Ramasamy (Died) vs Paramakudi Vaniya Uravinmurai
2021 Latest Caselaw 20324 Mad

                                                                          S.A.(MD)No.267 of 2007

                          BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

                                               DATED: 04.10.2021

                                                     CORAM:

                             THE HONOURABLE MR.JUSTICE G.R.SWAMINATHAN

                                            S.A.(MD)No.267 of 2007

                   1.Ramasamy (Died)

                   2.R.Prabhakaran                       ... Defendant / Appellant / Appellant



                                                    -Vs-


                   1.Paramakudi Vaniya Uravinmurai
                     Pothu Sabai,
                     Through its President Radhakrishnan,
                     8/174, A, East Pallivasal Street,
                     Paramakudi.

                   2.Paramakudi Vaniya
                     Uravinmurai Pothu Sabai,
                     Through its Secretary, Jeyaraman,
                     8/174,A, East Pallivasal Street,
                     Paramakudi.                      ... Plaintiffs / Respondents / Respondents


                   PRAYER: Second Appeal filed under Section 100 of the Civil Procedure
                   Code, against the judgment and decree dated 03.11.2006 made in A.S.No.92
                   of 2004 on the file of the Sub Court, Paramakudi confirming the judgment
                   and decree dated 29.09.2004 made in O.S.No.330 of 1991 on the file of the
                   District Munsif Court, Paramakudi.


https://www.mhc.tn.gov.in/judis/


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                                                                          S.A.(MD)No.267 of 2007

                                               For Appellant     : Mr.M.E.Elango
                                               For Respondents : Mr.A.Arumugam
                                                                  for M/s.Ajmal Associates


                                                     JUDGMENT

The defendant in O.S.No.330 of 1991 on the file of the District

Munsif Court, Paramakudi is the appellant in this second appeal.

2. The respondent namely Paramakudi Vaniya Uravinmurai Pothu

Sabai filed the said suit for evicting the original appellant from the suit

schedule property. The appellant filed written statement controverting the

suit claim. Based on the divergent pleadings, the trial court framed the

necessary issues. On behalf of the plaintiff, one of its office bearers

namely Kathiresan was examined as P.W.1. Ex.A1 to Ex.A24 were marked.

The defendant Ramasamy examined himself as D.W.1. On the side of the

defendant, no document was marked. An advocate commissioner was

appointed and his report and plan were marked as Court Ex.1 to Ex.4. By

judgment and decree dated 29.09.2004, the suit was decreed and the

defendant was directed to hand over the vacant possession of the suit

property. The defendant was also directed to clear the rental arrears.

Aggrieved by the same, the defendant filed A.S.No.92 of 2004 before the

Sub Court, Paramakudi. By the impugned judgment and decree dated https://www.mhc.tn.gov.in/judis/

S.A.(MD)No.267 of 2007

03.11.2006, the first appeal was dismissed. Challenging the same, the

second appeal came to be filed. The second appeal was admitted on the

following substantial question of law:-

“Whether the courts below are right in coming to the conclusion that Ex.A19 is a valid notice since the same has not been served to the respondents?”

3. The learned counsel appearing for the appellant submitted that the

termination notice issued by the plaintiff under Section 106 of the Transfer

of Property Act was not served in the manner known to law. He also would

contend that the plaintiff should have filed only a petition under the Tamil

Nadu Buildings (Lease and Rent Control) Act and not a regular suit.

4. Per contra, the learned counsel appearing for the respondents

submitted that the impugned judgment and decree do not warrant any

interference.

5. I carefully considered the rival contentions and went through the

evidence on record. There is no dispute that the suit property belongs to the

plaintiff Sabai and that the original defendant Ramasamy was inducted as a

tenant therein. There is again no dispute that the plaintiff issued Ex.A14

notice dated 30.07.1991. It is true that the said notice was returned

'un-served'. Now the only question that calls for determination is whether https://www.mhc.tn.gov.in/judis/

S.A.(MD)No.267 of 2007

this is sufficient. I went through the contents of Ex.A14. The plaintiff had

clearly stated therein that tenancy was monthly tenancy and that under the

said notice, the plaintiff Sabai terminated the tenancy and gave time till

31.08.1991 to the defendant to hand over the possession. It was also stated

therein that if the defendant did not comply with the demand set out under

Ex.A14-notice by 01.09.1991, the plaintiff would be constrained to initiate

legal proceedings for evicting the defendant from the suit property. The

notice was addressed to the defendant and his address was mentioned as

3/74, Hospital road, Paramakudi. It is not the case of the defendant that the

address mentioned in Ex.A14 notice is incorrect. It is true that notice was

returned with an endorsement 'unclaimed'. The landlord / plaintiff can only

be expected to send notice to the correct address. Even if it returns for the

reason 'unclaimed', it would certainly constitute service on the defendant.

Therefore, the substantial question of law framed in this appeal is answered

against the appellant.

6. The learned counsel for the appellant would further argue that the

plaintiff should have filed only RCOP and filing a suit for evicting the

appellant was not maintainable. As rightly pointed out by the learned

counsel appearing for the respondents, in the plaint itself, in Paragraph No.

6, it has been mentioned that since the suit property is a trust property and https://www.mhc.tn.gov.in/judis/

S.A.(MD)No.267 of 2007

since the plaintiff is a public trust, the provisions of the Tamil Nadu

Building (Lease and Rent Control) Act will not apply and that is why, they

have filed the suit instead of RCOP.

7. This categorical stand taken by the plaintiff has not at all been

rebutted in the written statement. The learned counsel appearing for the

appellant would contend that the plaintiff is in-fact a society registered

under the Provisions of Tamil Nadu Societies Registration Act. But even

such society can partake the character of trust and therefore, since the said

contention has not been rebutted in the written statement, the trial court

rightly did not go into the issue. In fact, no issue as regards the

maintainability of the suit was framed. The appellant is therefore not

permitted to raise the said contention at this stage. I must also mention that

no substantial question of law has been framed in that regard. The second

appeal stands dismissed. Time for vacating the suit property is three

months subject to the appellant filing an affidavit of undertaking. No costs.

04.10.2021

Internet : Yes/No Index : Yes/No rmi G.R.SWAMINATHAN.J., https://www.mhc.tn.gov.in/judis/

S.A.(MD)No.267 of 2007

rmi

To

1.The Sub Court, Paramakudi.

2.The District Munsif Court, Paramakudi.

Copy To The Section Officer, Vernacular Records, Madurai Bench of Madras High Court, Madurai.

Judgment made in S.A.(MD)No.267 of 2007

04.10.2021

https://www.mhc.tn.gov.in/judis/