R.Ranganathan Vs. R.Jayaprakash - Court Judgment

SooperKanoon Citationsooperkanoon.com/927683
SubjectCivil
CourtChennai High Court
Decided OnJun-12-2012
Case NumberSecond Appeal No.1258 of 2001 and CMP.No.13191 of 2001
JudgeV.PERIYA KARUPPIAH, J.
ActsTransfer of Property Act - Section 106; Amendment Act - Section 3; Code of Civil Procedure,(CPC) 1908 - Section 100
AppellantR.Ranganathan
RespondentR.Jayaprakash
Appellant AdvocateMr.T.Viswanatha Rao, Adv.
Respondent AdvocateMr.A.Muthukumar, Adv.
Excerpt:
[v.periya karuppiah, j.] transfer of property act - section 106 -- the defendant sent reply notice on 11.07.1994. the notice under section 106 of transfer of property act sent by the plaintiffs is not a statutory notice. after hearing both parties, the first appellate court dismissed the said appeal by confirming the judgment and decree passed by the trial court. having aggrieved by the judgment and decree passed by the first appellate court, the plaintiffs have preferred the second appeal before this court challenging the judgment and decree passed by the first appellate court. the first appellate court had also, in its turn, affirmed the judgment reached by the trial court.second appeal filed under section 100 of civil procedure code against the judgment and decree dated 30.04.2001 made in a.s.no.18 of 2000 on the file of the additional district judge, chengalpet, confirming the judgment and decree dated 30.06.2000 made in o.s.no.674 of 1994 on the file of the district munsif, chengalpet.judgment1. this appeal is directed against the judgment and decree passed by the learned first appellate court in a.s.no.18 of 2000 dated 30.04.2001 in confirming the judgment and decree passed by the trial court made in o.s.no.674 of 1994 in dismissing the suit.2. the appellants were the plaintiffs and the respondent was the defendant before the trial court.3. the case of the plaintiffs before the trial court as stated in the plaint would be as follows:- a site, having 16 cents of land in s.no.378/2a of nandivaram village, belonging to the plaintiffs was orally leased out to the defendant for running a firewood depot about six years back on a monthly rent of rs.200/-. it is a single tenancy. later, 8 cents of land was acquired by the national highways for extending the road. after acquisition, the defendant is in possession of 3510 sq.ft of land belonging to the plaintiffs. the rent was also revised to rs.250/- per month. tenancy is calculated as per english calendar month. the rent has to be paid before 5th day of succeeding month. the said site was required by the plaintiffs for the purpose of putting up two residential houses in their respective portion. the plaintiffs have also obtained necessary plan approval, which expires on 06.07.1995. even though the defendant agreed to vacate the premises, for the past 2 = years the defendant has not vacated the premises, but filed o.s.no.448 of 1994 and obtained interim injunction restraining the plaintiffs from vacating the defendant from the premises. on 27.06.1994, the plaintiffs sent a legal notice for 'quit and deliver vacant possession by the tenancy month ending 31.08.1994' to the defendant. the defendant sent reply notice on 11.07.1994. the extent of vacant site was mentioned as 16 cents in all notices. the notice under section 106 of transfer of property act sent by the plaintiffs stating that the tenancy was cancelled as on 31.08.1994 and the defendant has to vacate and surrender the vacant possession, was received by the defendant on 12.08.1994 and replied on 03.09.1994. hence the suit.4. the objections raised by the defendant in his written statement would be as follows:- during the month of june 1994, the plaintiffs were arranging to evict the defendant without due process of law. hence, the defendant has filed a suit and obtained interim injunction. the defendant spent a sum of rs.10,000/- for filling and levelling the ground so as to suit to run his firewood business. the said business was permitted by the panchayat and the defendant is paying licence fee and professional tax. the notice under section 106 of transfer of property act sent by the plaintiffs is not a statutory notice. hence, the suit is liable to be dismissed.5. on the above pleadings the trial court framed necessary issues and entered trial and after appraising the evidence adduced before it, it came to the conclusion of dismissing the suit. while trying the suit before the trial court, yet another suit in o.s.no.448 of 1994, a suit for permanent injunction was clubbed together and a common judgment was pronounced. the said connected suit was also dismissed as against the claim of the respondent herein and it was not pursued in the appeal. however, the aggrieved plaintiffs in o.s.no.674 of 1994 preferred an appeal before the first appellate court in a.s.no.18 of 2000 challenging the judgment and decree passed in o.s.no.674 of 1994. after hearing both parties, the first appellate court dismissed the said appeal by confirming the judgment and decree passed by the trial court. having aggrieved by the judgment and decree passed by the first appellate court, the plaintiffs have preferred the second appeal before this court challenging the judgment and decree passed by the first appellate court.6. on admission of this appeal, this court has formulated the following substantial questions of law for consideration in this appeal:-1. whether the courts below are justified in relying on the evidence, which were not pleaded in the written statement do dismiss the suit ?2. whether the courts below are right in holding that the notice under section 106 of the transfer of property act is not valid ?3. whether the courts below are justified in not appreciating the evidence properly which resulted in dismissal of the suit ?4. whether the courts below are right in holding that the respondent is entitled to notice under section 106 of the transfer of property act ?7. heard mr.t.viswanatha rao, learned counsel for the appellants / plaintiffs and mr.a.muthukumar, learned counsel for the respondent / defendant.8. the learned counsel for the appellants / plaintiffs would submit in his argument that the suit was filed by the plaintiffs before the trial court for ejectment of the defendant from the suit premises. he would further submit that the said suit was erroneously dismissed by the trial court without appreciation of any