Madras High Court
T.Mony vs S.Mariammal on 19 January, 2021
SA(MD)No.65 of 2015
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
Dated : 19.01.2021
CORAM
THE HONOURABLE MR. JUSTICE R.SUBRAMANIAN
SA(MD)No.65 of 2015
T.Mony ...Appellant/Appellant/Defendant
Vs.
1.S.Mariammal
2.Muthukumar
3.Selvakumar .. Respondents/Respondents/Plaintiffs
PRAYER:- Second Appeal is filed under Section 100 of Civil Procedure
Code against the Judgment and Decree dated 22.12.2014 passed in A.S.No.
96 of 2014 on the file of the 2nd Additional Sub Court, Nagercoil confirming
the judgment and decree dated 31.10.2011 passed in O.SNo.186 of 2008 on
the file of the 1st Additional District Munisf, Nagercoil.
For Appellant : Mr.M.P.Senthil
For Respondents : No appearance
JUDGMENT
The defendant/tenant has come up with this Second Appeal
challenging a decree for eviction granted in O.S.No.186 of 2008 and
confirmed in A.S.No.96 of 2014.
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2. The present suit in O.S.No.186 of 2008 on the file of the 1 st
Additional District Munisf, Nagercoil, was laid by the plaintiffs seeking
eviction after terminating the tenancy in the manner known to law. It was
also claimed that the tenant was irregular in payment of rent. Another suit
was also filed by the defendant/tenant in O.S.No.687 of 2002 for injunction
restraining the landlords from evicting him except under due process of law.
The landlord filed R.C.O.P.No.37 of 2004 on the file of the Principal
District Munsif, Nagercoil and the same was withdrawn since the property
happened to be situated in a panchayat area to which the Tamil Nadu
Buildings (Lease and Rent Control) Act was not extended.
3. The present suit was resisted by the defendant contending that the
suit is bad for non-joinder of necessary parties and that the shop building
was constructed by the defendant at the cost of Rs.38,000/-. It was also
claimed that the plaintiffs have got Rs.58,000/- as advance including the
sum of Rs.38,000/- spent for construction of the shop. The tenant would
further contend that the requirements of landlords are not bonafide.
4. At trial, the first plaintiff Mariammal was examined as P.W.1 and
Ex.A1 to Ex.A.5 were marked. The defendant was examined as D.W.1 and
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one Mookan was examined as D.W.2 and Ex.B.1 to Ex.B.14 were marked.
Upon consideration of the evidence on record, the learned trial Judge
concluded that notice to quit has been properly issued and there is a valid
notice to quit issued under Section 106 of Transfer of Property Act. Once it
is found that the provisions of the Tamil Nadu Buildings (Lease and Rent
Control) Act did not apply, the reasons for eviction are not very material.
On the above conclusion, the learned trial Judge decreed the suit.
5. Aggrieved, the defendant preferred an appeal in A.S.No.96 of
2014. The Appellate Court concurred with the findings of the trial court and
dismissed the appeal. Aggrieved, the defendant has come up with this
Second Appeal.
6. The following questions of law have been framed by this Court at
the time of admission:
i) Whether the judgment and decree of the courts below
is vitiated in granting the decree for eviction even without
adverting that presuit notice marked as Ex.A.1 is a defective
one which is not consonance with the mandatory requirements
contemplated under Section 106 of Transfer of Property Act?
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ii) Whether the courts below is right in law in granting a
decree for eviction without adverting that absolutely no
convicing reason on the side of the respondents seeking for
eviction and there is no boafide on the part of the respondents
which has also been corroborated by the documentary
evidence under Ex.A.5, B and B5 as well as categorically
admission of P.W1?
iii) Whether the lower appellate court has committed a
serious error in dismissing the application in I.A.No.838 of
2014 to receive the additional evidence annexed along with
petition, which are crucial and relevant to the issue, especially
the appellant has substantiated the mandatory provisions
contemplated Order 47 Rule 27 of Civil Procedure Code?
iv) Whether the lower appellate court is right in law in
dismissing the application in I.A.No.837 of 2014 for framing
additional issues which is even permissible before the
appellate court without adverting the very scope and ambit of
Order 41 Rule 25 of Civil Procedure Code?
v) Whether the judgment and decree rendered by the
lower appellate court in mechanically confirming the findings
of the trial court could be sustained to law, especially there is
no independent consideration of the oral and documentary
evidence by the appellate court which is held to be mandatory
as contemplated under Order 41 Rule 31 of Civil Procedure
Code?
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SA(MD)No.65 of 2015
7. I have heard Mr.M.P.Senthil, learned counsel appearing for the
appellant. Despite service, the respondents are not appearing either in
person or through counsel duly instructed.
8. Elaborating on the questions of law, Mr.M.P.Senthil, learned
counsel for the appellant would contend that the notice is defective as it is
not in consonance with the mandatory requirements of Section 106 of
Transfer of Property Act. He would also contend that in the absence of any
reasons for eviction, the courts below were not right in granting a decree for
eviction. The rejection of the application for additional evidence was also
projected as ground for challenge to the judgment of the appellate court.
9. I have considered the submissions of the learned counsel for the
appellant.
10. Notice to quit was issued on 19.06.2007 terminating the tenancy
with effect from 01.07.2007. After the amendment of Section 106 of
Transfer of Property Act, the dates become irrelevant. It is enough if the suit
is filed after expiry of 15 days from the date of receipt of notice in case of
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SA(MD)No.65 of 2015
a month to month tenancy. The courts below have taken note of that part
and rightly concluded that notice to quit is validly issued.
11. On the second question of law regarding the reason for eviction,
once it is found that the tenant is not entitled to protection under the Tamil
Nadu Buildings (Lease and Rent Control) Act, the provisions to Transfer of
property Act alone would apply and the only requirement is a proper
termination of tenancy and no other reason is required for suing for eviction.
Therefore, the second question of law framed is also answered against the
appellant.
12. The dismissal of the application in I.A.No.838 of 2014 may not
also be any help to the appellant inasmuch as the core issues are answered
against the appellant.
13. In view of the above, the questions of law framed are answered
against the appellant and the appeal is dismissed. No costs.
19.01.2021
Index : Yes/No
Internet: Yes/No
CM
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SA(MD)No.65 of 2015
To:
1.The I Additional Subordinate Judge,
Nagercoil
2.The 2nd Additional Sub Court,
Nagercoil
3.The Section Officer VR Section,
Madurai Bench of Madras High Court,
Madurai.
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SA(MD)No.65 of 2015
R.SUBRAMANIAN.J.,
CM
SA(MD)No.65 of 2015
19.01.2021
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