PETITIONER: BHAIYA PUNJALAL BHAGWANDDIN Vs. RESPONDENT: DAVE BHAGWATPRASAD PRABHUPRASAD DATE OF JUDGMENT: 04/05/1962 BENCH: DAYAL, RAGHUBAR BENCH: DAYAL, RAGHUBAR KAPUR, J.L. GUPTA, K.C. DAS CITATION: 1963 AIR 120 1963 SCR (3) 312 CITATOR INFO : RF 1964 SC1341 (9) F 1967 SC1078 (3) HO 1974 SC 818 (15,26) F 1977 SC 740 (10) O 1979 SC1745 (11,15) ACT: Rent Control--Ejectment for non-payment of arrears of rent- Determination of tenancy, whether necessary before filing of suit--Notice to quit, validity of Tenancy, according to Indian Calendar--Whether converted to one under British Calendar--Belief against forfeiture--Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 (Bom. LVII of 1947) s. 12(3) (a). HEADNOTE: The appellant was a tenant of the respondents in respect of certain residential premises. The tenancy was by the Indian Calendar. The appellant did not pay arrears of rent for about 5 years and the landlords gave him notice to quit as he was in arrears of rent for more than six months and asked him to quit on the last day of the Indian month. On the appellant's failure to comply the landlords filed a suit for ejectment under s. 12 (3) (a) of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947. Within two months of the institution of the suit the appellant deposited the arrears of rent. The suit for ejectment was decreed. The appellant contended that in view of s. 27 of the Act and r. 4 the tenancy was deemed to be by the British Calendar and the notice to quit expiring with the end of the Indian month was invalid and that he should have been relieved against forfeiture. The landlords contended that no notice to quit was necessary for filing the suit, that the notice given was valid and that there could be no relief against forfeiture. Held, that the suit for ejectment was rightly decreed. it was incumbent upon the landlords to determine the contractual tenancy by a proper notice before they could file a suit for the ejectment of the tenant on the ground of non. payment of arrears under s. 12(3) (a) of the Act. The Act did not create a new right in the landlord to evict the tenant for nonpayment of rent; the right to evict was dependent upon a proper termination of the tenancy. The Act gave extra protection to the tenant which he could avail of after his tenancy was determined. There was nothing in s. 12 of the Act which overrode the provisions of the transfer of Property Act. The right to possession had to be distinguished from 313 the right to recover possession. The right to possession arose on the determination of the tenancy and the right to recover possession arose under the Act after the right to possession had arisen. Dr. K.A. Dhairyawan, v. J.R. Thakur, [1959] S.C.R. 799, Baghubir Narayan Lotlikar v. Fernandiz, (1952) Bom. L.R. 505, Karsandas v. Karsanji, A.I.R. (1953) Sau. 113, Meghji Lakhamahi v. Furniture Workshop, (1954) A.C. 80 and Ebner v. Lascelles, (1928) 2 K.B. 486, referred to. Bai Brij Bai Krishna v. S.K. Shaw and Bros. [1951] S.C.R. 145 and Shri Hem Chand v. Shrimati Sham Devi, I.L.R. 1955) Punj. 36, distinguished. The notice to quit was a valid notice. The original tenancy was according to the Indian Calendar and there was nothing in s. 27 of the Act or in r.4 which converted it into a tenancy according to the British Calendar. Section 27 and r. 4 merely provided for the recoverability of rent according to the British Calendar. In view of the provisions of s. 12 there could be no relief against forfeiture in the present case. Section 12(3)(a) empowered the court to pass a decree for eviction in case of rent payable month by month if the arrears of rent had been for a period of six months and the tenant had neglected to make the payment within a month of the service of the notice of demand. The payment of arrears after institution of the suit did not affect his liability to eviction and the court's power to pass the decree. The Court was bound to pass the decree when the requirments of the section were satisfied.where the' legislature intended to give relief against forfeiture it made a specific provision. JUDGMENT:
CIVIL APPELLATE JURISDICTION:Civil Appeal No. 209 of 1962.
Appeal by special leave from the judgment and order dated
October 10, 1961, of the Gujarat High Court in Civil
Revision Application No. 378 of 1960.
R. Ganapathy Iyer, B.R.G.K. Achar and K.L, Hathi, for the
appellant.