evidence adduced by the plaintiffs. he would further submit that the trial court had failed to construe the tenancy month as english calendar month and instead it took the tenancy month was commencing from 5th of every english calendar month and ending with 4th day of the next month, which was not the case of the plaintiffs. he would further submit that the trial court has also decided on the mistaken attitude and has come to a conclusion that the notice issued by the plaintiffs to terminate the tenancy under section 106 of the transfer of property act was not in order. he would further submit that the first appellate court has also followed the suite of the trial court and had come to a conclusion with the misconception of the tenancy month as commenced from the 5th of every english calendar month and was ending with the 4th of next month. he would also submit that whatever be the tenancy month as to whether it was as per the english calendar month or it commenced on 5th of every english calendar month and was ending with 4th of next month, it was found that the tenancy was month to month and 15 days notice must be given for determination of tenancy. he would also submit that the said requisite of section 106 of transfer of property act was not considered by the courts below and they have erroneously found that the notice of termination of tenancy was not valid. he would further submit in his arguments that the notice of termination was given in ex.a15 on 09.08.1994 and the same was received by the defendant on 12.08.1994, in which the defendant was asked to surrender vacant possession by the end of 31.08.1994. he would also submit that the said notice was not found to be in compliance with section 106 of transfer of property act, since the tenancy month was taken by the courts below, as commenced from 5th of every english calendar month and ending with 4th of the next month. he would further submit that even if it is taken to be true after the amendment of section 106 of transfer of property act by the amendment act which came into enforcement on 01.01.2003, it is applicable to the pending proceedings even though the notice of termination has been sent prior to the commencement of the said enactment and therefore, as per the transitory provision in section 3 of the amendment act, the proceedings was initiated in the year 1994 and the first appeal was filed in the year 2000 and the judgment was pronounced on 30.04.2001 and the present appeal has been preferred in s.a.no.1258 of 2001 and this appeal was pending during the enforcement of the said act and therefore, the said act is applicable to the present appeal. he would also submit that the amended provision of section 106 of the transfer of property act is applicable to the present case, in which 15 days' notice is sufficient whether it was ending with the tenancy month or not. he would further submit that even if the tenancy month was considered to be the tenancy month as decided by both the courts below, 15 days notice ending with 31.08.1994 would a valid one because it is not necessary to terminate the tenancy at the end of the tenancy month as per the amended section 106 of the transfer of property act. furthermore, he would submit in his arguments that 15 days time from 12.08.1994 was there till 31.08.1994 and even otherwise it was not the statutory 15 days time, the suit was filed only on 05.10.1994 and therefore, more than 15 days time was available to the defendant to vacate the demised premises. he would further submit in his arguments that the concurrent findings reached by the courts below can be interfered when there are exceptions to do so. he would also submit that the change of law and the applicability of amended law to the second appeal due to the introduction of amendment act 3 of 2003 amending section 106 of transfer of property act would certainly change the course of decision and therefore, the findings of the lower court even though in accordance with the tenor of the unamended section 106 transfer of property act, such findings even though concurrent may be interfered. he would rely upon a judgment of the hon'ble apex court reported in 2007 (2) lw 945 (hero vinoth (minor) ..vs.. seshammal) in support of his argument. furthermore, he had also cited a judgment of this court reported in 2011 (2) lw 50 (aravindharaj adhithan ..vs.. r.perumal) for the applicability of the amended provisions of section 106 of transfer of property act to the present case and in respect of the calculation of 15 days, the period for vacating the premises. he would, therefore, request the court that the notice of termination issued in ex.a11 may be considered as a valid one and by virtue of the said notice, the defendant may be directed to vacate the premises and to hand over the possession of the suit property to the plaintiffs. he would, therefore, request the court to set aside the judgment and decree passed by the courts below and to allow the appeal and thereby, to decree the suit as prayed for.9. the learned counsel for the respondent / defendant would submit in his argument that both the courts below are perfectly in order in coming to the conclusion that the notice issued under section 106 of transfer of property act in ex.a15 was not valid one and the tenancy month was only commencing from 5th of every english calendar month and was ending with 4th day of the next month. he would also submit that the plaintiffs' witness had admitted that the said tenancy month was in between 5th of every english calendar month to 4th of next month and therefore, the notice of termination was not found valid. he would also submit that the amendment act 3 of 2003 was introduced only during the pendency of the second appeal and therefore, it cannot be blamed that the lower courts have committed error in the judgments pronounced by them. he would also submit that the provisions of amended section 106 of the transfer of property act is also not perfectly adhered to by virtue of issuing the notice under ex.a15 and the said notice was also not in compliance of the amended section 106 transfer of property act. he would, therefore, request the court that the ejectment suit filed by the plaintiffs is still liable to be dismissed for want of a valid termination notice. further, he would submit that the defendant is conducting a firewood shop for more than several decades and the