In the High Court of Judicature at Madras
Dated: 14.12.2009
Coram:
The Honourable Mrs. Justice R.BANUMATHI
Second Appeal No.1264 of 2009
Arunagiri .. Appellant
vs.
1. Dr.Jayalakshmi
2. J.Kumaravel .. Respondents
Second Appeal filed under Section 100 C.P.C against the judgement and decree dated 25.02.2009 made in A.S.No.66 of 2008 on the file of Sub Court, Pollachi, against the judgement and decree dated 21.04.2008 made in O.S.No.402 of 2007 on the file of District Munsif, Pollachi.
For Appellant : Mr.P.Jagadeesan
For Respondents : Mr.V.Nicholas (Caveator)
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J U D G M E N T
This Second Appeal is preferred against judgment in A.S.No.66 of 2008 on the file of Sub Court, Pollachi confirming judgment of the trial Court passed in Ejection Suit in O.S.No.402 of 2007. Unsuccessful defendant is the appellant. For convenience, parties are referred to in their original rank in the suit.
2. Second plaintiff is the son of first plaintiff. Case of plaintiffs is that they are the owners of the suit property, which was let out to the defendant for using it as a godown for storing and keeping LPG gas cylinders for the purpose of distributing the same to the defendant's customers. Defendant is an agent of LPG gas cylinders running in the name and style "Valliammal Gas Agency". The tenancy commenced in the year 1994 on a monthly rent of Rs.2,000/-. Defendant had put up a temporary shed for running his business. In the year 1992, defendant attempted to sublet the suit property and the plaintiffs filed suit in O.S.No.401 of 1992 for permanent injunction. Since defendant stopped his attempts to sublet the suit property, the said suit was not pressed on 13.01.1993. In June 1995, parties agreed to enhance the rent to Rs.2,100/- and a fresh lease agreement was to be executed from 01.07.1995. Since the defendant was not ready to get the lease deed executed and expressed his intention to vacate the suit property, he required some time to vacate. Further case of plaintiffs is that thereafter the defendant was not paying rent and after issuing Ex.A3 (dt. 29.08.1997) notice terminating the lease with effect from 24.09.1997, plaintiffs filed the suit for eviction of the defendant from the suit property after removing superstructure put up by the defendant and also claiming arrears of rent of Rs.50,000/- and claiming damages for use and occupation at the rate of Rs.4,000/- per month till delivery of property.
3. Defendant resisted the suit contending that he has paid Rs.20,000/- towards rental advance and that he has been paying the rent regularly, but the first plaintiff has not issued any receipt for receipt of rent. Defendant has denied having agreed to pay enhanced rent at Rs.2,100/- per month. According to defendant, Ex.A3 (dt. 29.08.1997) - termination notice is not in terms of Section 106 of Transfer of Property Act. Defendant also contended that godown constructed in the suit property is under the direct control and maintenance of Hindustan Petroleum Corporation and therefore Hindustan Petroleum Corporation is a necessary party and suit is bad for non-joinder of necessary party.
4. On the above pleadings, four issues were framed in the trial Court. On plaintiffs' side, first plaintiff was examined as P.W.1 and Exs.A1 to A6 were marked. On defendant's side, defendant was examined as D.W.1 and no document was marked. Even though defendant had given evidence in chief examination, he failed to appear for cross examination. Since there was no representation on defendant's side, his evidence was closed and trial Court proceeded to pass judgment under Order 17 Rule 3 of C.P.C. with available materials.
5. Upon consideration of evidence, trial Court held that statutory notice issued under Ex.A3 is valid and there was valid termination of tenancy. Trial Court further held that defendant failed to prove that he had remitted monthly rent from July 1995 to July 1997 and that plaintiffs are entitled to claim arrears of rent for 25 months i.e. Rs.50,000/-. Insofar as the prayer for recovery of Rs.4,000/- per month as damages for use and occupation, trial Court relegated the issue to be determined separately under Order 20 Rule 12 C.P.C. Trial Court decreed the suit with a direction that the defendant shall vacate the suit property and hand over vacant possession by removing the superstructure and pay Rs.50,000/- as arrears of rent.
6. Being aggrieved by the judgment of the trial Court, appellant/defendant filed appeal in A.S.No.66 of 2008. In the appeal, appellant/defendant mainly contended that the suit was not decided on merits and therefore, it is to be treated as an exparte decree and prayed for remanding the matter to trial Court to afford opportunity to the defendant to give evidence. Considering various decisions relied upon by the plaintiffs, lower appellate Court held that when there is sufficient materials available on record, there was no necessity to remand the matter and that the appellate Court itself could decide the matter one way or the other. Pointing out that in spite of several opportunities granted, the defendant did not appear for cross examination, lower appellate court held that the plea of the appellant to remand the case was only for the purpose of protracting the proceedings. Pointing out receipt of Ex.A3-statutory notice, lower appellate Court held that there was valid termination of tenancy and confirming the findings of the trial Court, lower appellate Court dismissed the appeal granting three months' time to the defendant for vacating and handing over vacant possession.