M. S. K. Sastri and M. S. Narasimhan, for respondents.
314
1962. May 4. The judgment of the Court was delivered by
RAGHUBAR DAYAL, J.-This appeal, by special, leave, is
against the judgment and decree of the High Court of
Gujarat.
The appellant was a tenant of certain residential premises
situate at Anand, and belonging to the respondents-
landlords. Under a contract between the parties, he held
them at Rs. 75/- per mensem according to Indian Calendar.
In 1951 the appellant applied for fixation of standard rent.
On March 31, 1954, the standard rent was fixed at Us. 25/.
per mensem. The appellant did not pay the arrears of rent
from July 27, 1949, to July 5, 1954. On October 16, 1954,
the landlords gave him notice to quit the premises stating
therein ‘that rent for over six months was in arrears and
that he was to quit on the last day of the month of tenancy
which was Kartak Vad 30 of Samvat Year 2011. The appellant
neither paid the arrears of rent nor vacated the premises.
(in December 16, 1954, the respondents filed the suit for
ejectment basing their claim for ejectment on the provisions
of s. 12(3) (a) of the Bombay Rents, Hotel and Lodging House rates
Control Act, 1947 (Bom. LVII of 1947),
hereinafter called the Act.
Within two months of the institution of the suit, the
appellant deposited an account of Rs. 1,075/- in Court,
towards arrears of rent and, with the permission of the
Court, the respondents withdrew a sum of Rs. 900/- which was
the amount due for arrears up to that time. The Trial
Court decreed the suit for ejectment together with arrears
of rent for three years and costs. An appeal against the
decree for ejectment was dismissed by the appellate Court.
The revision to the High Court was also uusuccessful, and,
it is
315
against the order in revision that this appeal has been
preferred.
Four points were urged before the High Court: (1) That the
month of tenancy was not by the Indian Calendar, but was by
the British Calendar and that the Courts below had ignored
evidence in that regard. (2) Assuming that the month of
tenancy was by the Indian Calendar according to the lease,
it would be deemed to be by the British Calendar in view of
the provision of s. 27 of the Act. (3) As the arrears of
rent had been paid within two months of the institution of
the suit, the appellant be deemed to be ready and willing to
pay the rent and that therefore the landlord was not
entitled to recover possession of the premises. (4) It is
discretionary with the Court to pass a decree for ejectment
in a. case under s. 12(3) (a) of the Act, as the expression,
used in that subclause is ‘the Court may pass a decree for
eviction in any such suit for recovery of possession.’
The High Court held that the findings of the Courts below
that the month of tenancy was by the Indian Calendar was
based on a consideration of the evidence on the record and
therefore was binding. It also held that it could not be
deemed to be by the British Calendar in view of s. 27 of the
Act which provided that the rent would be recovered
according to the British Calendar, notwithstanding anything
contained in any contract and did not provide for the
tenancy to be by the month according to the British Calendar
even if the tenancy under the Contract was by a different
Calendar. The High Court also held that the tenant’s
depositing arrears of rent within two months of the
institution of the suit would not justify holding that the
tenant was ready and willing to pay the amount of standard
rent and that therefore the .landlord was not entitled to
recover possession
316
of the premises in view of sub-s.(1) of s. 12 of the Act.
Lastly, the High Court held that the Court is bound to pass
a decree for ejectment under s. 12 (3) (a) if it be proved
that the rent was payable by the month, that’ it had been in
arrears for a period of six months and that the tenant
failed to make payment of the arrears until the expiration
of the period of one month after the service of notice
referred to in sub.s. (2) of that section., As a result, the
revision was dismissed.
Two points have been urged for the appellant in this Court.
One is that the month of the tenancy was to be by the
British Calender in view of s. 2 7 of the Act and r. 4
framed thereunder, and that there could be no forfeiture of
the tenancy when the arrears of rent had been paid within
two months of the institution of the suit.
The significance of the first question is that if the
appellant’s tenancy was to be by the month of the British
Calendar, notice to quit was a bad notice as it did not
comply with the requirements of s.106 of the Transfer of
Property Act and that therefore there had been no
determination of the tenancy which is a condition precedent
for the landlord being entitled to possession and, coin.
sequently, for instituting a suit for ejectment on any
ground whatsoever, including the ground of rent being in
arrears.
