Arulmighu Kailasanathar Temple 'SAYARATCHA KATTALAI' vs R. Srinivasan

M. Karpagavinayagam, J.—Sayaratchi Kattalai of Arulmighu Kailasanathar Koil, Trichy/plaintiff filed the suit for ejectment and damages.

The suit was decreed in favour of the plaintiff. The defendant filed an appeal before the lower appellate Court, which, in turn, allowed the appeal

and dismissed the suit. Hence, this Second Appeal by the plaintiff/appellant.

The case of the plaintiff is as follows :

The defendant is the tenant of the suit property, which belongs to the temple/plaintiff. The rent, according to Tamil Calendar, is Rs. 200/- per

month. He paid rent up to the end of Iypasi month of Dhunthubi year. The defendant committed default in payment of rent for the months of

Karthigai, Margazhi and Thai of Dhunthubi year. The default is wilful. Furthermore, the suit property has not been properly maintained. Therefore,

it is damaged beyond repairs and at any moment, the building may be collapsed. Hence, the plaintiff terminated the lease from the month ending

with 30th Thai vide a notice dated 24.01.1983. The defendant received the notice on 25.01.1983. There was no reply. Hence, the suit for

possession of the premises and damages.

According to the defendant, entire rent was paid through a draft dated 25.01.1983. Therefore, there is no default. It is not correct to contend

that the building got damaged and it may collapse at any moment. The plaintiff demanded the defendant to pay higher rent, for which the defendant

declined. Therefore, with false allegations, the suit has been filed.

On the above pleadings, necessary issues were framed. The trial Court, though would hold that entire arrears have been paid during the

pendency of the suit, decreed the suit in favour of the plaintiff, holding that notice u/s 106 of the Transfer of Property Act is valid and as such, the

lease has been terminated and that the contention of the defendant that a fresh lease has been entered into between the parties has not been

established. Aggrieved by the same, the defendant filed an appeal before the lower appellate Court. The lower appellate Court, while allowing

appeal, would hold that there were no arrears of rent and the suit has been filed by the plaintiff since the enhanced amount of rent was not

accepted by the defendant and, however, in the Court, the defendant as D.W.1 would agree to pay the enhanced rent of Rs. 800/- per month and

consequently, on the basis of a fresh agreement, the defendant was permitted to be in possession of the suit property and therefore, notice u/s 106

of the Transfer of Property Act is not valid and therefore, the suit is liable to be dismissed. Hence, this Second Appeal.

At the time of admission, the following substantial questions of law were formulated by this Court by order dated 07.12.1990 :

i)Whether the lower appellate Court was right in holding that the notice issued u/s 106 of the Transfer of Property Act under Ex.P-12 was not in

accordance with law ?

ii)Whether the lower appellate Court was right in accepting the case of the respondent that he was prepared to pay enhanced rent of Rs.800/- per

month not pleaded in the written statement ?

After service of notice, counsel for the respondent had entered appearance and the matter came up for final disposal on 18.07.2002. At that

time, counsel for the appellant as well as the respondent were absent. Therefore, the matter was directed to be posted for dismissal on

23.07.2002. When the matter was again taken up on 23.07.2002, counsel for the appellant sought time for filing typed set. Therefore, it was

posted on 30.07.2002. Again, on 30.07.2002, at request, the matter was adjourned to 06.08.2002. On these hearings, counsel for respondent

was absent. On 06.08.2002, counsel for the appellant alone was present and counsel for the respondent, as usual, was absent. Therefore, this

Court was constrained to hear the arguments of the counsel for the appellant and post the matter for judgment.

This is a case where the plaintiff filed a suit for ejectment. Both the Courts below would hold that the suit is maintainable and the tenancy

agreement between the plaintiff and the defendant was on the basis of the monthly rent according to Tamil Calendar. Though the defendant stated

in the written statement that the tenancy was not according to Tamil Calendar but English Calendar, the letters sent by defendant dated

19.11.1982, Ex. A-3, and 29.11.1982, Ex. A-4, would show that he had admitted that it was based upon Tamil Calendar only and he paid rent

up to Iypasi month of Dhunthubi year. Since the rental arrears for the months of Karthigai, Margazhi and Thai of Dhunthubi year were not paid in

time, the plaintiff sent a notice, Ex. A-12 dated 24.01.1983, u/s 106 of the Transfer of Property Act, terminating the tenancy ending with 30th of

