G. Ramanujam, J.
1. This second appeal raises a substantial question of law as to whether the filing of an application under Section 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-Devasthanam filed a suit, O.S. No. 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. 452129 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 4th December, 1965, for a period of five years on a monthly rental of Rs. 1, that the tenancy commenced from 4th December, 1965 and ended on 3rd November, 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 12th May, 1973, asking him to deliver vacant possession of the demised land by the expiry of the month of June, 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 stated 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 the protection under the Act and whether he is entitled to purchase the land under Section 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, Exhibit B-2, is not valid, but that the filing of an application under Section 9 by the defendant amounts to a waiver of notice under Section 9 and. that therefore the suit is maintainable. The trial Court also held that the 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 to 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 learned Counsel for the appellant did not question the finding of both the Courts below that the notice issued under Section 11 by the plaintiff is invalid in law. Even otherwise, a perusal of the notice Exhibit B-2, would clearly show that it is not in accordance with Section 11. Therefore we have to proceed on the basis that in this case there has been no proper notice under Section 11. This leads us to the question as to whether the suit is maintainable without a proper notice under Section 11.
7. It is well-established that Section 11 is mandatory and no suit in ejectment can be maintained without a notice under that section, where the defendant is entitled to the benefits of the Act. Section 11 of the Act is as follows:
11. Notice before institution of suits or applications against tenants.--No suits in ejectment or applications under Section 41 of the Presidency Small Causes Courts Act, 1882, shall be instituted or presented against a tenant until the expiration of three months next after notice in writing has been given to him requiring him to surrender possession, of the land and building and offering to pay compensation for the building and trees, if any, and stating the amount thereof.
A copy of such notice shall at the same time he sent in the case of property situated in the City of Madras to the Commissioner of Corporation of Madras, or in, the case of property situated in any municipal town, township or village to which this Act is extended to the Executive Authority of the municipality or township or Executive Officer of the Panchayat as the case may be or any other authority as may be notified by the Government.
8. In Ganesa Naidu v. Hallaram Singh (1973) 1 M.L.J. 507 : 45 L.W. 483 : A.I.R. 1937 Mad. 648, Pandurang Row, J., had laid down that the provisions of Section 11 were mandatory and that failure to observe them would entail the consequence of the dismissal of the suit. In Vedachala Naicker v. Duraiswami Mudaliar : AIR1951Mad593 , Chandra Reddi, J. (as he then was), was inclined to take the view that the only consequence of the failure to observe the provisions of Section 11 of the Act is the dismissal of the suit and that it does not affect the institution of the suit, that Section 11 having been enacted for the benefit of the tenant and not for his detriment, the landlord cannot take advantage of the provisions to the prejudice of the tenant, and that it is however open to the tenant to waive the protection afforded to him under that section. In Ranganatham v. Mariappa : AIR1942Mad334 , Patanjali Sastri, J. (as he then was), had held that Section 11 is mandatory and imposes an unqualified obligation upon the Court not to entertain a suit in ejectment in the absence of compliance with its provisions and that non-service of copies of the notices containing an offer to pay compensation would be fatal to the suit. In that case reference has been made to the decision of the Privy Council in Bhagchand Dagadusa v. Secretary of State for India I.L.R.(1927) 51 Bom. 725, where construing a similar language of prohibition used in Section 80, Civil Procedure Code, the Privy Council has observed that 'the section is express, explicit and mandatory and it admits of no implications or exceptions'. In Mohamed Hussain Rowther y. Tirupathi Chettiar (1966) 1 M.L.J. 206, Veeraswami, J. (as he then was) has held that the provisions of Section 11 are mandatory and the non-compliance with these provisions would entail the dismissal of the suit and that despite the mandatory character of the provisions, it is open to the defendant to waive his right under that section. In Venkataswami v. Mahalakshmi : (1949)1MLJ602 , Viswanatha Sastri, J., dealing with Section 49 of the Madras Court of Wards Act, 1902, which used similar language of prohibition as Section 11 of the Act held that though the section is mandatory in form and its non-compliance will result in the dismissal of the suit, the said provision can be waived by the Court of Wards for whose benefit it is introduced in the Act, that the waiver of the right may be either express or implied from conduct and that the waiver to be effectual, it must be by a person who has full knowledge of the facts.
