Objection regarding issuance of notice not raised in W.S. by defendant.

T.N. Singaravelu, J.

1. The defendant in the suit is the appellant herein.

2. The respondent/plaintiff viz., Sri Kamakshi Amman Devasthanam (hereinafter referred to as the temple) filed the suit against the appellant/defendant for recovery of possession of a small plot of land adjoining the temple with the following averments: The defendant took the suit plot on lease from the temple on 1.7.1968 agreeing to pay a rent of Rs. 3/-per month and he put a superstructure with mud walls and thatched roofing for the purpose of using it as a cattle shed. He committed wilful default in the payment of rent and the temple issued a notice on 18.3.1974 calling upon the defendant to pay the arrears of rent and also vacate the premises. The defendant sent a reply disputing the correctness of the amount and sought protection under the Madras City Tenants Protection Act. The defendant is not entitled to any protection. Thereupon, the plaintiff sent a rejoinder on 1.5.1974 terminating the tenancy by 30.5.1975 and demanded vacant possession. The defendant did not comply with the same. Therefore the suit was filed for possession and for damages at the rate of Rs. 50/- per month.

3. The defendant/appellant contended in his written statement that there is no wilful default in payment of rent and that in any event, he is entitled to the benefits of the Madras City Tenants Protection Act, The defendant then filed an additional written statement wherein he contended that the plaintiff has no locus standi to file this suit since the office of Managing Trustee is in dispute.

4. The trial Court framed various issues and found that the defendant had not committed wilful default in payment of rent, that the premises are not required for any bona fide purpose and that the Managing Trustee of the temple has no locus standi to file the suit. Of course, the trial Court further held that the defendant is not entitled to the benefits of the Madras City Tenants Protection Act. In the end, the trial Court dismissed the suit.

5. The plaintiff preferred an appeal in A.S.No. 377 of 1978 and the learned Subordinate Judge found that the Managing Trustee of the temple is competent to file the suit, that the defendant is not entitled to the benefits of the Madras City Tenants Protection Act and that the tenancy had been validly terminated. Consequently, the appeal was allowed and the suit was decreed for recovery of possession with damages. The defendant has now come forward with the second Appeal.

6. The vital point raised in the Second Appeal is whether the notice to quit under Ex.A-3 dated 1.5.1974 is valid in law. The notice Ex.A-3 recites that the tenancy will be terminated by 30.5.1974 and not by the expiry of the end of the month and therefore, according to the learned Counsel for the appellant/defendant, the notice is not in conformity with Section 106 of the Transfer of Property Act. A preliminary objection was. raised on behalf of the respondent/plaintiff that this plea of want of proper notice should not be allowed to be taken in the Second Appeal. Of course, both in the written statement and in the additional written statement there is no plea by the defendant that the notice to quit was defective or bad in law. It was not even an issue before the trial Court. However, in the lower Appellate Court, this point appears to have been taken and the lower Appellate Court considered the same and found that the notice to quit was proper. Therefore the position is that this point was taken in the lower Appellate Court itself and it is not taken up for the first time in the Second Appeal.

7. Learned Counsel for the appellant/ defendant placed before me a ruling reported in J.C. Chatterjee v. Shri Sri Kishan Tandon for the proposition that the point as to termination of tenancy is essentially one of law and therefore it can be raised in Second Appeal and decided by the High Court. in fact, the substantial question of law that is framed in this Second Appeal is with refe