T. Mayerulan Nadar vs K. Jayalakshmi Ammal

Abdul Hadi, J.—The plaintiff in O.S. No. 2976 of 1977 on the file of I Assistant Judge, City Civil Court, Madras, is the appellant in this

second appeal. He filed the said suit against the respondent herein for possession of the suit property and for arrears of rent and damages for use

and occupation. Though the trial Court decreed the suit in the first appeal filed by the respondent, viz., A.S. No. 134 of 19823 on the file of VI

Additional Judge, City Civil Court, Madras, the suit has been dismissed. While the first appeal was pending, the respondent also filed C.M.P. No.

5 of 1982 u/s 9 of the Tamil Nadu City Tenants Protection Act (hereinafter referred to as ''the Act'') for purchasing the suit land on the ground that

pursuant to ""the amending Act"" (which was not specified) she became entitled to the protection under the Act. However, since there was delay of

770 days in filing the said C.M.P. No. 5 of 1982, she also filed C.M.P. No. 550 of 1982 for condoning the said delay. Further, she also filed

C.M.P. No. 551 of 1982 for raising additional grounds of appeal on the ground of the amendment of City Tenants Protection Act"" (here again the

alleged amendment was not specified). In the said additional grounds, it is claimed that by virtue of the amendment ""the tenancies of the land in

which the tenants have put up the superstructure prior to the publication of Tamil Nadu City Tenants Protection Act"" have the ""benefits thereon

and the suit having been filed without complying with Section 11 of the said Act, has no dismissed. All the above C.M.Ps. have been filed on

20.3.1982.

The first appeal as well as the C.M.Ps. were taken up together by the lower appellate court and by a common judgment, it allowed the

abovesaid C.M.P. No. 551 of 1982 and sustaining the abovesaid additional ground raised pursuant to Section 11 of the Act, held that before filing

the suit, notice as per Section 11 of the Act, was not given and hence the suit itself was not maintainable. Thus, while dismissing the suit, it allowed

the first appeal. However, it dismissed C.M.P. Nos. 5 and 550 of 1982. Aggrieved by the said judgment in so far as it allows C.M.P. No. 551 of

1982 and A.S. No. 134 of 1982, the plaintiff has preferred this second appeal.

Three submissions are made by learned counsel for the appellant:

(1) In the entire written statement, the defendant''s claim is that she has become owner of the suit land, no doubt, pursuant to sale agreement dated

14.8.1974 executed by the plaintiff in favour of the defendant and the mutual agreement between the parties that the plaintiff would be treated as

purchaser of the suit land, having paid over 75% of the sale consideration under the said sale agreement and that no rent need be paid by the

defendant. So, according to the said learned counsel, there is denial of title by the defendant-tenant and that hence the abovesaid entire Act is not

applicable to her including Section 11 thereof In this connection, he relies on certain decisions, including Boologanathan Vs. P. Govindarajan and

Others, .

(2) Even assuming that the Act and particularly Section 11 thereof is applicable, there is actually a waiver of notice u/s 11 by the defendant in view

of her filing of the above referred to C.M.P. No. 5 of 1982 u/s 9 of the Act. In this connection he relies on Vedachala Naicker Vs. P.K.

Duraiswami Mudaliar, .

(3) The lower appellate court ought not to have allowed C.M.P. No. 551 of 1982 and allowed the respondent to raise additional ground of

appeal, claiming that the suit itself is not maintainable since that abovesaid Section 11 notice was not given. His argument is that in the written

statement, there was no requisite plea at all and that while so, when she has not chosen to amend the written statement for setting up the requisite

new plea, the lower appellate court could not have allowed the abovesaid additional ground. Learned counsel also points out that possession also

had already been taken through court on 20.1.1982 pursuant to the decree of the trial court.

On the other hand, learned counsel for the respondent made the following submissions:

(1) In relation to the above referred to first submission of learned counsel for the appellant, apart from the contending that the claim made in the

written statement was only based on the abovesaid sale agreement, that since the sale deed has not been executed, the defendant cannot be said to

have become owner of the property, he also relied on Sundararajan v. Sundaramoorthy, 1993 1 L.W. 569, to contend that where the defendant

had given up his original case and accepted the position that she was only a tenant by filing the above referred to C.M.P. No. 551 of 1982 and the

subsequent raising of the above referred to additional grounds on the footing that she was a tenant, it cannot be said that the abovesaid Act is not

applicable to her.

