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Judgment
The defendant in the suit is the appellant. The Plaintiff filed a suit for eviction of the defendant from the plaint schedule property and for recovery of an amount of Rs. 233/- towards rent or damages for use and occupation of the suit site. The plaintiff''s case is that a vacant site was leased out to the defendant on a rent of Rs. 50/- per month, that the plaintiff issued a notice on 16-1-1978 terminating the tenancy and, therefore, he filed the suit.
The defendant resisted the suit by raising various contentions. The first contention is that the Lessor was the plaintiff''s father, but not the plaintiff and so, the plaintiff has no locus standi to file the suit. The second contention is that the property that was leased out is not a vacant site, but it is a building within the meaning of Rent Control Act as there was a structure therein when the property was leased out. The third contention is that the notice to quit issued u/s 106 of Transfer of Property Act is not a valid notice to quit. The trial Court rejected all the contentions of the defendant and decreed the suit. Against that, the defendant preferred an appeal. The Appellate Court also upheld the findings of the trial Court and dismissed the appeal. Therefore, the Second Appeal is filed by the defendant.
On the first question, whether the lessor is the plaintiff or his father, it is stated that the property belongs to the joint family and subsequently, it was allotted to the share of the plaintiff. Both the Courts below have held that the plaintiff is the lessor and so he has locus standi to file the suit, and that being purely a question of fact on which concurrent findings have been given by both the Courts below, it cannot be interfered in this Second Appeal.
The second question is whether the property that was leased out is a vacant site or whether there was a structure in it by the time the property was leased out? If there was a structure, it comes within the scope of the Rent Control Act in which case the Civil Court will not have jurisdiction and the plaintiff will have to file a petition before the Rent Controller. In the trial Court, an Advo- cate-Commissioner was appointed to see whether there was any structure in the site and he reported that there was some structure. The trial Court held that the structure must have been put up just before the Advocate-Commissioner''s visit to the suit property. But the learned Appellate Judge held that the structure must have been put up earlier to the visit of the Advocate-Commissioner, but some time after the property was leased out. Both the Courts below have given a concurrent finding of fact that the property that was leased out is a vacant site and there was no structure in it at the time where it was leased out. Since a concurrent finding was given by both the Courts below on the question of fact that the property which was leased put is a vacant site, this Court cannot interfere with that finding in this second appeal
The important question of law that has been raised in this Second Appeal is, whether the quit notice issued by the plaintiff u/s 106 of Transfer of Property Act is valid or not? The plaintiff issued a telegraphic notice which is marked as Ex. A-4 dated 16-1-1978 to the defendant terminating the tenancy. To that, the defendant sent a reply marked as Ex, A-3 dated 17-1-1978. Earlier to that, the plaintiffs father issued notice, Ex. A-1 dated 4-2-1977. But that was not received by the defendant. But the father of the plaintiff did not file the suit. Even though under that notice tenancy is said to have been terminated by the end of February, 1977, the tenant was continued and so, he is a tenant holding over u/s 116 of Transfer of Property Act and he is entitled to a notice u/s 106 of T.P. Act. Now the question that has to be decided is, whether the telegraphic notice, Ex. A-4 dated 16-1-1978 issued by the plaintiff is a valid notice given u/s 106 of Transfer of Property Act or not? Section 106 of Transfer of Property Act reads as follows :
"In the absence of a contract or local law or usage to the contrary, a lease of Immovable property for agricultural or manufacturing purposes shall be deemed to be a lease from year to year, terminable, on the part of either. lessor or lessee, by six months'' notice expiring with the end of a year of the tenancy; and a lease of Immovable property for any other purpose shall be deemed to be a lease from month to month, terminable, on the part of either lessor or lessee, by fifteen days'' notice expiring with the end of a month of the tenancy."