business activities will be crippled in the event of the eviction order is passed in this appeal and the outstanding payments payable to the plaintiffs would also be stagnated and therefore, sufficient time may be given in the event the defendant is likely to be ejected from the premises. therefore, he would request the court to dismiss the appeal and to confirm the judgment and decree of the first appellate court.10. i have given anxious thoughts to the arguments advanced on either side.11. the suit has been filed by the plaintiffs against the defendant for ejectment and for other reliefs.12. prior to the filing of the said suit, the plaintiffs have issued a termination notice under section 106 of the transfer of property act and thereby, terminated the tenancy ending with 31.08.1994. the trial court found that the tenancy month was commencing from the 5th of every english calendar month and was ending with the 4th day of next english calendar month and the provisions of section 106 the transfer of property act would require a 15 days' notice for the monthly tenancy and it should have been given to the tenant for terminating the tenancy ending with the last day of the said tenancy month. having considered that the tenancy month was ending with 4th day of every english calendar month, the notice in ex.a15 was given ending with 31.08.1994 and therefore, the 15 days notice was not considered to be a valid one. on the said premise, the suit filed by the plaintiffs was dismissed. the first appellate court had also, in its turn, affirmed the judgment reached by the trial court.13. the said findings reached by both the courts below would be correct if the tenancy month was ending with every 4th day of english calendar month, since the amendment act has not come into force and the provisions of section 106 of the transfer of property act were not amended. no doubt, the findings reached by the courts below, that the tenancy month was ending with every 4th day of english calendar month, was purely on facts and it cannot be re-agitated before this court.14. however, the applicability of the amendment of section 106 of the transfer of property act cannot be agitated by the defendant that it is not applicable to the present case. admittedly, the present appeal was pending on the date of promulgation of the amendment act 3 of 2003. it is very clear in the transitory provision that the termination notice which was issued prior to the introduction of the amendment act and a suit or any proceedings pending therefrom could be attracted and applied with the said amended provisions. for better understanding, section 3 of the transfer of property (amendment) act, 2002 (3 of 2003) is extracted here 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".it is very clear from the provisions that the proceedings pending at the time of promulgation of the said act would apply with the amended provisions of section 106 of the transfer of property act. therefore, it is clear that the amendment provisions and the amended section 106 of the transfer of property act are applicable to the present case.15. when we apply the factual scenario in issuing ex.a15 in the light of the present amended provision of section 106 of transfer of property act, the said termination notice was issued on 09.08.1994 and it was received by the defendant on 12.08.1994 and the notice was terminating the tenancy by the end of 31.08.1994 and a period of more than 15 days is available in between the date of receipt and the termination of tenancy. it is not mandatory as per the amended provision of section 106 of the transfer of property act that the tenancy should have been terminated at the end of any tenancy month. therefore, the termination of tenancy through ex.a15 ending with 31.08.1994 is not a flaw to affect the notice of termination issued under ex.a15. the judgment of this court reported in 2011 (2) lw 50 (aravindharaj adhithan ..vs.. r.perumal) is also applicable to the present case. in the said judgment, 15 days time was considered to be a period to be commenced from the date of receipt of the notice and the date of filing of the suit. when we consider the date of filing of the suit i.e., on 05.10.1994, a period of nearly two months time was available for vacating the premises. therefore, i could see that the quit notice issued in ex.a15 has become valid in view of the introduction of amendment in section 106 of the transfer of property act.16. since it happened due to the promulgation of statute, namely, the amendment act 3 of 2003, even though the judgments and decrees passed by the courts below are concurrent, it has become necessary for this court to interfere with the said judgments so as to maintain the effect of change of law. the judgments of the hon'ble apex court reported in 2007 (2) lw 945 (hero vinoth (minor) ..vs.. seshammal) is a clear answer and the relevant passage would run as follows:- "general rule is that high court will not interfere with concurrent findings of the courts below   but it is not an absolute rule   there are the well recognized exceptions of the rule   when the approach of the trial court and lower appellate court was fundamentally wrong, the high court cannot be faulted for having gone into the question as to what was the proved intention of the party as culled out from the partition deed." 17. therefore, i am of the considered view that the dismissal of the suit filed by the plaintiffs, which was confirmed by the first appellate court, are necessarily to be set aside even though they are concurrent so as to render justice in the light of the changed law. accordingly, the judgment and decree passed by the first appellate court in dismissing the appeal confirming the judgment and decree passed by the trial court in dismissing the suit are liable to be interfered and set aside and the second appeal is allowable.18. for the foregoing discussions, i am of the considered view that the second appeal is allowed and the judgment and decree passed by the courts below are set aside and thereby, the suit filed by the plaintiffs before the trial court is decreed as prayed for with costs. considering the submissions made by the learned counsel for the respondent / defendant time for vacating the premised is fixed at two months. no order as to costs in this appeal. consequently, connected miscellaneous petition is closed.
Judgment:

