Sri Kothandaramaswamy Devasthanam vs Gopal Naidu and another

K.M. Natarajan, J.—The unsuccessful plaintiff in O.S. 14/78 before both the forums below has preferred this Second Appeal. The Plaintiff

filed the suit for recovery of possession and for damages for use and occupation on the allegation that the Plaintiff-Devasthanam is the owner of the

suit site and that the 1st defendant has taken on lease the said site under a registered rental deed dated 19.12.1960 for a period of five years. The

1st defendant, without the consent of the plaintiff, mortgaged the property to one Muthukumarasami, father of the 2nd defendant, contrary to the

contents of the lease deed. Hence he is liable to be evicted from the premises by reason of forfeiture. A notice was issued to the Plaintiff on

22.7.1977 to the defendants calling upon them to deliver possession of vacant site, to which the defendants sent a reply dated 1-8-1987 with

incorrect particulars. Hence the suit.

The said suit was resisted by the 1st defendant and in the written statement it is contended that though the Plaintiff is the owner of the suit site

and it has been leased out to the 1st defendant under the rental agreement dated 19.12.1960, the Plaintiff Devasthanam is estopped from

questioning the sublease or mortgage in favour of the 2nd defendant. The notice to quit is not in accordance with the provisions of the Transfer of

Property Act and hence he is not liable to be evicted. He is also entitled to the benefits of the Tamil Nadu City Tenants Protection Act, as he has

put up the superstructure about 30 years ago, spending Rs. 10,000/- In any event, he is entitled to compensation of Rs. 10,000/- under S. 3 of the

City Tenants Protection Act, which has been extended to Chingleput on 13.1.1973.

The 2nd defendant, in his written statement, contended that the plaintiff came to know about the mortgage and possession of the 1st defendant

only recently is denied. The same was known to them from 1964 onwards. The mortgage is not in violation of any of the conditions of the lease

deed, and as such, he is not liable to be evicted from the premises, nor liable to pay any damages.

The learned District Munsif, after joint trial of the suits in O.S. 211 of 1977 (a suit filed by D-1 against D-2 for recovery of possession and

damages) and this suit O.S. 14 of 1978, dismissed both the suits by a common judgment. No appeal was preferred against the decision in O.S.

211 of 1977, while the plaintiff-Devasthanam preferred an appeal in A.S. 124 of 1980 against the Judgment in O.S. 14 of 1978. The appellate

judge also dismissed the appeal with costs and confirmed the Judgment of the trial court. Aggrieved by the same, this Second Appeal has been

filed and it was admitted on the following substantial question of law;

Whether the courts below were wrong in considering the question whether the suit without notice under. S. 11 of the City Tenants Protection Act

was not maintainable, in the absence of any pleading to that effect.

The Learned Counsel for the appellants. Mr. N.S. Varadachari, mainly submitted that the Tamil Nadu City Tenants Protection Act 1921 was

originally passed to give protection to the tenants of land belonging to others for a long period and who have put up buildings on the land in the

hope that they would not be evicted from the land Further, it was made applicable to the tenancies created before the commencement of the parent

Act, 1922. The Act was made applicable for the first time only to the city of Madras. In 1955, an amendment was made by Act 19 of 1955. By

this amendment, the qualifying date for the tenants to claim the benefit of the Act was extended to 12.9.1955 from the original dated 21.2.1922.

By virtue of this amendment, the tenancies which came into existence prior to 12.9.1955 became entitled to get protection from eviction, provided

the tenants have constructed a building on the lease land before the said date. The applicability of the Act was extended not only to the tenants in

the city of Madras but also to certain adjoining areas and to Municipal Town in the stale, as the government may notify from time to time. By G.O.

Ms. No. 49, Revenue, dated 8.1.1973 S. 1 of the Tamil Nadu City Tenants'' Protection Act of 1921 has been extended to the Municipal towns

which include Chingleput Municipal Town with effect from 31.1.1973. The subject matter of the suit property is situate within the limits of

Chingleput Municipality. The extension of the Act by virtue of the above G.O. Ms. No. 49, Revenue, dated 8.1.1973, was only on 31.1.1973 to

Chingleput Town. According to the Learned Counsel, the ex tension will mean when the Act shall apply from the date notified in the G.O., namely

31.1.1973 and the protection to tenancies of the land prior to 12.9.1955 was extended.

In the instant case, the lease is admittedly in the year 1960. On the date when the suit was filed in 1978, the Act as amended by Act 19 of 1955

was not applicable as the tenancy was not prior to the date of the amendment of the Act, namely, 12.9.1955. Hence, no right is to be claimed

under the Act as amended by Act 19 of 1955. The G.O. extending the Act, as it is, will not give any right to the tenant nor could it be said that

since the extension of the provisions of the Act is on 31.1.1973, the tenant of the land prior to 1973 will be entitled to right.

