Madras High Court
C.Selvaraj vs A.E.Thayelambal on 3 August, 2021
S.A.(MD)No.171 of 2014
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 03.08.2021
CORAM:
THE HONOURABLE MR.JUSTICE G.R.SWAMINATHAN
S.A.(MD)No.171 of 2014
C.Selvaraj ... Appellant / Respondent / Defendant
-Vs-
A.E.Thayelambal ... Respondent / Appellant / Plaintiff
PRAYER: Second Appeal filed under Section 100 of the Civil Procedure
Code, against the judgment and decree dated 13.11.2013 made in A.S.No.
140 of 2010 on the file of the Additional Subordinate Court, Didigul by
reversing the decree and judgment dated 29.09.2010 made in O.S.No.300 of
2007 on the file of the Additional District Munsif, Dindigul.
For Appellant : Mr.A.R.Sethupathy
For Respondent : Mr.V.K.Vijaya Raghavan
for Mr.R.S.Prabhu
JUDGMENT
The defendant in O.S.No.300 of 2007 on the file of the Additional
District Munsif, Dindigul is the appellant in this second appeal. The said
suit was filed by the respondent herein for ejecting the appellant from the
suit premises.
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S.A.(MD)No.171 of 2014
2. The case of the plaintiff is that the appellant was a tenant in respect
of the suit premises since 01.09.2004. The lease was for a period of 11
months. The plaintiff issued termination notice dated 07.02.007 calling
upon the defendant to evict and hand over possession of the suit premises
on or before 31.03.2007. Since the defendant did not comply with the
demand set out in the notice, ejectment suit had to be filed. The defendant
filed written statement controverting the plaint averments.
3. The defendant categorically denied having entered into lease
agreement on 01.09.2004 as claimed by the plaintiff. The defendant further
contended that he has been a tenant in the suit premises right from the year
1990-91. The defendant in-fact had acted as power agent for a period for
the landlady. After return of the landlady's son, there arose some difference
of opinion leading to filing of O.S.No.575 of 2005 by the defendant to
protect himself against coercive dispossession. The defendant contended
that there was no cause of action for filing the suit. Based on the divergent
pleadings, the learned trial Munsif framed the necessary issues. The
landlady had filed the suit through her power agent. The power agent
examined himself as P.W.1 and marked Ex.A1 to Ex.A9. The attestor of the
lease agreement was examined as P.W.2. The defendant examined himself
as D.W.1 and one Chelladurai as D.W.2. Ex.B1 to Ex.B6 were marked.
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S.A.(MD)No.171 of 2014
After consideration of the evidence on record, the learned trial munsif
dismissed the suit by judgment and decree dated 29.09.2010. Aggrieved by
the same, the plaintiff filed A.S.No.140 of 2010 before the Additional Sub
Court, Dindigul. The first appellate Court vide judgment and decree dated
13.11.2013, set aside the judgment and decree passed by the trial Court and
allowed the appeal and decreed the suit as prayed for. Challenging the
same, this second appeal came to be filed. The second appeal was admitted
on the following substantial questions of law:-
a) Whether the lower appellate Court has not perversely decreed
the suit on the ground that the defendant has not proved the payment of
advance and the investment made for his business?
b) Whether the lower appellate Court has not seriously erred by
not even discussing about the genuineness of the alleged lease deed
(Ex.A1) when especially the trial Court has held that the plaintiff has
not proved that the defendant had signed in Ex.A1?
c) Whether the lower appellate Court is correct in holding that
there has been commission of default in payment of rent when
especially both sides admit that the defendant has been regularly paying
rent from the date of the first suit and there was no arrears on the date of
the present suit?
d) Whether the appellate Court is right in passing a decree even
without discussing the validity of Ex.A1 when especially the trial Court
has positively held that the plaintiff has filed the suit with mala fide
intention?
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S.A.(MD)No.171 of 2014
4. The learned counsel appearing for the appellant reiterated all the
contentions set out in the memorandum of grounds and called upon this
Court to answer the substantial questions of law in favour of the appellant
and set aside the impugned judgment and decree and restore the decision of
the trial Court.