Second Appeal filed under Section 100 of Civil Procedure Code against the Judgment and Decree dated 30.04.2001 made in A.S.No.18 of 2000 on the file of the Additional District Judge, Chengalpet, confirming the judgment and decree dated 30.06.2000 made in O.S.No.674 of 1994 on the file of the District Munsif, Chengalpet.

JUDGMENT

1. This appeal is directed against the judgment and decree passed by the learned first appellate court in A.S.No.18 of 2000 dated 30.04.2001 in confirming the judgment and decree passed by the trial court made in O.S.No.674 of 1994 in dismissing the suit.

2. The appellants were the plaintiffs and the respondent was the defendant before the trial court.

3. The case of the plaintiffs before the trial court as stated in the plaint would be as follows:-

 A site, having 16 cents of land in S.No.378/2A of Nandivaram village, belonging to the plaintiffs was orally leased out to the defendant for running a firewood depot about six years back on a monthly rent of Rs.200/-. It is a single tenancy. Later, 8 cents of land was acquired by the National Highways for extending the road. After acquisition, the defendant is in possession of 3510 sq.ft of land belonging to the plaintiffs. The rent was also revised to Rs.250/- per month. Tenancy is calculated as per English Calendar Month. The rent has to be paid before 5th day of succeeding month. The said site was required by the plaintiffs for the purpose of putting up two residential houses in their respective portion. The plaintiffs have also obtained necessary plan approval, which expires on 06.07.1995. Even though the defendant agreed to vacate the premises, for the past 2 = years the defendant has not vacated the premises, but filed O.S.No.448 of 1994 and obtained interim injunction restraining the plaintiffs from vacating the defendant from the premises. On 27.06.1994, the plaintiffs sent a legal notice for 'quit and deliver vacant possession by the tenancy month ending 31.08.1994' to the defendant. The defendant sent reply notice on 11.07.1994. The extent of vacant site was mentioned as 16 cents in all notices. The notice under Section 106 of Transfer of Property Act sent by the plaintiffs stating that the tenancy was cancelled as on 31.08.1994 and the defendant has to vacate and surrender the vacant possession, was received by the defendant on 12.08.1994 and replied on 03.09.1994. Hence the suit.