Per contra, the Learned Counsel for the respondents would submit that it will apply to the tenancies prior to the date of the notification, namely

31.1.1973 and as per the amended provision it cannot be said that it was applicable only to tenancies which commenced prior to 12.9.1955. To

rebut the said contention the Learned Counsel for the appellant would submit that if such a contention is accepted, it would mean that the tenants in

Chingleput prior to 1973 would get the right while the tenants in Madras would get the right only if the tenancy of the land is prior to 1955.

Therefore, admittedly, on the date of the suit in 1978, the first defendant cannot claim the benefits of the Tamil Nadu City Tenants Protection Act

of 1921 as amended by Act 19 of 1955. The Learned Counsel reiterated that the benefits conferred under the Act would be available to the

tenants of land prior to 12.9.1955 in respect of the tenants of land in Chingleput. When the Act was extended to Chingleput area, it will only mean

that the Act was extended to Chingleput area only from 31.1.1973. By no stretch of imagination could it be said that the tenants of land in

Chingleput prior to 1973 will get the benefit. According to the Learned Counsel since the entire Act was extended, to claim the benefit the tenancy

should be prior to 12.9.1955 as there was no change in respect of the same. On a careful reading of the relevant provisions, there is every force in

the contention of the Learned Counsel for the appellant in this regard. Even though the entire Act was extended to the Municipal Town of

Chingleput, yet to claim the benefit under the Act, the tenant has to satisfy that the tenancy came into existence prior to 12.9.1955, the date

specified under the Act.

It is to be noted that the suit was filed in the year 1978 as O.S. No. 14 of 1978. During the pendency of the suit, the Amending Act 2 of 1980

came into force. By virtue of the Amending Act of 1980, the tenant could have exercised rights by filing a petition under S. 9 of the Act. Since the

suit was pending, S.11 notice will not be necessary in case where the proceedings are pending on the date of the commencement of the amended

Act. In this connection, the Learned Counsel for the appellant drew the attention of this Court to the decision reported in J. Abdul Shukur Sahib v.

Geethammal 1977 T.L.N.J. 125 wherein Balasubramaniam, J., while observing that no notice is necessary under S. 11 in respect of pending suit,

observed as follows :-

S.10 had been put into the Act expressly for the purpose of enacting what provisions in the Act were to apply even to pending proceedings. Since

S.10 omitted to mention S. 11, the obvious inference must be that it was not intended to apply to the pending proceedings.

The learned Judge observed:

But quite apart from the circumstances that S. 10 does not expressly apply to S.11 pending suits, it would be seen that the subject matter of S.11

itself is of such nature that it is incapable of being applied to pending suits, that is to say suits pending as on the date of coming into force of the

Section.

The leaned Judge further observed:

The idea behind the section is accurately described by its marginal note ''Notice before institution of suits or applications against tenants.'' The

section deals with a stage to the filing of the suit in ejectment, not with a stage anterior subsequent to its filing. On the day the section came into

force in any area, whatever the date is, the section would seem to address itself to the future. ""From now on"" the section seems to be saying. ""Let

there be no eviction of a tenant under the general law relating to landlord and tenant. Let there be notice to him. Let the notice be in such and such

terms. Let there be a period of wait for atleast three months. Only afterwards, if so advised, may the landlord sue his tenant in ejectment"" On this

understanding of the section, it is, I think reasonable to hold that it is intended to apply prospectively only to future suit notices.

Applying the ratio in the above decision, the question of want of notice under S.11 or waiving the same does not arise.

In the instant case, admittedly the tenant has not filed any petition under S.9 of the Tamil Nadu City Tenants Protection Act, invoking the right to

purchase the land. On a perusal of the Judgment of the trial Court, it is seen that the matter was not approached in the light of the above discussion.

But, as rightly contended by the Learned Counsel for the appellant, this being a legal proposition this Court can certainly go into the question

whether S.11 notice is necessary especially when the tenant did not exercise his right under S. 9 of the Tamil Nadu City Tenants Protection Act.

The Learned Counsel for the appellant also submitted that even assuming that S. 11 notice is required, waiver of the notice is also possible in

the circumstances of the case and that it can be inferred. In this connection, the Learned Counsel for the appellant drew the attention of this Court

to the judgment reported in Balasubramania Iyer v. S.P. & Muthu Kumaraswamy Devasthanam 1983-1-M.L.J. 280 wherein G.Ramanujam, J.

held as follows;-

Though a lessee is not entitled to claim the benefits under S. 9 of the Tamil Nadu City Tenants Protection Act still he will he entitled to

compensation under S. 3 for any superstructure he might have erected on the property and has been ejected. Admittedly in this case no notice

under S. 11 of the Act had been issued and a notice of termination of the tenancy as contemplated under S. 106 of the Transfer of Property Act,

alone has been issued. If the appellant was a tenant coming within the scope of the Act, it cannot be said that he is not entitled to the benefits of