In this case, the lease is not for agricultural or manufacturing purposes. So, it is a lease from month to month, terminable by fifteen days'' notice expiring with the end of a month of the tenancy. The second para of Section 106 of Transfer of Property Act reads, that every notice under this Section must be in writing, signed by or on behalf of the person giving it, and either be sent by post to the party who is intended to be bound by it or be tendered or delivered personally to such party, or to one of his family or servants at his residence etc., or affixed to a conspicuous part of the property. So, it requires three things, (1) the notice must be in writing; (2) it must be signed by or on behalf of the person giving it; and (3) it must be sent by post to the party or delivered personally to such party etc., or affixed to a conspicuous part of the property. In this case as I have already referred to above, the notice is sent by telegram. It was recieved by the defendant. But the telegram which is recieved by the defendant does not bear the signature of the plaintff. In those circumstances, can it be said to be a valid quit notice. The learned counsel for the appellant has referred to a decision of the Madras High Court, in Gnanamuthu Vs. Most Rev. Justin Diraviam, , wherein also in quit notice was sent by telegram. It was held that
"The section makes it clear that the notice reaching the party must contain the signature of the person giving the notice or his agent. In the case of telegraphic notice, it is true that as it was tendered to the Telegraphic Office the telegram must have contained the signature of the party giving it or his agent. But the copy received by the tenant did not contain the signature. The name of the sender was only typewritten. The notice suffers from infirmity and is not valid."
The learned counsel for the appellant has also referred to a decision of the Supreme Court in Shri Mandir Sita Ramji Vs. Lt. Governor of Delhi and Others, . That was a case under the Land Acquisition Act. But the Supreme Court has pointed out that :
"When a procedure is prescribed by the Legislature, it is not for the Court to substitute a different one according to its notion of justice."
In this case, since the telegraphic notice, Ex. A.4 sent to the defendant does not contain the. signature of the plaintiff, it certainly, does not satisfy the requirements of S. 106 of Transfer of Property Act, But the learned Counsel ''for the respondent (plaintiff) has argued that the defendant having received it, had sent a reply, Ex. A.3 and, therefore, the cannot contend that it is no.t a valid notice. The Lower Appellate Court has observed in para 16 of its Judgment that "when once the appellant i.e., the defendant has accepted such telegraphic notice and has a!so given a reply, it goes out without saying that he has no grievance about the form of notice issued". He further stated that haying issued a reply notice he is estopped from contending that such notice, was not valid. But as rightly contended by the learned Counsel for the appellant that there cannot be estoppel against the statute and when Section 106 of Transfer of Property Act prescribed a mode in which a notice has to be given, the plaintiff cannot contend that merely because the defendant has chosen to give a reply, he is estopped from contending that the notice is not valid. In the case reported in the The Metal Press Works Ltd. Vs. Guntur Merchants Cotton Press Co. Ltd., , a Division Bench of this Court has pointed out that :
"The failure or omission on the part of the lessee to reply to the defective quit notice is not a valid ground to constitute or infer waiver on the part of the lessee. The lessee can as well ignore a defective or invalid notice."
When the lessee can ignore a defective notice, does it make any differenc if he chooses to give reply. As I have already stated to above, merely because the defendant sent a reply, he is not estopped from contending that the quit notice is not valid. I am, therefore, unable to accept the contention of the learned Counsel for the respondent (plaintiff) that since the defendant has sent a reply to the telegraphic notice issued by the plaintiff, he cannot contend that the notice is not valid. I agree with the contention of the learned Counsel for the appellant that since the telegraphic notice, Ex. A.4 is not signed by the plaintiff, it does not satisfy the requirements of S. 106 of Transfer of Property Act and therefore, it js not a valid quit notice.
The learned Counsel for the appellant has also contended that the plaintiff, haying received the rent after issue of notice, has waived it. In view of my finding that there is no valid quit notice under S. 106 of Transfer of Property Act, it follows that the plaintiff''s suit must have been dismissed.
The Second Appeal is, therefore, allowed and the suit filed by the plaintiff is dismissed. But as the defendant succeeded purely on a question of law, the parties'''' are directed to bear their own costs throughout. If the plaintiff (respondent) is so advised, he is at liberty to file a fresh suit after complying with the requirements of S. 106 of Transfer of Property Act.
Appeal allowed.