4. The objections raised by the defendant in his written statement would be as follows:-

 During the month of June 1994, the plaintiffs were arranging to evict the defendant without due process of law. Hence, the defendant has filed a suit and obtained interim injunction. The defendant spent a sum of Rs.10,000/- for filling and levelling the ground so as to suit to run his firewood business. The said business was permitted by the Panchayat and the defendant is paying licence fee and professional tax. The notice under Section 106 of Transfer of Property Act sent by the plaintiffs is not a statutory notice. Hence, the suit is liable to be dismissed.

5. On the above pleadings the trial court framed necessary issues and entered trial and after appraising the evidence adduced before it, it came to the conclusion of dismissing the suit. While trying the suit before the trial court, yet another suit in O.S.No.448 of 1994, a suit for permanent injunction was clubbed together and a common judgment was pronounced. The said connected suit was also dismissed as against the claim of the respondent herein and it was not pursued in the appeal. However, the aggrieved plaintiffs in O.S.No.674 of 1994 preferred an appeal before the first appellate court in A.S.No.18 of 2000 challenging the judgment and decree passed in O.S.No.674 of 1994. After hearing both parties, the first appellate court dismissed the said appeal by confirming the judgment and decree passed by the trial court. Having aggrieved by the judgment and decree passed by the first appellate court, the plaintiffs have preferred the Second Appeal before this Court challenging the judgment and decree passed by the first appellate court.

6. On admission of this appeal, this Court has formulated the following substantial questions of law for consideration in this appeal:-

1. Whether the courts below are justified in relying on the evidence, which were not pleaded in the written statement do dismiss the suit ?

2. Whether the courts below are right in holding that the notice under Section 106 of the Transfer of Property Act is not valid ?

3. Whether the courts below are justified in not appreciating the evidence properly which resulted in dismissal of the suit ?

4. Whether the courts below are right in holding that the respondent is entitled to notice under Section 106 of the Transfer of Property Act ?

7. Heard Mr.T.Viswanatha Rao, learned counsel for the appellants / plaintiffs and Mr.A.Muthukumar, learned counsel for the respondent / defendant.

