Madras High Court
A.M. Ramakrishnan vs Madurai Virudhunagar Nadargal ... on 30 June, 2003
Equivalent citations: (2003)3MLJ330
Author: A.K. Rajan
Bench: A.K. Rajan
JUDGMENT A.K. Rajan, J.
1. Defendant in O.S. No. 1092 of 1994 on the file of III Additional Subordinate Judge, Madurai is the appellant herein.
2. The appellant herein is the tenant of the respondent's property. Originally the property was rented out for running a hotel. But the tenant/defendant started running wine shop and, therefore, the suit was filed earlier for cancellation of his lease and recovery of possession and that suit was dismissed as withdrawn on the ground that subsequently, the liquor shop was removed.
3. Once again the tenant/defendant started running liquor shop after two years and hence, the lease was sought to be terminated. Thereafter, the respondent/plaintiff filed the suit for recovery of possession. On the basis of the evidence adduced, the trial Court decreed the suit as prayed for. Against the said judgment and decree, the defendant filed an appeal in A.S. No. 47 of 1999 before the District Judge, Madurai who in turn confirmed the judgment and decree of the trial Court. Against which, the defendant has come forward with the above second appeal.
4. Mr. K. Srinivasan, learned counsel appearing for the appellant would submit that the plaintiff/respondent is not the owner of the property and therefore, the plaintiff has no right to file the suit. According to him, the property belongs to Chidambaram Magamai Fund. The above argument of the learned counsel for the appellant is not acceptable.
7. Admittedly, the property was leased out only by the plaintiff and even in the sale deed it is referred to as for the benefit of the Chidambaram Magamai fund the property was purchased by the plaintiff association. Therefore, it is futile on the part of the appellant/defendant to contend that the property does not belong to the plaintiff/respondent. Further, when the tenant got the property for rent under the plaintiff, subsequently he cannot turn round and say that the landlord is not the real owner and that is the sufficient ground to terminate his tenancy.
8. Further, learned counsel would further submit that notice of termination was not properly given and therefore, the notice was invalid and hence, the termination of lease is not legal and hence, the decree is liable to be set aside.
9. From the records it is seen that notice has been sent by registered post and it was not claimed by the appellant herein. That is to say, that the registered notice sent was not received in spite of intimation given by the postal department. Subsequently, the same notice had been sent by certificate of posting. From the notice it is clear that tenancy had been validly terminated by issuing a notice in accordance with the Transfer of Property Act.
10. To substantiate the contention that notice has not been properly served, learned counsel appearing for the appellant has relied upon the decision of this Court in Doraipandian Pillai v. M.S. Sivagnanam Pillai reported in 1970 (II) MLJ, 242. In this case notice sent to the tenant was returned with an endorsement not found. While interpreting this, the Court has held that it cannot be presumed as 'refused' when properly tendered, he will be credited with the knowledge of the contents of the notice, if the letter is returned as 'refused' a presumption can be drawn that it was duly tendered to the addressee and that he refused to take delivery of it.
11. But in the present case, the notice has been sent properly terminating the lease. The argument of the learned counsel for the appellant is that the notice sent by registered post was not received by him; Since the notice was not received by him, it was not served on him; Therefore, there is no proper notice of termination. But it is to be seen that the notice had been sent by registered post. At the time when the postman went to serve notice, the addressee/appellant presumably was not there. Therefore, the postman left the intimation that a registered post has been received and the addressee/appellant may come and collect the same from the office, in accordance with the postal rules. But the addressee, after the receipt of this intimation, deliberately failed and neglected to receive the registered post. Therefore, in the circumstances, it must be presumed that the addressee/appellant has knowledge of this notice. Therefore, the notice is deemed to have been served on the addressee/appellant. Merely because, when the notice was sent by registered post, the addressee deliberately avoids receiving the same, it cannot be said that notice has not been served. Even in the judgment cited supra it is held that if the tenant or landlord deliberately avoids receipt of notice properly tendered, he will be credited with knowledge of the contents of the notice. Therefore, it is clear that notice has been properly tendered, when the intimation was given, and the tenant deliberately avoided the receipt; thus the notice has been served and the tenancy has been properly terminated.
11. Both the Courts have found that the notice of termination has been properly served on the appellant/defendant. Therefore, the argument of the learned counsel appearing for the appellant is not acceptable.
12. Both the Courts below have correctly come to the conclusion that there is valid termination of the lease and the plaintiff is entitled for recovery of possession. There is no illegality in the judgments of the Courts below. The appeal fails and is devoid of merits and is liable to be dismissed.
In the result, the second appeal is dismissed. Consequently, connected C.M.P. is also dismissed.