Application filed by defendant u/s 9 not tantamount to waiver of notice.

RAMANUJAM, J. :- This second appeal raises a substantial question of law as to whether the filing of an application under S.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-Devastanam filed a suit, O.S. 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 4-12-1965, for a period of five years on a monthly rental of Re. 1, that the tenancy commenced from 4-12-1965 and ended on 3-1-1970, 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 12-5-1973, asking him to deliver vacant possession of the demised land by the expiry of the month of July 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 defendant admitted that he is a monthly tenant in occupation of the suit property, he having been in possession of the same for the last 30 years and staled that he has put up a superstructure in the suit land and therefore he is entitled to the benefit of the Tamil Nadu City Tenants Protection Act and that the notice issued by the plaintiff asking the defendant to quit and deliver vacant possession of the suit property is invalid in law as it does not satisfy the requirements of Section 11 of the said Act. Along with the written statement he also filed an application under Section 9 of the Act for purchase of the land.

4. 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 purchase the land under S.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, Ex.B-2 is nut valid, but that the filing of an application under Section 9 by the defendant amounts to a waiver of notice under Section 11 and that therefore the suit is maintainable. The trial Court also held that 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, in 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.

5. The defendant took the matter in appeal. The lower appellate Court held that as the application under Section 9 has been dismissed

as time barred, the filing of such an unsuccessful application cannot amount to a waiver of a notice under Section 11, that it is not open to the plaintiff to oppose the application under Section 9 on the ground of limitation and at the same time use it as a defence for its failure to give a proper notice as per Section 11 of the Act, that it cannot approbate and reprobate, that the plaintiff having elected to oppose the application under Section 9 as time barred the defendant can raise the plea of want of notice under Section 11, and that the waiver of a notice under Section 11, can arise only when there is a valid application under Section 9. The lower appellate Court also held that there is no proper notice under Section 11 which is mandatory and, therefore, the suit is not maintainable. In this view the lower appellate Court allowed the appeal and dismissed the suit.

6. In this second appeal the