K.R. SAVUNDAPPA CHETTIAR Vs. K.M. INDRANI AMMAL AND ANOTHER
LAWS(MAD)-1970-8-17
HIGH COURT OF MADRAS
Decided on August 27,1970

K.R. Savundappa Chettiar Appellant
VERSUS
K.M. Indrani Ammal And Another Respondents

JUDGEMENT

Sadasivam, J. - (1.) Petitioner Savundappa Chettiar seeks to revise the order of the District Judge, Coimbatore in C.R.P. No. 3235 of 1968 on his file refusing to interfere with the order of the Appellate Authority confirming the order of eviction passed by the Rent Controller. The respondents sought for eviction of the petitioner on three grounds, namely, willful default in payment of rent, commission of acts of waste and bona fide requirement of the premises by the respondents for carrying out repairs under Ss. 10(2)(i), 10(2)(iii) and 14(1)(a) respectively of the Madras Buildings (Lease and Rent Control) Act, 1960 (hereinafter referred to as the Act). Although the Rent Controller found that the building was in a damaged condition, he found against the respondents in respect of the claim for eviction under S. 10(2)(iii) of the Act and that has become final. But the Rent Controller and the Appellate authority ordered eviction on the other two grounds put forward by the respondents. The petitioner has pleaded in his counter filed before the Rent Controller that the petition for eviction was not maintainable as there was no notice determining the lease in his favor. Paragraph 7 of the counter in which the plea has been raised is as follows: This respondent denies that any notice was sent to him. He did not receive or refuse to receive any such notice by or on behalf of the petitioners. The petition does not state that any valid notice to quit has been given to the respondent in accordance with the previsions of the T.P. Act. No such notice was in fact given. So this petition for eviction is unsustainable. On this sole ground this application is liable to be rejected in limine.
(2.) But the Rent Controller has not dealt with this plea in alt order for eviction against the petitioner. The petitioner failed to take this plea of want of notice in the appeal preferred by him to the Appellate authority, but he subsequently filed additional grounds of appeal in which he has taken this specific plea that there was no valid termination of tenancy by notice as required by law. But the Appellate authority also has failed to deal with this additional ground raised by the petitioner. The petitioner has not taken any ground in his revision petition to the District Court about the absence of valid notice terminating the tenancy in his favor and the point does not also appear to have been argued before the learned District Judge, Coimbatore. The petitioner has in this civil revision petition taken the plea that in the absence of termination of the tenancy by notice as required by law, there could be no order for eviction against him.
(3.) The learned Advocate for the respondents relied on the decision of Kailasam, J. in C. R. P. No. 687 of 1968 that it is open to a tenant to waive the requirement of notice under S. 106 of the Transfer of Property Act. He also referred to the Bench decision in Kalyanasundara v/s. Natarajan : (1969) 2 M. L. J. 585 in which it wee held that so long at the contractual tenancy is not terminated in the manner provided by S. 106 read with S. 111 (h) of the Transfer of Property Act, the tenant is protected in his possession and the landlord cannot evict him, with the necessary corollary that there is no need for the tenant to seek protective refuge under the Act and the landlord cannot, during subsistence of the tenancy, resort to eviction on grounds provided by the Act irrespective of the protection available to the tenant under the subsisting contractual tenancy. It is clear from the penultimate paragraph of that decision that a contention was raised in that case that the tenant should be deemed to have waived his right as the objection as to want of notice had not been raised before the Controller, but this contention was rejected on the ground that the lower appellate court allowed the point to be taken. Thus the mere fact that the tenant had failed to raise the point before the Rent Controller was not considered in that case, to be sufficient to constitute waiver. It is true that if a tenant has failed to raise a plea about validity or Insufficiency of the notice before the Rent Controller and the Appellate authority, It would be sufficient justification to hold that be had waived the plea; but it could be hardly stated on the facts of this case that there was any such waiver. It Is clear from the narration of facts that the petitioner has taken the plea that the lease in his favor has not been terminated by valid notice both before the Rent Controller and the Appellate authority. Thus it could not be said that there was any waiver of the plea by the petitioner. It Is true he has not taken the plea before the District Court In revision; but be has takes the plea in this Court. It is sufficient to state that there are no circumstances from which it could be found that the petitioner has waived or given up his plea that there was no valid termination of tenancy by notice as required by law. It is represented by the learned advocate for the respondents that notices terminating the tenancy have been issued to the petitioner. Hence the Rent Controller has to go into the question whether there was valid notice terminating the tenancy In favor of the petitioner. The eviction petition has to be remanded for the said purpose.;


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