AGATHEESWARAR PRASANNA VENKATESA PERUMAL DEVASTHANAM Vs. M NARASIMHAN

JUDGEMENT

(1.) THIS second appeal raises a substantial question of law as to whether the filing of an application under section 9 of the City Tenants. Protection Act, hereinafter referred to as the Act, by the defendant amounts to a waiver of notice under section 11 and whether the suit out of which the second appeal arises is maintainable in spite of there being no valid notice as contemplated under section 11.

(2.) THE appellant-Devasthanam filed a suit, O.S. No. 1185 of 1974 on the file of the City Civil Court, Madras for delivery of vacant possession of the suit property bearing R.S. No. 452|29 in Nungambakkam measuring 2114 sq. ft. Its case as set out in the plaint was that the defendant became its tenant by a registered lease deed dated 4th December, 1965, for a period of five years on a monthly rental of Rs. 1, that the tenancy commenced from 4th December, 1965 and ended on 3rd November, 1970, and that after the expiry of the lease the tenant was holding over without surrendering possession. THErefore a notice was issued to the defendant on 12th May, 1973, asking him to deliver vacant possession of the demised land by the expiry of the month of June, 1973. In spite of the notice the defendant did not surrender possession and hence the plaintiff was constrained to file the suit for delivery of vacant possession after removing the superstructure put up by him.

(3.) THE trial Court inter alia, framed the following two issues: (1) whether the notice issued by the plaintiff is legal and valid under the Act and (2) whether the defendant is entitled to the protection under the Act and whether he is entitled to purchase the land under section 9 and if so what is the value payable by the defendant to the plaintiff. THE trial Court took the suit as well as the application under section 9 together for trial. It held that the notice issued prior to the suit, Exhibit B-2, is not valid, but that the filing of an application under section 9 by the defendant amounts to a waiver of notice under section 9 and that therefore the suit is maintainable. THE trial Court also held that the defendant is not entitled to the benefits of section 9 of the Act as his application under that section is barred by limitation and therefore it is not necessary to fix the value of the land. In this view the trial Court decreed the suit as prayed for and dismissed the application under section 9 filed by the defendant.