KANNAN Vs. KANAGAVALLI AMMAL

JUDGEMENT

(1.) HAVING failed in both the courts below, the defendant has preferred this second appeal. The suit is for possession of a building which does not come under the Rent Control Act. The only question that was before the courts below as well as before me is whether the notice Ex. A-2, dated 15. 4. 1989 given by the plaintiff/ landlord confirms to Sec. 106 of the Transfer of property Act. Both the courts have held that the said notice conforms to the requirements under Sec. 106 and concurrently decreed the suit. Since only a very short point is involved, I ordered notice of motion and pursuant to the notice of motion, the respondent has appeared through counsel and I have heard the arguments of both the counsels.

(2.) EX. A-2 notice dated 15. 4. 1989 terminates the tenancy of the defendant by the end of May, 1989 and calls upon the defendant to deliver possession of the building on 1. 6. 1989. But the learned counsel for the appellant lays very great emphasis on the admission made by the plaintiff in ex. A-2 stating that the tenancy commences from 5th of every English calendar month. The learned counsel argues that as per Sec. 106, the 15 days notice contemplated thereunder should expire "with the end of a month of the tenancy". So, according to the said counsel since however as per EX. A-2 the tenancy commences from 5th of every English calendar month, the 15 days notice must expire with 4th of the month succeeding to the date of EX. A-2 notice. But actually it is not so. In this connection, he also relied on chairmani Nadar v. Rajeswari, 1983 T. N. L. J. 208, which holds that when the above referred to requirements under Sec. 106 had not been strictly complied with, the notice would be defective one. But, the point here is whether there would be a "contract to the contrary" spoken to in Sec. 106 itself or there would be waiver of the notice stipulated therein, in view of the following features pointed out by the learned counsel for the respondent: 1. Though EX. A-2 says that the tenancy commences from 5th of every English calendar month, in para 4 of the plaint, it has been specifically stated that "that tenancy is according to the English calendar month", and that with reference to this allegation as well as the other allegation in the said para-4 there is no denial at all in the written statement. It is so. I also find that there is no denial in the written statement. No doubt in the written statement the defendant has stated vaguely that the notice given was not in accordance with Sec. 106 of Transfer of property Act. 2. Further in EX. A-3, dated 20. 4. 1989, the reply sent by the defendant to EX. A-2 the defendant has not taken the stand that EX. A-2 notice was defective in any way. I also find that in EX. A-3 such a stand has not been taken at all and that EX. A-2 notice seeks to determine the tenancy by the end of May, 1989 and not by the end of 4th of the succeeding month.

(3.) AFTER the judgment was delivered, the learned counsel for the appellant requested time for vacating the suit building and the learned counsel for the respondent also has no objection provided the defendant tenant files an affidavit with an undertaking that he would positively vacate the premises within the said period. Accordingly three months time is granted from this date provided the appellant filed an affidavit within two weeks from today undertaking to vacate the suit building within the abovesaid period positively. .