8. The learned counsel for the appellants / plaintiffs would submit in his argument that the suit was filed by the plaintiffs before the trial court for ejectment of the defendant from the suit premises. He would further submit that the said suit was erroneously dismissed by the trial court without appreciation of any evidence adduced by the plaintiffs. He would further submit that the trial court had failed to construe the tenancy month as English Calendar month and instead it took the tenancy month was commencing from 5th of every English Calendar month and ending with 4th day of the next month, which was not the case of the plaintiffs. He would further submit that the trial court has also decided on the mistaken attitude and has come to a conclusion that the notice issued by the plaintiffs to terminate the tenancy under Section 106 of the Transfer of Property Act was not in order. He would further submit that the first appellate court has also followed the suite of the trial court and had come to a conclusion with the misconception of the tenancy month as commenced from the 5th of every English Calendar month and was ending with the 4th of next month. He would also submit that whatever be the tenancy month as to whether it was as per the English Calendar month or it commenced on 5th of every English Calendar month and was ending with 4th of next month, it was found that the tenancy was month to month and 15 days notice must be given for determination of tenancy. He would also submit that the said requisite of Section 106 of Transfer of Property Act was not considered by the courts below and they have erroneously found that the notice of termination of tenancy was not valid. He would further submit in his arguments that the notice of termination was given in Ex.A15 on 09.08.1994 and the same was received by the defendant on 12.08.1994, in which the defendant was asked to surrender vacant possession by the end of 31.08.1994. He would also submit that the said notice was not found to be in compliance with Section 106 of Transfer of Property Act, since the tenancy month was taken by the courts below, as commenced from 5th of every English Calendar month and ending with 4th of the next month. He would further submit that even if it is taken to be true after the amendment of Section 106 of Transfer of Property Act by the amendment Act which came into enforcement on 01.01.2003, it is applicable to the pending proceedings even though the notice of termination has been sent prior to the commencement of the said enactment and therefore, as per the transitory provision in Section 3 of the Amendment Act, the proceedings was initiated in the year 1994 and the first Appeal was filed in the year 2000 and the judgment was pronounced on 30.04.2001 and the present appeal has been preferred in S.A.No.1258 of 2001 and this appeal was pending during the enforcement of the said Act and therefore, the said Act is applicable to the present appeal. He would also submit that the amended provision of Section 106 of the Transfer of Property Act is applicable to the present case, in which 15 days' notice is sufficient whether it was ending with the tenancy month or not. He would further submit that even if the tenancy month was considered to be the tenancy month as decided by both the courts below, 15 days notice ending with 31.08.1994 would a valid one because it is not necessary to terminate the tenancy at the end of the tenancy month as per the amended Section 106 of the Transfer of Property Act. Furthermore, he would submit in his arguments that 15 days time from 12.08.1994 was there till 31.08.1994 and even otherwise it was not the statutory 15 days time, the suit was filed only on 05.10.1994 and therefore, more than 15 days time was available to the defendant to vacate the demised premises. He would further submit in his arguments that the concurrent findings reached by the courts below can be interfered when there are exceptions to do so. He would also submit that the change of law and the applicability of amended law to the Second Appeal due to the introduction of Amendment Act 3 of 2003 amending Section 106 of Transfer of Property Act would certainly change the course of decision and therefore, the findings of the lower court even though in accordance with the tenor of the unamended Section 106 Transfer of Property Act, such findings even though concurrent may be interfered. He would rely upon a judgment of the Hon'ble Apex Court reported in 2007 (2) LW 945 (Hero Vinoth (minor) ..vs.. Seshammal) in support of his argument. Furthermore, he had also cited a judgment of this Court reported in 2011 (2) LW 50 (Aravindharaj Adhithan ..vs.. R.Perumal) for the applicability of the amended provisions of Section 106 of Transfer of Property Act to the present case and in respect of the calculation of 15 days, the period for vacating the premises. He would, therefore, request the Court that the notice of termination issued in Ex.A11 may be considered as a valid one and by virtue of the said notice, the defendant may be directed to vacate the premises and to hand over the possession of the suit property to the plaintiffs. He would, therefore, request the Court to set aside the judgment and decree passed by the courts below and to allow the appeal and thereby, to decree the suit as prayed for.

9. The learned counsel for the respondent / defendant would submit in his argument that both the courts below are perfectly in order in coming to the conclusion that the notice issued under Section 106 of Transfer of Property Act in Ex.A15 was not valid one and the tenancy month was only commencing from 5th of every English Calendar month and was ending with 4th day of the next month. He would also submit that the plaintiffs' witness had admitted that the said tenancy month was in between 5th of every English Calendar month to 4th of next month and therefore, the notice of termination was not found valid. He would also submit that the Amendment Act 3 of 2003 was introduced only during the pendency of the Second Appeal and therefore, it cannot be blamed that the lower courts have committed error in the judgments pronounced by them. He would also submit that the provisions of amended Section 106 of the Transfer of Property Act is also not perfectly adhered to by virtue of issuing the notice under Ex.A15 and the said notice was also not in compliance of the amended Section 106 Transfer of Property Act. He would, therefore, request the Court that the ejectment suit filed by the plaintiffs is still liable to be dismissed for want of a valid termination notice. Further, he would submit that the defendant is conducting a firewood shop for more than several decades and the business activities will be crippled in the event of the eviction order is passed in this appeal and the outstanding payments payable to the plaintiffs would also be stagnated and therefore, sufficient time may be given in the event the defendant is likely to be ejected from the premises. Therefore, he would request the Court to dismiss the appeal and to confirm the judgment and decree of the first appellate court.

10. I have given anxious thoughts to the arguments advanced on either side.

11. The suit has been filed by the plaintiffs against the defendant for ejectment and for other reliefs.

12. Prior to the filing of the said suit, the plaintiffs have issued a termination notice under Section 106 of the Transfer of Property Act and thereby, terminated the tenancy ending with 31.08.1994. The trial court found that the tenancy month was commencing from the 5th of every English Calendar month and was ending with the 4th day of next English Calendar month and the provisions of Section 106 the Transfer of Property Act would require a 15 days' notice for the monthly tenancy and it should have been given to the tenant for terminating the tenancy ending with the last day of the said tenancy month. Having considered that the tenancy month was ending with 4th day of every English Calendar month, the notice in Ex.A15 was given ending with 31.08.1994 and therefore, the 15 days notice was not considered to be a valid one. On the said premise, the suit filed by the plaintiffs was dismissed. The first appellate court had also, in its turn, affirmed the judgment reached by the trial court.

