under Section 114 of the Transfer of Property Act when
there is no wilful default in payment of rent and the plaintiff malafide refused
to receive the rent and when the defendant has already tendered the rent and
further ready to pay the entire due as on date?
4.Whether in law the judgment and decree passed by the Courts below are
sustainable, when they have based their conclusion on mere surmises and
conjectures without appreciating the oral and documentary evidence on record in
their proper perspective?
7.The learned counsel appearing for the appellants would contend
that the appellants were regular in payment of rent and after obtaining proper
permission only, the appellant in S.A.No.1728 of 2002 has made superstructure in
the suit property. The rent has been fixed only after measuring the suit
property and when the appellants had paid the rent amount by way of Money Order,
the respondent herein with a malafide intention, has refused to receive the
amount and issued notice for termination, which is not in accordance with law.
He would further submit since the respondents want to let the suit property for
higher rent, he has issued the termination notice and hence, he prayed for the
allowing of the appeals.
8.Per contra, the learned counsel appearing for the respondent would
contend that the suits has been filed for eviction; the tenancy arrangement is
accepted; since the building is wanted for the staff of the Trust, they issued
termination notice, which was valid under Section 106 of the Transfer of
Property Act and hence, there is no merits in these appeals and prayed for the
dismissal of the appeals.
9.Substantial Questions of law Nos.1 and 2 in 1729 of 2002:
Since the suits are for ejectment, before filing of the suits, the
respondent has issued notice to the tenants/appellants under Section 106 of the
Transfer of Property Act for terminating the tenancy. The appellants herein
have raised the substantial questions of law, in respect of validity of the
notices issued under Section 106 of the Transfer of Property Act. A perusal of
Ex.A2 and A4, termination notice would show that both are notice of termination
of the tenancy arrangement and the notices have been issued on 25.01.2000 and
06.03.2000 respectively, wherein it was stated that the tenancy would have been
terminated with effect from 29.02.2000 and 31.03.2000 respectively. Hence, it
is clear that the notices Exs.A2 and A4 are valid under Section 106 of the
Transfer of Property Act. In such circumstances, I do not find any merits in
the arguments advanced by the learned counsel appearing for the appellants that
the notice under Section 106 of the Transfer of Property Act is not valid under
law. Substantial questions of law 1 and 2 in are ordered accordingly.
10. Substantial Questions of law Nos.3 and 4 in S.A.Nos.1728 of 2002
and Substantial Question of Law and 3 in 1729 of 2002:
It is appropriate to extract Section 111(g) of the Transfer of
Property Act, 1882:
Section 111. Determination of Lease:
(g)by forfeiture; that to say, (1) in case the lessee breaks an
express condition which provides that, on breach thereof, the lessor may re
enter; or (2) in case the lessee renounces his character as such by setting up a
title in a third person or by claiming title in himself; or (3) the lessee is
adjudicated an insolvent and the lease provides that the lessor may re-enter on
the happening of such event; and in any of these cases the lessor or his
transferee gives notice in writing to the lessee of his intention to determine
the lease;
But, here, notice has been issued under Exs.A2 and A4 respectively, wherein, it
has been stated that the rent amount has been paid only upto June 1998 and after
that the appellants have not paid the rent amount and hence, the notices have
been issued on 25.01.2000 and 06.03.2000 with an intention to terminate their
tenancy from 29.02.2000 and 31.03.2000 respectively. So the notices of
termination have been issued to the lessee with the intention to determine the
lease and after the expiry of the period mentioned in the notice, both suits
have been filed on 12.06.2000.
11.In such circumstances, I am of the view that the termination
notices dated 25.01.2000 and 06.03.2000 are valid under law. Admittedly the
appellants herein have not sent any reply to the Exs.A2 and A4 respectively.
Hence, the Money Order for the rent amount in respect of the the months July to
December was not refused by the respondent. It is pertinent to note that even
though the suit has been filed on 12.06.2000, it is not the case of the
appellants that they have deposited the rent amount into the Court or they
tendered the rent amount to the respondent before the Court, which shows that
they have not shown any interest to pay the rent amount even after filing of the
suit. The termination notices have issued on 25.01.2000 and 06.03.2000
respectively. But before the issuance of said notices, they sent the rent
amount by Money Order and that has been evidenced by Exs.B1 and B2. Hence I am
of the opinion that the notices under Section 106 of the Transfer of Property
Act, 1882 are valid under law and even after the termination notice have been
issued, the appellants herein have not paid the rent amount. It is appropriate
to extract Section 114 of the Transfer of Property Act, 1882:
114.Relief against forfeiture for non-payment of rent. – Where a lease of
immovable property has determined by forfeiture for non-payment of rent, and the
lessor sues to eject the lessee, if, at the hearing of the suit, the lessee pays
or tenders to the lessor the rent in arrear, together with interest thereon and
his full costs of the suit, or gives such security as the Court thinks
sufficient for making such payment within fifteen days, the Court may, in lieu
of making a decree for ejectment, pass an order relieving the lessee against the
forfeiture; and thereupon the lessee shall hold the property leased as if the
forfeiture had not occurred.
But, the case on hand, there is no evidence on the side of the appellants to
show that after issuance of notice, the appellants paid or tendered to the
respondent the rent in arrears, together with interest thereon and his full
costs of the suit, or gives such security.
12.In such circumstances, I am of the opinion that the appellants
are not entitled any benefit under Section 114 of the Transfer of Property Act
and there is no evidence to show that the respondent/plaintiff with a malafide
intention refused to receive the rent,when the appellants/defendants have
already tendered the rent amount and ready to pay the entire due as on date.
Hence, the substantial questions of law are answered in favour of the
respondent.
13.Substantial Question of Law No.3 in S.A.No.1728 of 2002 and
Substantial Question NO.4 in S.A.No.1729 of 2002:
In view of the answers given in the previous substantial questions of law
that the notices under Section 106 of the Transfer of Property Act, 1882 are
valid under law since there is no reply to Exs.A2 and A4 and furthermore, there
is no evidence to show that after receipt of notice, the appellants herein have
tendered the rent arrears invoking Section 114 of the Transfer of Property Act,
1882. Even during the trial also, the appellants neither tendered the rent
amount not deposited the admitted rent arrears. In the above stated
circumstances, I am of the opinion that the trial Court and the 1st appellate
court have considered all the aspects in proper perspective and come to the
correct conclusion that the appellants are not entitled to any relief and hence,
the arguments advanced by the learned counsel appearing for the appellants does
not merit acceptance and the judgments and decrees of the trial court and 1st
appellate courts are liable to be confirmed and the second appeals are liable to
be dismissed.
14.In fine, the second appeals are dismissed and the judgment and decree
passed by the trial court confirming by the 1st appellate court are hereby
confirmed. Consequently, connected miscellaneous petitioners are also
dismissed. No costs. Time for eviction is 3 months.
Arul
To
1.The Subordinate Judge,
Devakottai.
2.The District Munsif
Devakottai.