S. Samy vs Valliammal

S. Nagamuthu, J.—The defendant is the appellant. The respondent/plaintiff filed O.S. No. 256 of 1989 on the file of the learned District

Munsif, Udumalpet, for recovery of possession and for rent. The learned District Munsif by decree and judgment dated 12.07.1995, dismissed the

suit. Challenging the same, the respondent/plaintiff filed A.S. No. 75 of 1996 on the file of the learned Subordinate Judge, Udumalpet. The learned

Subordinate Judge, by decree and judgment dated 05.10.1999, allowed the appeal thereby setting aside the decree and judgment of the trial

Court. The First Appellate Court granted three months time for the appellant/defendant to hand over possession to the respondent/plaintiff and in

respect of the arrears of rent, the First Appellate Court gave liberty to the respondent/plaintiff to approach the trial Court to withdraw the rent

which was deposited during trial of the case. Challenging the same, the appellant/defendant has come forward with this second appeal. For the

sake of convenience, in the judgment, the appellant shall be referred to as the defendant and the respondent as the plaintiff.

The case of the plaintiff in short is as follows:-

The plaintiff is the absolute owner of the suit property and the defendant is the tenant. Since, the defendant had fallen in arrears of rent, the plaintiff

issued a legal notice u/s 106 of the Transfer of property Act on 20.03.1989 thereby, terminating the tenancy by giving seven clear days notice. The

defendant sent a reply dated 30.03.1989 wherein, the defendant has stated that the daughter of the plaintiff had filed a suit in O.S. No. 256 of

1989 on the file of the Subordinate Court, Udumalpet for partition and because of the pendency of the said suit, the defendant could not pay rent

to the plaintiff. However, the defendant further stated that he would pay the rent before the Court in O.S. No. 39 of 1989. Thereafter, the plaintiff

filed the present suit.

The case of the defendant in short is as follows:-

It is true that the defendant is the tenant. But, it is not correct that the defendant did not pay the rent regularly. Because, the suit in O.S. No. 39 of

1989 was filed by the daughter of the plaintiff, and since there was a dispute in respect of the right to collect rent between the plaintiff and her

daughter, the defendant could not pay the rent to the plaintiff. The defendant has reiterated that he would pay rent in Court. The notice issued u/s

106 of the Transfer of Property Act is defective inasmuch as 30 days time was not granted. So, the suit is liable to be dismissed.

Based on the above pleading, the trial Court framed appropriate issues. During trial, on the side of the plaintiff, one Natrayan was examined as

P.W. 1. On the side of the defendant, he was examined as D.W. 1. On the side of the plaintiff as many as eight documents were marked as

Exs.A.1 to A.8 and on the side of the defendant, three documents were marked as Exs.B.1 to B.3. Considering both oral and documentary

evidence available on record, the trial Court dismissed the suit however, the First Appellate Court has reversed the same. It is the said decree and

judgment of the First Appellate Court which is under challenge in this second appeal.

While admitting the Second Appeal, this Court has framed the following substantial question of law:-

Whether the Courts below are right in coining to a conclusion that a notice issued under Ex.A.2 is valid under law, particularly when the time

granted is only one week which is against Section 106 of the Transfer of Property Act?

Now let me examine the above said substantial question of law.

The learned counsel for the defendant would rely on a judgment of a Constitution Bench of the Hon''ble Supreme Court in Mangilal v.

Suganchand Rathi (1964 (5) S.C.R. Supreme Court Reports 239) wherein, it has been held that if the notice u/s 106 of the Transfer of Property

Act, is defective in the sense, if the required time is not granted in the notice, then, the lease will not stand terminated and so, the suit for recovery

of possession by the landlord is liable to be dismissed.

Of course ,it was the legal position prior to coming into force of the Transfer of Property Amendment Act, 2002 (3 of 2003). Section 106(3) of

the Transfer of Property Act after the Amendment reads thus:-

106(3). A notice under sub-section (1) shall not be deemed to be invalid merely because the period mentioned therein falls short of the period

specified under that sub-section, where a suit or proceeding is filed after the expiry of the period mentioned in that sub-section.

The said amendment came into force on 01.01.2003. The next question is, whether in respect of pending suits and appeals or any other

proceeding, the newly introduced section 106 (3) of the Act in the place of old Section 106 (3) would be applicable or not. Answer to this

question is readily available in Section 3 of the Amendment Act, which reads as follows:-

3.Transitory provisions:- The provision of Sec. 106 of the Principal Act, as amended by Sec.2, shall apply to-

(a) all notices in pursuance of which any suit or proceeding is pending at the commencement of this Act; and

(b) all notices which have been issued before the commencement of this Act but were no suit or proceeding has been filed before such

commencement.

A glance through the above provision would obviate any doubt regarding the applicability of amended provision in Section 106(3) of the

Transfer of Property Act to the pending suits and other proceedings. In view of the said clear position, though it is alleged in this case that the

notice issued by the plaintiff under Ex.A.2 is defective, in the sense the period specified fell short of the period specified u/s 106, the same would

not invalidate the notice. So, there are no grounds to non suit the plaintiff. Thus, the only substantial question of law raised in the appeal is

answered against the appellant/defendant. Thus, there is no merit in the appeal, appeal fails and accordingly the same is dismissed. No costs.