K.S. ABDULLAH Vs. S. SRINIVASAN
LAWS(MAD)-1970-11-12
HIGH COURT OF MADRAS
Decided on November 13,1970

K.S. Abdullah Appellant
VERSUS
S. SRINIVASAN Respondents

JUDGEMENT

G.Ramanujam, J. - (1.) AS all the above three revisions are connected they are dealt with together. The respondent, who is the same in all the three revisions, filed three petitions for eviction of the petitioner, who is also the same in all the revisions, from three different portions of premises No. 1, Smith Road, Mount Road, Madras -2 on the grounds (1) that he bona fide required the premises for the purpose of immediate demolition and reconstruction and (2) that the petitioner had denied the title of the landlord and that such denial was not bona fide. The tenant -petitioner resisted all the eviction petitions and stated that he is entitled to the benefits under the City Tenants Protection Act, in respect of a portion of the premises wherein he had put up superstructure, that the request of the landlord for the purpose of demolition and reconstruction was not bona fide and that there has been no valid notice terminating the tenancy in his favour. He also alleged that the premises from which he is sought to be evicted has been constructed after 1960 and therefore, the landlord cannot seek eviction under the provisions of the Madras Buildings (Lease and Rent Control) Act, 1960. The Rent Controller, however, overruled the objections of the petitioner and ordered eviction. There was an appeal to the appellate authority constituted under the Act and the order of eviction passed by the Rent Controller has been affirmed therein. The appellate authority also agreed with the Rent Controller that the requirement of the premises by the landlord for the purpose of demolition and reconstruction had been established and that concurrent finding has not been canvassed before me and the learned Counsel for the petitioner fairly conceded that he is not questioning that finding. On the question whether the petitioner was entitled to the benefits under the Madras City Tenants Protection Act, in respect of that portion of the land over which he had put up the superstructure, the appellate authority also agreed with the Rent Controller that the petitioner was not entitled to the benefits under that Act, and this finding also has not been challenged in these revisions. On the questions whether there has been a valid notice determining the tenancy in favour of the petitioner and whether the premises is one constructed after 1960 so as to exclude the application of the provisions of Madras Act (XVIII of 1960) the view of the Rent Controller as well as the appellate authority was that there has been a valid notice determining the tenancy and that the premises came within the purview of the Act. This alone is challenged by the learned Counsel for the petitioner.
(2.) THE question whether the premises was constructed after 1960 can easily be disposed of. It was the case of the petitioner that there was a complete reconstruction of the premises in 1961 after he took the premises on lease under Exhibit P -8, dated 24th August, 1959, and that as such the building will get exempted from the provisions of Madras Act (XVIII of 1960). But a perusal of the lease deed Exhibit P -8 shows that the premises let out was a storeyed Madras terraced Building together with zinc shed on its back eastern side and a vacant plot on its northern side. Clause 7 of the lease deed permitted the lessee to put up pucca superstructures on the northern front portion and the eastern back portion of the existing terraced superstructure at a cost of Rs. 3,000 and to adjust the same at the rate of Rs. 40 per month from the monthly rentals of Rs. 100 fixed under the lease deed. The petitioner in his evidence as R.W. 1 had stated that, in 1961 the terrace was constructed in front side and zinc shed was put up on the back side and a terraced portion was put up further back. From the terms of the lease deed and the evidence of the petitioner it is clear that the constructions after 1960 were only additional constructions to the existing building which was taken on lease. Hence it is not possible to hold that the entirety of the building leased out to the petitioner under Exhibit P -8 is a new building constructed after 1960 so as to exclude it from the provisions of Madras Act (XVIII of 1960). The only further question that remains to be considered is whether the view taken by the Courts below that there has been a proper notice of determination of tenancy preceding the eviction petitions is correct or not. It is seen that there was a notice, dated 13th May, 1967, by which the respondent determined the tenancy in favour of the petitioner and called upon him to vacate on or before 31st May, 1967. The petitioner, however, did not vacate as per the notice but instead issued a reply notice on 18th May, 1967 wherein he alleged that the respondent had demanded a monthly rent of Rs. 470 that as he was not willing to pay the higher rent the respondent has come forward with the notice of termination, and that the notice of termination has been motivated. He was not willing to vacate the premises as demanded by the respondent. The respondent by a rejoinder, dated 2nd June, 1967, addressed to the petitioner disputed the allegations made against him by the petitioner in his reply notice, dated 18th May, 1967, and stated that he has been asking for vacant possession from 14th July, 1966, and that the petitioner has been evading the same, and called upon the petitioner to immediately vacate and deliver vacant possession failing which, he threatened to take proceedings in eviction. The petitions for eviction have been filed in September, 1967. The learned Counsel for the petitioner contended that the notice determining the tenancy given on 13th May, 1967 had been waived by the respondent (i) by issuing a further notice, Exhibit P -25 dated 2nd June, 1967, and (ii) by the receipt of rents for the subsequent period. The Rent Controller as well as the appellate authority held that neither the receipt of rents subsequent to the issue of the notice on 13th May, 1967, nor the issue of a second notice on 2nd June, 1967, constituted a waiver of the notice of termination already issued. The learned Counsel for the petitioner questions the correctness of the view taken by the Court below.
(3.) ACCORDING to the learned Counsel the contractual tenancy between the petitioner and the respondent though originally put an end to by the notice, dated 13th May, 1967, has been revived by the respondent's waiver of the notice by issuing a second notice on 2nd June, 1967, and by receiving the rents due subsequent to 13th May, 1967, the date of the original termination notice. The learned Counsel refers to Section 113 of the Transfer of Property Act and the illustrations given thereunder. Section 113 of the Transfer of Property Act and the illustrations are set out hereunder: Section 113 : A notice given under section in, Clause (h), is waived, with the express or implied consent of the person to whom it is given, by any act on the part of the person giving it, showing an intention to treat the lease as subsisting. Illustrations: (a) A, the lessor, gives B, the lessee, notice to quit the property leased. The notice expires; B tenders, and A accepts rent which has become due in respect of the property since the expiration of the notice. The notice is waived. (b) A, the lessor, gives B, the lessee, notice to quit the property leased. The notice expires, and B remains in possession. A gives to B as lessee a second notice to quit. The first notice is waived. The learned Counsel wants to treat the notice, Exhibit B -25, dated 2nd June, 1967, as a second notice to quit so as to invoke the explanation (b) of Section 113 in support of his plea based on the respondent's waiver of the first notice dated 13th May, 1967. But a perusal of the notice Exhibit P -25, dated 2nd June, 1967, clearly shows that it is not a second notice determining the tenancy but it is merely a rejoinder disputing the allegations made by the petitioner in his reply notice, dated 18th May, 1967. The said notice Exhibit P -25 does not proceed in the basis that the respondent had waived the first notice in sending the same. The facts in this case are entirely different from the facts in Mohanlal v. Vijai Narain , where it was held that giving of a second notice to quit is a waiver of the first notice so far as the person giving notice is concerned. I therefore feel that the petitioner is not right in invoking the said illustration (b). The decision in Basheshar Nath v. Delhi Improvement Trust , on similar facts supports my above view. I therefore hold that by issuing Exhibit B -25, the respondent has not waived his notice dated 13th May, 1967, determining the contractual tenancy.;


Click here to view full judgement.
Copyright © Regent Computronics Pvt.Ltd.