9. Thus the legal position is clear that Secion 11 of the Act is mandatory and its non compliance will result in the dismissal of the suit but that the notice contemplated by Section 11 can be waived by the tenant little by express word's or by implied conduct. That the tenant for whose benefit Section 11 had been introduced in the Act can waive the benefit of the section is clear not only from the decisions referred to above but also from the decision of the Privy Council in Vellayan Chettiar v. The Province of Madras (1947) 2 M.L.J. 208 : 74 I.A. 223 : I.L.R. (1948) Mad. 214 : 60 L.W. 630 : A.I.R. 1947 P.C. 197, where while construing the scope of Section 80, Civil Procedure Code, which contains a similar prohibition the Privy Council held that a suit cannot be instituted without following the provisions of Section 80 but the notice under Section 80 could be waived if the authority concerned thinks fit to do so as it is for his protection that the notice is required and if in a particular case he does not require that protection and says so he can lawfully waive his right and that there is no inconsistency between the proposition, that the provisions of this section are mandatory and must be enforced by the Court and that they may be waived by the authority for whose benefit they are provided. The Court also observed that where the plaintiffs contend that the defendants have waived their right to the notice or alternatively, the estopped from saying that they did not, the burden lies on the plain tiffs to establish the facts upon which they rely for raising the implication or creating the estoppel.
10. From the above discussion it is seen that Section 11 of the Act is mandatory and a suit filed without the requisite notice under Section 11 is liable to be dismissed but that the notice can be waived by the defendant either expressly or impliedly by his conduct and that the burden of proving that the defendant has either expressly or by implication waived the said notice is on the plaintiff. The question is whether the defendant in this case by his conduct in filing an application under Section 9 can be taken to have waived the notice under Section 11 so as to enable the plaintiff to maintain the suit notwithstanding the non-compliance with the provisions of Section 11.
11. In Vedachala Naicker v. Duraiswami Mudaliar : AIR1951Mad593 , it was held that the filing of an application by the tenant under Section 9 of the Act amounts to a waiver by the tenant of the benefit conferred on him under Section 11. The said decision is based on the decision of the Privy Council in Vellayan Chettiar v. The Government of Madras (1947) 2 M.L.J. 208 : 74 I.A. 223 : 60 L.W. 630 : A.I.R. 1947 P.C. 197, which has already been referred to, laying down that the defect of non-compliance with the requirements of Section 80, Civil Procedure Code, were eschewed by reason of the waiver of the notice by the defendant for whose benefit the section was enacted. In Natesa Naicker v. Vedagiri : (1975)1MLJ301 , this Court held that the filing of an application under Section 9 by the tenant would itself amount to waiver of notice under Section 11. There fore the question is whether the filing of an application under Section 9 by the defendant in this case will amount to waiver of notice under Section 11. It is well-established that waiver is a question of fact and ought to be pleaded and proved in every case. No doubt the filing of an application under Section 9 without any demur as regards the non-compliance with Section 11 would amount to waiver of notice as the tenant's conduct in not raising the objection relating to notice. Taking advantage of the filing of the suit by the plain tiff the filing of an application under Section 9 by the defendant would amount to a conduct from which the waiver of notice can be inferred. But in this case the defendant has filed a written statement questioning the plaintiff's right to institute the suit and the jurisdiction of the Court to entertain the suit without a proper notice under Section 11. He has filed an application under Section 9 by way of abundant caution as he was not sure whether his objection regarding the maintainability of the suit based on the non-compliance with Section 11 will be accepted by the Court or not. In the written statement he has specifically stated that he is filing an application under Section 9 by way of abundant caution. He has not given up his benefit under Section 11 in the written statement either impliedly or expressly but specifically prays that the suit be dismissed for noncompliance with Section 11. Therefore the filing of an application, in this case under Section 9 of the Act which is preceded by the filing of a written statement questioning the maintainability of the suit without a proper notice cannot amount to the waiver of the notice under Section 11. We have to therefore hold that in this case there has been no waiver of the benefit of Section 11 by the defendant at any time. In this view the ultimate decision of the lower appellate Court that there is no waiver of the notice under Section 11 by the defendant is accepted as correct. The second appeal is therefore dismissed. There will, however, be no order as to costs.