Madras High Court
Kannan vs Kanagavalli Ammal on 13 April, 1993
Equivalent citations: (1993)2MLJ408
JUDGMENT Abdul Hadi, J.
1. Having failed in both the courts below, the defendant has preferred this second appeal. The suit is for possession of a building which does not come under the Rent Control Act. The only question that was before the courts below as well as before me is whether the notice Ex.A-2, dated 15.4.1989 given by the plaintiff/ landlord confirms to Section 106 of the Transfer of Property Act, Both the courts have held that the said notice conforms to the requirements under Section 106 and concurrently decreed the suit. Since only a very short point is involved, I ordered notice of motion and pursuant to the notice of motion, the respondent has appeared through counsel and I have heard the arguments of both the counsels.
2. Ex.A-2 notice dated 15.4.1989 terminates the tenancy of the defendant by the end of May, 1989 and calls upon the defendant to deliver possession of the building on 1.6.1989. But the learned Counsel for the appellant lays very great emphasis on the admission made by the plaintiff in Ex.A-2 stating that the tenancy commences from 5th of every English calendar month. The learned Counsel argues that as per Section 106, the 15 days notice contemplated thereunder should expire "with the-end of a month of the tenancy". So, according to the said counsel since however as per Ex.A-2 the tenancy commences from 5th of every English calendar month, the 15 days notice must expire with 4th of the month succeeding to the date of Ex.A-2 notice. But actually it is not so. In this connection, he also relied on Chairmani Nadar v. Rajeswari, 1983 T.N.L.J. 208, which holds that when the above referred to requirements under Section 106 had not been strictly complied with, the notice would be defective one. But, the point here is whether there would be a "contract to the contrary" spoken to in Section 106 itself or there would be waiver of the notice stipulated therein, in view of the following features pointed out by the learned Counsel for the respondent:
1. Though Ex.A-2 says that the tenancy commences from 5th of every English calendar month, in para 4 of the plaint, it has been specifically stated that "that tenancy is according to the English calendar month", and that with reference to this allegation as well as the other allegation in the said para-4 there is no denial at all in the written statement. It is so. I also find that there is no denial in the written statement. No. doubt in the written statement the defendant has stated vaguely that the notice given was not in accordance with Section 106 of Transfer of Property Act.
2. Further in Ex.A-3, dated 20.4.1989, the reply sent by the defendant to Ex.A-2 the defendant has not taken the stand that Ex. A-2 notice was defective in any way.
I also find that in Ex.A-3 such a stand has not been taken at all and that Ex.A-2 notice seeks to determine the tenancy by the end of May, 1989 and not by the end of 4th of the succeeding month.
3. Further D.W. 1 the defendant while he gave evidence also did not specifically say that the tenancy only ended on 4th of every month. No doubt he deposed that the rent was payable on 5th of every month. But the actual date of payment of rent does not necessarily mean that the monthly tenancy ends with 4th of every month. Only in re-examination D.W. 1 deposed that Ex.A-2 notice was not in accordance with Section 106. But even there he did not specifically state how actually it was defective.
4. However, there was no suggestion also put to P: W.1 the plaintiff/landlord that the notice was defective specifically as stated above. No doubt, I find an answer in the cross-examination of P.W.1 where P. W.1 says that the allegation that Ex.A-2 notice was defective was not correct.
3. In the light of the above said features, it has to be seen whether there is valid notice to suit. In Calcutta Credit Corporation v. Happy Homes Limited . The Supreme Court observed as follows:
A notice which complies with the requirements of Section 106 of the Transfer of Property Act operates to terminate the tenancy, whether or not the party served with the notice asserts thereto. A notice which does not comply with the requirements of Section 106 of the Transfer of Property Act in that it does not expire with the end of the month of the tenancy, or the end of the year of the tenancy, as the case may be or of which the duration is shorter than the duration contemplated by Section 106, may still be accepted by the party served with the notice and if that party accepts and acts upon it, the party serving the notice will be estopped from denying its validity. The defect in the notice served by one party may undoubtedly be relied upon by the other party and he may plead that the tenancy does not stand determined, but after the notice is accepted by the other party who acts upon it, the party serving the notice cannot contend that the notice served by him was defective, and on that account the tenancy was not determined. The reason of the rule is clear. A tenancy is determined by service of the notice in the manner prescribed by See. 111 (h) read with Section 106 of the Transfer of Property Act. If the notice is duly given, the tenancy stands determined on the expiry of the period of the tenancy. Even if the party served with the notice does not assent thereto, the notice takes effect. If the notice is defective, it does not operate to terminate the tenancy by force of the statute, But a tenancy is founded in contract, and it is always open to the parties thereto agree that the tenancy shall be determined otherwise than by notice served in the manner provided by Section 106 of the Transfer of Property Act, or by a notice of a duration shorter than the period provided by the Act. If the parties so agree, the tenancy will come to an end.
4. I think the above principle would apply even if the recipient of the notice, having accepted and acted upon such notice, seeks to contend that it is invalid, when he has allowed the other party to file the suit for his ejectment and that too when the other party pleaded that the tenancy was according to the English Calendar month, himself did not choose to deny the said plea of the other party. Further even though Ex. A-2 notice is alleged to be defective, no exception was taken to it in Ex.A-3 reply, that means the defendant accepted the notice given. Even Section 106 begins with the words, "In the absence of a contract... to the contrary, such contract to the contrary as per Section 106 was also implied by this Court in Krishnan Servai v. Arulmighu Kaliamman Temple , relying on Ramkumar v. Jagdish . It was also observed therein, "and if the requirement of the notice can thus be waived by an agreement between the parties, it would be reasonable to think that it could also be waived by such conduct as would be evidence of the intention of the parties, In my view, this appears to be the reasonable and the practical construction that could be put on Section 106 of the Act...." [emphasis supplied]. Therefore if the defendant has not taken exception to Ex.A-2 notice while sending the reply Ex.A-3, it is implied that he has agreed to the notice that has been given. Further in Ram Pratap v. Birla Cotton Spinning and Weaving Milk : 2972 Rajdhani L.R. 37 also, where the said notice question was raised 4 years after the parties has proceeded to the trial it was held that plea of want of notice cannot be raised at a late stage of the litigation and the failure to raise the objection at an early stage would mean that the notice has been waived by the tenant.
5. The Privy Council has also held that such notice to quit are to be construed, not with a desire to find faults in them which would render them defective, but to be construed 'utres magis valeat quam percet (vide Harihar Banerji v. Ramsahi Roy (1919)46 Cal. 458, which has also been relied on by Venkata Subba Rao. J. in Gnanaprakaaam v. Vaz 50 M.L.J. 293 : A.I.R. 1931 Mad. 352; 131 I.C. 621. In this later decision also it was observed, "we must give the notice a rational interpretation".
6. No doubt, the learned Counsel for the appellant argued that the waiver question was not at all argued before the courts below, nor it was discussed by the courts below. But this question being a pure question of inference to be drawn on the plea and evidence which are already on record, the respondent is not prevented from raising it in defence, as an additional reason to counteract the argument of the learned Counsel for the appellant and to support the finding reached by both the courts below that the tenancy has been terminated validly. Therefore, I see no reason to interfere and hence the second appeal is dismissed with costs.
7. After the judgment was delivered, the learned Counsel for the appellant requested time for vacating the suit building and the learned Counsel for the respondent also has no objection provided the defendant tenant files an affidavit with an undertaking that he would positively vacate the premises within the said period. Accordingly three months time is granted from this date provided the appellant filed an affidavit within two weeks from today undertaking to vacate the suit building within the abovesaid period positively.