7. Challenging concurrent findings of Courts below, defendant has filed this Second Appeal. Respondents/plaintiffs have entered appearance by filing caveat and insisted for early disposal on the ground that the first respondent is a widow, who has been fighting out the litigation from 1997. With the consent of both the counsel for appellant and respondents, at the time of admission itself the Second Appeal was taken up for final hearing.
8. The following substantial questions of law arise for consideration in this Second Appeal.
"1. Whether the lower appellate Court is right in not remanding the appeal to the trial Court for fresh trial especially when there is no sufficient evidence available and the appellant could not fully participate in the trial?
2. Whether the trial Court is right in closing the evidence on the side of the defendant and proceeded to deliver judgment without affording sufficient opportunity to the defendant to defend his case?
3. Whether the statutory notice issued in Ex.A3 under Section 106 of Transfer of Property Act, is valid and satisfied the requirements of law?"
9. Learned counsel for appellant contended that the trial Court without granting further opportunity erroneously closed the evidence on the defendant's side and proceeded to decree the suit with available materials on record and lower appellate Court ought to have remanded the case to the trial Court for the purpose of adducing further evidence.
10. It is seen from the records on 04.03.2008, defendant was examined in chief. Subsequently, it was adjourned to 11.03.2008, 26.03.2008, 28.03.2008 and 08.04.2008 for cross examination of the defendant. In spite of several opportunities, defendant did not appear for cross examination. Keeping in view his absence and unwillingness to participate in the trial, trial Court raised presumption that the defendant had purposely avoided to face trial and closed the evidence invoking Order 17 Rule 3 C.P.C. Order 17 Rule 3 C.P.C. applies only when the party, who was granted adjournment, failed to produce evidence or to do certain specified acts. Trial Court has adjourned the case for appearance of defendant (D.W.1) for his cross examination and in spite of repeated adjournments, he did not appear. In view of his non participation, trial Court was right in invoking Order 17 Rule 3 of C.P.C. and proceeding to decide the suit. The words 'notwithstanding such default' clearly implied that the Court can proceed with the disposal of the suit on merits in spite of the default. There must be some materials for decision on merits, even though the materials may not be technically interpreted as evidence. As pointed out earlier, defendant has given his evidence in chief examination and he was absent when the case was adjourned for his cross examination. Evidence on the plaintiffs' side was already over and the defendant was examined in chief. With the available evidence and materials on record, notwithstanding default of the defendant, trial Court was justified in proceeding with the suit and pronouncing judgment. Since it was a decision on merits, there was no occasion for the appellate Court to remand the matter to the trial Court and substantial question No.(2) is answered against the appellant.
11. Insofar as first question of law is concerned, referring to various decisions, lower appellate Court observed that the appellate Court, before remanding the matter for fresh disposal to the lower Court under Order 41 Rule 23 C.P.C., must come to a conclusion that the decision of the trial Court is liable to be reversed or set aside and in the absence of such a conclusion, power of remand is not available to the appellate Court. Pointing out various dates on which the case was adjourned for cross examination of the defendant and in spite of several opportunities, the defendant did not appear for cross examination, lower appellate Court observed that the plea for remand is made only for protracting the proceedings and there is no scope for remitting the matter back to the trial Court. Views of the appellate Court does not suffer from any serious infirmity warranting interference.
12. Main defence plea is that the statutory notice issued under Ex.A3 is invalid and there is no valid termination of tenancy as contemplated under Section 106 of Transfer of Property Act. Ex.A3 notice was issued on 29.08.1997 terminating the lease with effect from 24.09.1997. It was contended that Ex.A3 notice was issued terminating the tenancy within a month and therefore Ex.A3 would not be a valid notice and that there was no valid termination of tenancy. As pointed out by Courts below, Ex.A3 notice was received by the defendant under Ex.A4 acknowledgment. Defendant had also sent a reply through Ex.A5. A notice issued, even though defective, was accepted by the defendant and acted upon by sending reply and subsequently he cannot raise any objection regarding the validity of the said notice.