13. The said findings reached by both the courts below would be correct if the tenancy month was ending with every 4th day of English Calendar month, since the Amendment Act has not come into force and the provisions of Section 106 of the Transfer of Property Act were not amended. No doubt, the findings reached by the courts below, that the tenancy month was ending with every 4th day of English Calendar month, was purely on facts and it cannot be re-agitated before this Court.

14. However, the applicability of the amendment of Section 106 of the Transfer of Property Act cannot be agitated by the defendant that it is not applicable to the present case. Admittedly, the present appeal was pending on the date of promulgation of the Amendment Act 3 of 2003. It is very clear in the transitory provision that the termination notice which was issued prior to the introduction of the Amendment Act and a suit or any proceedings pending therefrom could be attracted and applied with the said amended provisions. For better understanding, Section 3 of the Transfer of Property (Amendment) Act, 2002 (3 of 2003) is extracted here 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".

It is very clear from the provisions that the proceedings pending at the time of promulgation of the said Act would apply with the amended provisions of Section 106 of the Transfer of Property Act. Therefore, it is clear that the amendment provisions and the amended Section 106 of the Transfer of Property Act are applicable to the present case.

15. When we apply the factual scenario in issuing Ex.A15 in the light of the present amended provision of Section 106 of Transfer of Property Act, the said termination notice was issued on 09.08.1994 and it was received by the defendant on 12.08.1994 and the notice was terminating the tenancy by the end of 31.08.1994 and a period of more than 15 days is available in between the date of receipt and the termination of tenancy. It is not mandatory as per the amended provision of Section 106 of the Transfer of Property Act that the tenancy should have been terminated at the end of any tenancy month. Therefore, the termination of tenancy through Ex.A15 ending with 31.08.1994 is not a flaw to affect the notice of termination issued under Ex.A15. The judgment of this Court reported in 2011 (2) LW 50 (Aravindharaj Adhithan ..vs.. R.Perumal) is also applicable to the present case. In the said judgment, 15 days time was considered to be a period to be commenced from the date of receipt of the notice and the date of filing of the suit. When we consider the date of filing of the suit i.e., on 05.10.1994, a period of nearly two months time was available for vacating the premises. Therefore, I could see that the Quit Notice issued in Ex.A15 has become valid in view of the introduction of amendment in Section 106 of the Transfer of Property Act.

16. Since it happened due to the promulgation of statute, namely, the Amendment Act 3 of 2003, even though the judgments and decrees passed by the courts below are concurrent, it has become necessary for this Court to interfere with the said judgments so as to maintain the effect of change of law. The judgments of the Hon'ble Apex Court reported in 2007 (2) LW 945 (Hero Vinoth (minor) ..vs.. Seshammal) is a clear answer and the relevant passage would run as follows:-

 "General rule is that High Court will not interfere with concurrent findings of the Courts below   But it is not an absolute rule   There are the well recognized exceptions of the rule   When the approach of the trial court and lower appellate court was fundamentally wrong, the High Court cannot be faulted for having gone into the question as to what was the proved intention of the party as culled out from the Partition deed."

 17. Therefore, I am of the considered view that the dismissal of the suit filed by the plaintiffs, which was confirmed by the first appellate court, are necessarily to be set aside even though they are concurrent so as to render justice in the light of the changed law. Accordingly, the judgment and decree passed by the first appellate court in dismissing the appeal confirming the judgment and decree passed by the trial court in dismissing the suit are liable to be interfered and set aside and the Second Appeal is allowable.

18. For the foregoing discussions, I am of the considered view that the Second Appeal is allowed and the judgment and decree passed by the courts below are set aside and thereby, the suit filed by the plaintiffs before the trial court is decreed as prayed for with costs. Considering the submissions made by the learned counsel for the respondent / defendant time for vacating the premised is fixed at two months. No order as to costs in this appeal. Consequently, connected Miscellaneous Petition is closed.