5. Per contra, the learned counsel appearing for the respondent
submitted that the impugned judgment and decree do not call for any
interference.
6. I carefully considered the rival contentions and went through the
evidence on record. The core argument of the learned counsel appearing for
the appellant is that the plaintiff had approached the Court with unclean
hands. Even though it is evident from the record that the defendant had
been a tenant in respect of the suit premises right from the year 1990-91,
for reasons best known to the plaintiff, an impression was sought to be
generated as if the defendant was inducted as tenant only in the year 2004
under Ex.A1. The trial Court had given a categorical finding that Ex.A1
has not at all been proved. The learned counsel for the appellant would
contend that Ex.A1 is a concocted document. According to him, a person
approaching the Court with unclean hands ought to be non suited at the
threshold. He submitted that the trial Court's decision deserves to be
restored.
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S.A.(MD)No.171 of 2014
7.I am not persuaded by the said submission. The learned counsel
appearing for the appellant is right in his contention that the defendant had
been a tenant in respect of the suit premises right from the year 1990
onwards and that it is false to state that he was inducted as tenant in the year
2004. Ex.A1 has also not been proved. Therefore, the consequence can
only be that Ex.A1 cannot be taken into account. In such an event, as
rightly pointed out by the learned counsel appearing for the respondent, the
lease will have to be treated as monthly lease terminable by giving 15 days
notice. In the case on hand, vide Ex.A3, the plaintiff had issued
termination notice. Ex.A3-notice is dated 07.02.2007. The defendant had
been called upon to hand over the premises by 31.03.2007. When the
statutory provision contemplates 15 days' notice, the defendant had been
given more than 50 days notice.
8.It is not in dispute that to the place in question, the provisions of
Tamilnadu Building (Lease and Rent Control) Act do not apply. It is also
not in dispute that the landlord need not give any reason for calling upon
the tenant to evict and hand over the premises. What is required is only
issuance of proper termination notice. In fact, under Section 106(3) of the
Transfer of Property Act, it is stated that the termination notice shall not be
deemed to be invalid, merely because, the period mentioned therein falls
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S.A.(MD)No.171 of 2014
short of the period specified under sub-section 1 of 106, where a suit or
proceeding is filed after the expiry of the period mentioned in that sub
section. In the case on hand, the suit was filed only on 24.04.2007, that is
only after expiry of the period under Section 106(3) of Transfer of Property
Act.
9.The learned counsel appearing for the appellant submitted that the
suit appears to have been filed without the knowledge of the landlady.
I do not find any merit in this contention. The person who filed the suit is
none other than the son of the landlady. He has been clothed with a power
of attorney by the mother. The genuineness of the power of attorney which
was marked as Ex.A2 has not been challenged. Therefore, the first
appellate Court rightly came to the conclusion that the plaintiff had more
than made out a case for decreeing the suit. The plaintiff had come to the
Court for enforcing a statutory right. This is not the case in which equitable
considerations can be invoked to non-suit the plaintiff. If the plaintiff seeks
only a discretionary relief, then, probably, the conduct of the litigant may
play some role. As rightly pointed out by the learned counsel appearing for
the respondent / plaintiff, even if Ex.A1 is ignored, still it will not make any
difference.
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S.A.(MD)No.171 of 2014
10. In this view of the matter, no substantial question of law really
arises for consideration. The impugned judgment and decree passed by the
first appellate Court is confirmed. Time for eviction is four months. The
second appeal is dismissed. No costs.
03.08.2021
Internet : Yes/No
Index : Yes/No
rmi
To
1.The Additional Subordinate Court, Didigul.
2.The Additional District Munsif, Dindigul.
3.The Section Officer,
Vernacular Records,
Madurai Bench of Madras High Court,
Madurai.
G.R.SWAMINATHAN.J.,
https://www.mhc.tn.gov.in/judis/
S.A.(MD)No.171 of 2014
rmi
Judgment made in
S.A.(MD)No.171 of 2014
03.08.2021
https://www.mhc.tn.gov.in/judis/