13. In any event, defence plea of defective notice is not available to the defendant in view of Section 106 of Transfer of Property Amendment Act, 2002 (3/2002 w.e.f. 31.12.2002). The amended section provided for the lease of an immovable property for agricultural and manufacturing purposes terminable by six months' notice expiring with the end of the year of the tenancy. A lease for immovable property for any other purposes will be deemed to be from month to month terminable by 15 days' notice.
14. Section 3 of Transfer of Property (Amendment) Act, 2002 provides for transitory provision, which reads as under:
"3. Transitory provision:- The provisions of section 106 of the principal Act, as amended by section 2, shall apply to:-
(a) all notices in pursuance of which any suit or proceeding is pending at the commencement of this Act; and
(b) all notices which have been issued before the commencement of this Act, but where no suit or proceeding has been filed before such commencement."
As per Section 3 Transitory provision, the amended Section 106 shall apply to pending proceedings at the commencement of the Act i.e. 31.12.2002. In the present case, suit in O.S.No.402 of 2007 was pending in the trial Court at the time when amended Act came into force. In view of the amended provision - Section 106 of Transfer of Property Act, 15 days' notice is sufficient for terminating the tenancy and while so, the defence plea that Ex.A3-statutory notice is defective does not merit acceptance. Accordingly, substantial question No.(3) is answered against the appellant.
15. Courts below recorded concurrent findings of fact that the defendant committed default in paying the rent and that there was valid termination of tenancy. The concurrent findings of fact do not suffer from infirmity. Learned counsel for the appellant raised yet another contention that Courts below were not justified in passing decree for eviction without considering the prejudice caused to the appellant and his customers. As such, the above contention is not all a substantial question of law to be considered as on date.
16. In the result, judgment of Sub Court, Pollachi in A.S.No.66 of 2008 is confirmed and Second Appeal is dismissed.
17. At the time of passing the judgment dismissing the Second Appeal, learned counsel for the appellant submitted that the appellant-Arunagiri is running LPG business for quite a long time and requested that sufficient time may be given to him to vacate and hand over vacant possession. Learned counsel further submitted that the appellant required at least one year time to make alternative arrangement. Learned counsel also submitted that in view of the direction of Petroleum and Explosives Safety Organisation (PESO), in the order dated 12.06.2008, the appellant may be permitted to put up construction of dwarf wall and barbed wire fencing in front of the godown. Learned counsel has also filed affidavit of the appellant-Arunagiri, who was present in Court. In the affidavit, appellant has stated that the arrears of rent payable by him as on date is Rs.3,00,000/- (Rupees three lakhs only) and that he had already deposited a sum of Rs.25,000/- and balance arrears payable by him is Rs.2,75,000/- (Rupees two lakhs and seventy five thousand only). In the affidavit, the appellant has undertaken to pay the entire arrears of rent of Rs.2,75,000/- within a period of two months. Further, appellant has also undertaken to pay enhanced rent/damages for use and occupation in future at the rate of Rs.5,000/- per month.
18. Recording the affidavit of appellant-Arunagiri, the following directions are passed:-
i. Appellant has to vacate and hand over vacant possession of the premises by removing all superstructure including dwarf wall and barbed wire fencing and all other extra fittings that he has made in the suit property on or before 31.12.2010;
ii. Appellant shall pay entire arrears of rent of Rs.2,75,000/-
within a period of two months from today by way of demand draft drawn in the name of the first plaintiff Dr.Jayalakshmi and the demand draft has to be handed over to the counsel on record in the Second Appeal on or before 14.02.2010;
iii. Appellant shall also pay enhanced rent/damages for use and occupation at the rate of Rs.5,000/- per month from 01.01.2010 till 31.12.2010 by way of demand draft. The said demand draft should reach the first plaintiff-Dr.Jayalakshmi on or before 15th of every English calendar month through registered post with acknowledgment due;
iv. Having regard to the averments in paragraph 4 of the affidavit, appellant is permitted to construct dwarf wall and barbed wire fencing as per the directions of the Petroleum and Explosives Safety Organisation. It is made clear that at the time of vacating and handing over vacant possession, appellant should remove all such dwarf wall and barbed wife fencing and other extra fittings that he had made in addition to the removal of superstructure put up by him;
v. Respondents/plaintiffs are permitted to withdraw immediately a sum of Rs.25,000/- deposited to the credit of O.S.No.402 of 2007 on the file of District Munsif, Pollachi; and
vi. It is made clear that no further extension would be granted to the appellant beyond 31.12.2010.
19. With the above directions, Second Appeal is dismissed. No costs. Consequently, M.P.No.1 of 2009 is also dismissed.
ATR
To
1. The Subordinate Judge
Pollachi.
2. The District Munsif
Pollachi
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