(2) Regarding the above referred to second submission of learned counsel for the appellant, that is, relating to waiver, he relied on Sri

Agatheeswarar Prasanna Venkatesa Perumal Devasthanam Vs. M. Narasimhan, , which was followed in Sundararajan v. Sundaramoorthy, 1993

1 L.W.569, also. In the said Sri Agatheeswarar Prasanna Venkatesa Perumal Devasthanam Vs. M. Narasimhan, , it was held that since Section 9

application was preceded by filing the written statement questioning the maintainability of the suit without Section 11 notice by the landlord, there

was no waiver and that the said case could be distinguished from Vedachala Naicker Vs. P.K. Duraiswami Mudaliar, .

(3) Regarding the third submission of learned counsel for the appellant, learned counsel for the respondent submits that there is nothing wrong in

the lower appellate court allowing C.M.P. No. 551 of 1982 and the said additional ground itself should be taken as additional written statement of

the defendant.

I have considered the rival submissions. Regarding the first submission, it is no doubt settled law that when the defendant, has denied the title of

the plaintiff, he cannot be a tenant under the Act and that the Act would not apply to him. But the question is whether there is such a denial of title

by the defendant in the present case. The lower appellate court has held thus;

What the appellant (defendant) put forth by way of defence to the ejectment suit was that she has obtained an agreement of sale in her favour

from the plaintiff and since the date of agreement of sale she was in possession of the property not as a tenant. The trial court has found that the

agreement of sale put forth by the tenant is false. Strictly that plea cannot amount to denial of title of the plaintiff to the property"".

However, learned counsel drew my attention to the following passage in the written statement:

The sale agreement between the defendant and the plaintiff was accordingly executed on 14.8.1974. The tenure of the sale agreement for

completion of sale is two years. On the date of sale agreement it was mutually agreed between the plaintiff and the defendant that she would be

treated as purchaser having paid over 75% of the sale consideration and that no lease rent was payable by her and under the agreement she would

be entitled to get the sale deed registered in due time. Hence, the defendant herein is in possession of the property not as lessee since 1974 but as

purchaser of the property. She is not therefore liable to pay any leased rent or hand over possession to the plaintiff as claimed"".

So, according to him, in the written statement itself, the defendant claimed to be the purchaser owner of the suit land and refuted the claim of the

plaintiff that he was the lessee of the suit land.

But, I am unable to accept this contention. In the same written statement, the defendant only pleaded thus:

..the suit property which was leased out to her husband on 30.1.1968 under the terms of a registered lease deed by the plaintiff. Subsequently, the

defendants husband died and he had put up superstructure on the leased land at his own expense.. While so, the defendant in August, 1970 was

called upon her to pay the lease rent of Rs. 50 p.m. inn full ignoring the understanding with her deceased husband regarding deduction of rent as

stated above. Pending settlement of the understanding in future, the defendant complied with the direction of he plaintiff to pay the lease rent of Rs.

50 fully every month.. On 5.2.1974, a proposal was made by the plaintiff offering the sale of the leased property.. and gave the option to the

defendant to purchase the same.. taking into consideration her possession as a lessee continuously under the lease agreement. The sale agreement

between the defendant and the plaintiff was accordingly executed on 14.8.1974.. The defendant is entitled in law under the agreement of sale to

have the sale completed by registration of the sale deed by the plaintiff"".(Italics supplied)

If the passage in the written statement relied on by learned counsel for the appellant is read along with the above referred to passages in the same

written statement, it cannot be said that the defendant has positively and categorically denied title of the plaintiff. In substance, all that she says in

the written statement is that after the death of her husband who was the tenant in the suit land, she became the tenant and while so she entered into

a sale agreement with the plaintiff for purchaser of the said land and that she is entitled in-law under the agreement of sale to have the sale

completed by registration of the sale deed by the plaintiff. It is obvious that she cannot become owner of the property unless sale deed is executed

in her favour pursuant to the alleged sale agreement. It is clear from the written statement itself that she herself was not unaware of this settled law,

even though in the written statement she may say that in view of some alleged understanding between her and the plaintiff and the alleged payment

of more than 75% of the sale consideration under the sale agreement she had become the ""purchaser"" of the said property. Even while saying so,

she also says that ""under the agreement, she would be entitled to get the sale deed registered in due time. Hence, the defendant herein is in

possession of the property not as lessee since 1974, but as purchaser"". (Italics supplied) Therefore, taking the written statement as a whole, it

cannot be said that she is positively denying the title of the plaintiff. In fact, even as per the said written statement she has only filed the abovesaid

C.S. No. 3725 of 1977 for specific performance of the above referred to sale agreement. That also above shows that she is conscious of the fact

that she has not secured title to the property in question pursuant to the sale agreement alleged by her. Therefore, it cannot be said that she is not a

tenant under the Act and she cannot claim the rights under the provisions of the Act.