Thai, Dhunthubi year, and asking him to quit. This notice, Ex. A-12, has been received by the defendant through the acknowledgement Ex. A-13

dated 25.01.1983. The issuance of notice and receipt of the same have not been challenged by the defendant. There is no material to show that the

notice dated 24.01.1983 has been replied by the defendant. On the other hand, the defendant would simply state that he sent a draft dated

25.01.1983 to the plaintiff. But, the plaintiff would state in the deposition that he did not receive any reply from the defendant and the rental

amount, which was sent to him through money order, was returned to the defendant. The trial Court would state that, even though there is no

evidence through the plaintiff to show that the amount was received, it was argued by the plaintiff''s lawyer that during the pendency of the suit, the

rental arrears were paid. But, however, the trial Court, even though the arrears have been cleared during the pendency of the suit, would hold that

notice u/s 106 of the Transfer of Property Act is valid, as the plea of the defendant made during the course of cross-examination that a fresh lease

was entered into between the parties for the monthly rent of Rs. 800/- has not been established. But, this finding has been set aside by the lower

appellate Court, accepting the case of the defendant that notice u/s 106 has become invalid, in view of the fact that defendant was allowed to

occupy the premises, since the arrears were cleared and a fresh lease was entered into between the parties for the monthly rent of Rs.800/-.

Challenging the said finding, learned counsel for the appellant, on the strength of 2001 (1) CTC 438 (M.Muthu (died) and four others v.

Arulmigu Sundareswarswamy Devasthanam, rep. by its Executive Officer, Kovur (via), Mangadu), would contend that merely because the rents

have been subsequently received by the plaintiff during the course of trial in the suit, it cannot be said that the notice u/s 106, terminating the lease,

which has been issued earlier, becomes invalid, unless it is established that there was an intention on the part of the landlord to create a fresh lease

or for the continuation of the earlier lease.

When I go through the said decision, it is clear that facts of that case would squarely apply to the facts of the present case. On the date of the

suit, admittedly, arrears have not been cleared. The notice Ex. A-12 would reveal that the defendant defaulted in his payment of three months''

rent, namely, Karthigai, Margazhi and Thai of Dhunthubi year and the notice of termination dated 24.01.1983 was received by him on

25.01.1983.

It is held by this Court that ""the waiver of notice u/s 113 of the Transfer of Property Act has to be established by showing two ingredients,

namely, (1) the express or implied consent of the person to whom the notice was given is necessary to say that the notice is waived and (2) In so

far as the person who gives the notice, there must be an act by the person, who gives the notice showing the intention to treat the lease as

subsisting. Once a valid notice to quit has been served, the lease automatically comes to an end on expiration of the period of such notice. It is

open to the parties by an agreement expressed or implied to create new tenancy on expiration of the one or continue old lease and treat it as

subsisting. But, to establish waiver of notice on the part of the person giving it, there must be evidence of intention to treat the lease as subsisting.

The inference that there was an intention of creating renewal of tenancy or treating the tenancy as still subsisting is a question of fact to be

determined in each case.

In the light of the above principles, if we look at the facts of the present case, it is manifest that it was not established that there was an intention

on the part of the person, who gave notice to create new tenancy or to continue the tenancy, which was earlier entered into. As a matter of fact,

D.W.1 / defendant never adduced any evidence to establish that a fresh tenancy was created between the parties. Furthermore, on 02.02.1989,

when he was cross-examined, he never stated that a fresh tenancy was created. But, he was recalled again on 27.03.1989 and only on that day,

he stated that there was a fresh tenancy created between the parties, thereby he agreed to pay Rs. 800/- per month from 01.03.1989. This aspect

also was cross-examined by the learned counsel for the plaintiff. The defendant, during the course of cross-examination, would state that no written

agreement was entered into between the parties. Under those circumstances, the notice cannot be said to have been waived and, as such, it has to

be treated as a valid one, as held by the trial Court. The lower appellate Court, without any evidence, would hold that the suit was filed by the

plaintiff merely because the enhanced rent was not agreeable by the defendant. Hence, the substantial questions of law formulated in this case have

been answered in favour of the plaintiff.

Second Appeal stands allowed. Consequently, the judgment and decree of the lower appellate Court is set aside and the judgment and decree

of the trial Court is restored. No costs.