S.11. However on the facts of this case the defendant should be deemed to have waived the notice by his conduct. There was a notice terminating

the tenancy and there was a reply. In the reply the defendant never raised the plea that he was entitled to a notice under S. 11 of the City Tenants

Protection Act and the notice issued under S. 106 of the Transfer of Properly Act was invalid. Even in the written statement the defendant did not

taken up the plea that the suit is not maintainable in view of the lack of notice under S. 11 of the Act. Besides neither in the trial court nor in the

lower appellate court he has raised the plea that the suit is not maintainable for non-issue of notice under S.11. This conduct of the defendant will

lead to the inference of waiver on his part. Waiver is a question of fact and since there has been a waiver on the part of the defendant, the present

suit will lie without compliance of S.11 of the Act.

In the instant case, admittedly in the written statement the defendant has not contended that the notice under S.11 is necessary. What all he has

stated is that the notice to eject him is not in accordance with the provisions of the Transfer of Property Act. It is significant to note that though he

has stated that he is entitled to compensation under S.3 of the Act and that he has a right to purchase the site at the rate of Rs. 300/- per cent, yet

he has not raised the plea that the suit is not maintainable for want of notice under S.11 of the Act. The conduct on the part of the defendant clearly

shows that he has waived the right of notice under S.11 of the City Tenants Protection Act. The reasoning given by the lower court that there

cannot be any waiver as there cannot be any estoppel against the statute is not tenable in the face of the decision of this Court'' which has been

extracted already. Waiver can be found out only through the pleadings of the defendant and his conduct. The Learned Counsel for the respondent

relied on the decision in Rao Bahadur V. Ranganatham Chettiar and Others Vs. Mariappa Mudali and Others, wherein it was held:

S.11 of the Madras City Tenants Protection An is mandatory and imposes an unqualified obligation upon the Court not to entertain a suit in

ejectment in the absence of compliance with its provisions. The fact that the applicability of the Act to the case was itself being challenged makes

no difference.

That notice under S.11 is necessary is not in dispute. The questions whether it is applicable to the tenant of a pending suit and whether there was

waiver are all matters to be decided on facts and circumstances of each case. Hence that decision is not helpful to the case of the respondent in the

instant case.

Next it was submitted by the Learned Counsel for the appellant that since admittedly the first defendant has sublet the premises to the second

defendant, he is not entitled to the benefits under Act 2 of 1980 as he is not a tenant in possession. In this connection, the Learned Counsel for the

appellant drew the attention of this Court to the decision reported in Estate of Estate of T.P. Ramaswami Pillai Vs. A. Mohd Yousfuf and Others,

and submitted that this view was affirmed in later decisions including the decision of the Supreme Court in Ananthakrishnan Nair, P. v. Dr. G.

Ramakrishnan 100 L.W. 1093 wherein it has been observed that the tenant who has sublet the properly and who is not in possession and not

carrying on any business in the business premises and remaining ex parte is not entitled to claim the right under S. 9. It was further held:

The Trial court as well as the appeal Court have recorded findings that the land in dispute and the superstructure has been in occupation of sub-

tenants since 1964. In view of these findings the High Court refused to interfere with the orders of the Trial Court as confirmed by the Appeal

Court. Having regard to these findings and the nature of the tenants right to purchase land under S.9 being equitable in nature, it would be

unreasonable to direct the landlord to sell the land to the tenants. The facts and circumstances available on record show that the tenants do not

require the land for their convenient enjoyments, therefore, it would be inequitable to direct the landlords to sell the property to the tenants.

It is matter of common knowledge that price of land, specially in the urban areas has escalated to a great extent and it would not be fair to deprive

the landlords of their properly and to allow the tenants to enrich at the landlord''s expense. The law does not intend that the tenant should enrich at

the instance of the landlord even though the tenants do not require the land for their convenient enjoyment.

It is seen that by virtue of the above decision the tenant is not entitled to ask for sale of the land in question under S. 9 of the Act. But, it does

not mean that he is not entitled to claim compensation under S. 3 of the Act. However, in view of the findings already recorded that since the

tenancy came into existence only after 1955, that is, in the year 1960, the tenant is not entitled to get benefit of any of the provisions. Even by

virtue of amended provision of Act 2 of 1980 the first defendant is not entitled to compensation also. No evidence was also adduced with regard

to the compensation. For all these reasons, to answer the substantial question of law in favour of the appellant and as against the respondent and

hold that the suit is not barred by the absence of notice under S. 11 of the Tamil Nadu City Tenants Protection Act. In the result, the second

appeal is allowed in part the judgment and decree rendered by the Courts below are set aside and there will be a decree for ejectment in favour of

the appellant alone. However, in the circumstances of the case there will be no order as to costs throughout.