Then, the next question is whether there is waiver, in the present case, of the above referred to Section 11 notice under the Act. The settled law

is that there could be such waiver even though the said notice is mandatory. No doubt in Vedachala Naicker Vs. P.K. Duraiswami Mudaliar, ,

Chandra Reddi, J., held that the filing of an application u/s 9 of the Act amounts to such waiver, But, a Division Bench of this Court held in Sri

Agatheeswarar Prasanna Venkatesa Perumal Devasthanam Vs. M. Narasimhan, , held, after referring to the said Vedachala Naicker Vs. P.K.

Duraiswami Mudaliar, thus:

It is well-established that waiver is a question of fact and ought to be pleaded and proved in every case. No doubt, the filing of an application u/s

9 without any demur as regards the non-compliance with Section 11 would amount to waiver of notice as the tenant''s conduct in not raising the

objection relating to notice.. But in this case the defendant has filed a written statement questioning the plaintiff''s right to institute the suit and the

jurisdiction of the court to entertain the suit without a proper notice u/s 11. Therefore the filing of an application in this case Section 9 of the Act

which is preceded by filing of a written statement questioning the maintainability of the suit without a proper notice cannot amount to the waiver of

the notice u/s 11. (Italics supplied)

The said Division Bench judgment was also followed by me in the above referred Sundararajan v. Sundaramoorthy, 1993 1 L.W.569. In the

present case also, it could be said that there is no such waiver, in view of the following reason: From the impugned judgment of the lower appellate

court, it is clear that even when the defendant filed the above referred to C.M.P. No. 5 of 1982, it has been stated therein that the plaintiff had not

given notice u/s 11 of the Act and that without prejudice to the rights of the defendant under the Act, the suit should fail for want of proper notice

u/s 11 of the Act. Since thus in C.M.P. No. 5 of 1982 itself, it is averred that the suit is not maintainable for want of notice u/s 11, it cannot be said

that the mere filing of Section 9 application would amount to the abovesaid waiver. Thus, in the present case, even though the written statement

which preceded Section 9 application did not say that the suit is not maintainable for want of Section 11 notice, in the very Section 9 application

itself it is also averred that the suit is not maintainable for want of the abovesaid notice. Therefore, the filing of Section 9 application would not

amount to the abovesaid waiver. The abovesaid plea based on Section 11 is also reiterated by filing the abovesaid C.M.P. No. 551 of 1982 for

raising the said contentions as additional grounds in the first appeal. As already stated, all the above C.M.Ps. were filed together on 20.2.1982, the

affidavits in support of the C.M.Ps. being dated 19.3.1982.

However, I am of the view that the appellant should succeed on the abovesaid third submission of learned counsel for appellant that the said

C.M.P. No. 551 of 1982 itself is not maintainable and that the first appellant court erred in allowing the said CM.P. First of all, as I have already

indicated, in none of the affidavits filed in support of the abovesaid C.M.Ps. including C.M.P. No. 551 of 1982 or in the petition, C.M.P. No. 551

of 1982, there is any specific mention of the actual amendment (to the abovesaid Act) on which the abovesaid additional ground was sought to be

raised. Nor the lower appellate Court names in its judgment, any specific amendment on which it relied on. Any way, it is stated in the relevant

additional ground that by virtue of the amendment of City Tenants Protection Act, the tenancies of the land in which the tenants have put up the

superstructure prior to the publication of the Tamil Nadu City Tenants Protection Act"" have the ""benefits thereon"" and as such ""the suit having been

filed without complying with the mandatory provisions of Section 11 of the said Act has to be dismissed. ""But, to this effect the written statement

has not been amended at all. In other words, there is no plea in the written statement regarding the tenancy in the present case that the tenant has

put up the superstructure prior to the ""the publication of Tamil Nadu City Tenants Protection Act"". Which ''publication'' is referred to herein is also

not clear. Further, in the written statement it is not stated when the defendant''s husband died or when he put up the superstructure while so,

without amending the written statement, making the requisite plea, C.M.P. No. 551 of 1982 for permission to raise the abovesaid additional

ground could not have been allowed. Therefore, the lower appellate court erred in law in allowing C.M.P. No. 551 of 1982. This is a fundamental

substantial error of law in the impugned judgment of the lower appellate court. So, there is no possibility at all for invoking Section 11 of the Act.

Accordingly, the judgment and decree of the lower appellate court are set aside and the judgment and decree of the trial court are restored

and the second appeal is allowed, However, in the circumstances of the case, there will be no order as to costs.