K N RAMAKRISHNAN Vs. C KERALA CHAND
HIGH COURT OF MADRAS
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(1.) THE tenant under the Madras Buildings (Lease and Rent Control) Act is the petitioner in this civil revision petition. He had taken on lease premises No. 49-A upper Bazar, Ooty, on a rent of Rs. 35 per mensem. On 13-8-1965, the landlords issued a notice to the petitioner-tenant terminating the tenancy and calling upon him to pay Rs. 595 which was the amount due to them as rent. This notice was served on the petitioner-tenant on 18-8-1965. The petitioner-tenant gave a rely on 25-8-2965 in which he denied his liability to pay Rs. 595 and also contended that the notice was not in accordance with the provisions of S. 106 of the Transfer of Property Act. On 17-1-1966, the landlords filed a petition for exiction of the petitioner-tenant on various grounds namely, willful default etc. They claimed arrears of rent upto that date Rs. 770. On 25-2-1966 an ex parte order was passed against the tenant. It was restored on 18-3-1966 and time was granted for 1966. He did not deposit any amount; nor did the raise the question as to lack of proper notices under S. 106 of the Transfer of Property Act. On 18-4-1966, he paid Rs. 400 when a sum of Rs. 875 was due. On 13-6-1966, the Rent Controller directed the petitioner-tenant to deposit the arrears and posted the petition for being called on 20-6-1966. On 20-6-1966 the counsel reported no instructions and the petition was allowed with costs. On 29-7-1966, the petitioner-tenant paid a sum of Rs. 510 out of Rs. 580 that was due. As already observed, in the written statement before the Rent Controller, the petitioner-tenant did not raise the plea about the defect in notice. The Rent controller allowed the petition and ordered eviction. the tenant preferred an appeal, C. M. A. 39 of 1966. In the original memorandum of appeal, he did not raise the question about want of notice but filed an additional memorandum of grounds on 24-2-1967 wherein he contended that proper notice under S. 106 of the Transfer of Property Act was not given. There is some dispute between the parties as to whether the question of proper notice was argued before the Subordinate Judge or not. The order of the subordinate Judge does not refer to the contention that the notice was not in accordance with the provision under S. 106 of the Transfer of Property Act. The subordinate Judge also upheld the plea of the respondent-landlords and confirmed the order of the Rent Controller directing the eviction of the petitioner-tenant on the ground of wilful default. The tenant took up the matter to the District Judge. Before him, the question as to the defect in notice was argued elaborately. The learned Judge found that the notice was not in accordance with S. 106 of the transfer of Property Act, but from the circumstances of the case inferred that the tenant had waived his right to raise this contention.
(2.) THE petitioner-tenant has taken the matter before this court in civil revision petition. It is contended, that failure to give notice in accordance with the provisions of Sec. 106 of the Transfer of Property Act is fatal the petitioner as the rent Controller has no jurisdiction to entertain the petition and in any event the order for eviction cannot be passed when there is failure to comply with the provisions of S. 106 of the Transfer of Property Act. The petitioner-tenant has also contended that the superstructure belongs to him and, therefore, the proceeding under the Rent Control Act is not competent. The landlords, on the other hand, would contend that the superstructure also belongs to them. As the dispute regarding superstructure has not been pleaded before the trial Court, this question cannot be allowed to be raised at this stage and, therefore, I refrain from dealing with this question.
(3.) REGARDING the question of notice under S. 106 of the Transfer of Property Act, it is common ground that it is not in accordance with the requirements of the section as the notice was received by the tenant only on 18-8-1965 wherein he was called upon to vacate the premises by the end of that month. There is no clear fifteen days' notice and, therefore, the notice is not in accordance with S. 106 of the transfer of Property Act. The contention that is raised by Mr. Sridevan, the learned counsel for the respondents land lords is that by his conduct the petitioner-tenant has waived his right to raise this question, and, therefrom, he cannot be permitted to raise this question before this court. On the other hand, Mr. Parasurama Iyer, learned counsel for the petitioner-tenant would submit that when there is absence of proper notice under S. 106 of the Transfer of Property Act, the court itself has no jurisdiction to proceed with the matter and, therefore, the entire order of the trial court and further proceedings are non est. In any event. it is submitted that there is no question of any waiver of proper noticed as he did not knowingly refrain from questioning the defect in the notice.;
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