1. This second appeal is focussed by the defendant animadverting upon the judgment and decree dated 07.07.2011 made in A.S.No.33 of 2010 on the file of the Subordinate Court, Kovilpatti, in confirming the judgment and decree dated 19.02.2010 made in O.S.No.32 of 2008 on the file of the District Munsif Court, Vilathikulam.
2. The parties, for the sake of convenience, are referred to hereunder according to their litigative status and ranking before the trial Court.
3. A recapitulation and a re'sume' of facts absolutely necessary and germane for the disposal of this second appeal would run thus: The plaintiff filed the suit as against his erstwhile tenant for eviction and for arrears of rent.
4. The defendant resisted the suit by filing the written statement setting out various pleas.
5. Whereupon the trial Court framed the relevant issues.
6. During trial, P.W.1 was examined and Exs.A.1 and A.2 were marked on the side of the plaintiff. D.W.1 to D.W.3 were examined and no documentary evidence was let in on the side of the defendant.
7. Whereupon the trial Court decreed the suit, as against which the appeal was filed by the defendant for nothing but to be dismissed.
8. Being aggrieved by and dissatisfied with the judgment and decree of both the Courts below, the present second appeal has been filed by the defendant on various grounds and also suggesting the following substantial questions of law:
(a) Without giving any finding whether the plaintiff has given proper notice as contemplated under Sec 106 of Transfer of Property Act, can the Court decree a suit for eviction filed by the plaintiff? (b) Whether the Judgment and Decree of the First Appellate court is perverse as it had merely reproduced evidence of witnesses and did not discuss the issue?
(c) Whether the First Appellate Court can pass a Decree and Judgment without framing points for determination as contemplated under Order 41 of C.P.C?
(d) Whether the Judgment and Decree of the Courts below is vitiated in granting relief of payment of arrear of rent without considering that the plaintiff had not produced rent receipt and examine his agent? (e) Whether the Courts in below are perverse as they had not drawn adverse inference against the plaintiff as he did not produce rent receipts, which he allegedly in possession? (extracted as such.)
9. The dictum laid down by the Honourable Apex Court in the following decisions:
(i) Hero Vinoth (Minor) v. Seshammal reported in (2006) 5 Supreme Court Cases 545.
(ii) Kashmir Singh v. Harnam Singh and another reported in 2008 (4) SCALE 300 and
(iii) State Bank of India and others v. S.N.Goya reported in 2009-1-L.W.1; would be to the effect that under Section 100 of the Code of Civil Procedure, a Second Appeal cannot be entertained, unless a substantial question of law is involved.
10. The Honourable Apex Court, time and again, reiterated the point that in second appeal, as per Section 100 of the Civil Procedure Code, interference is possible if at all there is any perversity or illegality in the judgments of the Courts below or total absence in considering the evidence available on record or misreading of evidence on the part of the Courts below.
11. Keeping in mind the aforesaid dictum, I heard the arguments of the learned Counsel for the defendant at the initial stage itself.
12. Accordingly, if considered, it is crystal clear that both the Courts below au faith with law and au curante with facts, dealt with the matter.
13. The learned Counsel for the defendant would submit that there was no issue framed relating to the validity or otherwise of the termination notice issued under Section 106 of the Transfer of Property Act.
14. I recall and recollect the maxim Judicis est judicare secundum allegata et probata. [It is the proper role of a judge to decide according to the allegations and proofs.]. Unless there are pleas to that effect, the question of pressing into service any new plea and that too, at the stage of second appeal, would not arise.
15. Section 106 of the Transfer of Property Act, is also reproduced hereunder for ready reference:
Section 106. Duration of certain leases in absence of written contract or local usage.-
(1) In the absence of a contract or local law or usage to the contrary, a lease of immovable property for agricultural or manufacturing purposes shall be deemed to be a lease from year to year, terminable, on the part of either lessor or lessee, by six months' notice; and a lease of immovable property for any other purpose shall be deemed to be a lease from month and month, terminable, on the part of either lessor or lessee, by fifteen days' notice.
(2) Notwithstanding anything contained in any other law for the time being in force, the period mentioned in sub-section (1) shall commence from the date of receipt of notice.
(3) A notice under sub-section (1) shall not be deemed to be invalid merely because the period mentioned therein falls short of the period specified under that sub-section.
(4) Every notice under sub-section (1) must be in writing, signed by or on behalf of the person giving it, and either be sent by post to the party who is intended to be bound by it or be tendered or delivered personally to such party, or to one of his family or servants at his residence, or (if such tender or delivery is not practicable) affixed to a conspicuous part of the property.
16. It appears that the termination notice dated 16.06.2008 was issued by the landlord to the tenant and it was received on the same day by the tenant.
17. As per the statutory requirements, there should be clear 15 days from the date of notice ending with the tenancy month and defect if any in the notice, it is curable in appropriate circumstances as found embodied in the cited provision of law supra. Here, the suit itself appears to have been filed on 04.08.2008. Wherefore, it leads the Court to the conclusion that long after the issuance of the said notice, the suit was filed and as per the current law as found embodied in the amended Section 106 of the Transfer of Property Act, nothing could be found fault with the procedure adopted by the plaintiff long after 15 days, so to say after the expiry of almost a month and a half, the suit was filed. Hence, absolutely, there is nothing to look askance at the judgments and decrees of both the Courts below.
18. The learned Counsel for the defendant would submit that strictly in accordance with Order 41, the first appellate Court did not frame the points for consideration.
19. While concurring with the judgments of the Courts below and that too when there are no viable or plausible grounds as found set out in the grounds of appeal, the first appellate Court cannot be expected to meander of its own accord and conduct a broad based roving probe and see as to whether any favourable point is available for the appellant/defendant.
20. Accordingly, I am of the considered view that absolutely, there is no merit in this second appeal and no question of law much less a substantial question of law arises for consideration in this matter.
21. In the result, the second appeal is dismissed, confirming the judgment and decree dated 07.07.2011 made in A.S.No.33 of 2010 on the file of the Subordinate Court, Kovilpatti, in confirming the judgment and decree dated 19.02.2010 made in O.S.No.32 of 2008 on the file of the District Munsif Court, Vilathikulam. Consequently, the connected Miscellaneous Petition is dismissed. No costs.