The first point to determine, therefore, is whether it is a
condition precedent for the institution of a suit by a
landlord for the recovery of possession from a tenant who
has been in arrears of rent that there had been first a
determination of the contractual tenancy. If it is not a
condition precedent; it will not be necessary to determine
whether the month of the tanancy continued to be according
to the Indian Calendar according to the contract, or had
been according to the British
317
Calendar in view of a. 27 of the Act, when a tenancy is
created under a contract between the landlord and the
tenant, that contract must hold good and continue to be in
force till, according to law or according to the terms of
contract, it comes to an end. Section III of the Transfer
of Property Act states the various circumstances in which a
lease of immovable property determines. Clause (b) provides
for the determination of the lease on the expiration of a
notice to determine the lease, or to quit, or of intention
to quit, the property leased, duly given by one party to the
other. There is nothing in the act which would give a right
to the landlord to determine the tenancy and thereby to got
the right to( evict the tenant and recover possession. This
Act was enacted for the purpose of controlling the rents and
repair of certain premises and of evictions due to the
tendency of landlords to take advantage of the extreme
scarcity of premises compared to the demand for them. The
Act intended therefore to restrict the rights which the
landlords possessed either for charging excessive rents or
for. evicting tenants. A tenant stood in no need of
protection against eviction by the landlord so long as he
had the necessary protection under the terms of the contract
between him and the landlord. He could not be evicted till
his tenancy was determined according to law and therefore
there was no necessity for providing any further protection
in the Act against his eviction so long as his tenancy
continued to exist under the contract.
Sub-section(1) of s. 12 of the Act provides that a landlord
shall not be entitled to the recovery of possession of any
premises so long as the tenant pays, or is ready and willing
to pay, the amount of the standard rent and permitted
increases, if any, and observes and performs the other
conditions of the tenancy, in so far as they are consistent
with the
318
provisions of the Act. It creates a restriction on the
landlords right to the recovery of possession. When the
landlord will have such a right is not provided by it.
Ordinarily, the landlord will have a right to recover
possession from the tenant when the tenancy had determined.
The provisions of this section therefore will operate
against the landlord after the determination of the tenancy
by any of the modes referred to in a. III of the Transfer of
property Act. What this section of the Act provides is that
even after the determination of the tenancy, a landlord will
not be entitled to recover possession, though a right to
recover possession gets vested in him, so long as the tenant
complies with what he is required to do by this section. It
is this extra protection given by this section which will be
useful to the tenant after his tenancy has determined. The
section does. not create a new right in the landlord to
evict the tenant when the tenant does not pay his rent. It
does not say so, and therefore, it is clear that a landlords
right to evict the tenant for default in payment. of rent
will arise only after the tenancy is determined, and the
continued possession of the tenant is not account of the
contractual terms but on account of the statutory right
conferred on him to continue in possession so long as he
complies with what sub-s.1 requires of him. The landlord is
restricted- from evicting the tenant till the tenant does
not do what he is required to do for peaceful possession
under sub s.(1) of s. 12. We are therefore of opinion that
where a tenant is in possession under a lease from the
landlord, he is not to be evicted for a cause which would
give rise to a suit for recovery of possession under s.12 if
his ‘tenancy has not been determined already. It follows
that whenever a tenant acts in a way which would remove the
bar on the landlord’s right to evict him it is necessary for
the landlord to serve him with. a notice
319
determining his tenancy and also serve him with a notice
under sub-s.(2) of s. 12 of the Act.
In this connection reference may be made to what wag stated
in Dr. K. A. Dhairyawan v. J. R. Thakur .(1). In that case,
the landlord granted a lease of a parcel of land to the
lessees for a certain period. The lessee was to construct a
building on that land. On the termination of the lease, the
lessees were to surrender and yield up the demised promises
including the building to the lessors. After the expiry of
the period of the lease, the lessor sued for a declaration
that they were entitled to the building and were entitled to
claim possession of the same. The lessees pleaded that they
were also lessees of the building and were protected from
eviction therefrom by the provisions of the Bombay Rents,
Hotel and lodging House Control Act, 1947, and that the
covenant for delivering possession of that building could
not be enforced as the lease in respect of the land could
not be terminated on account of the protection given by the
Act. It was held that under the lease there was a demise
only of the land and not of the building, and, consequently,
the provisions of the Act dit not apply to the contract- of
delivery of possession of the building. It was contended
that even in such a case, possession of the building could
not be given until the lease bad been determined, which in
law, could not be determined so long as the respondents
could not be evicted from the demised land of which they
were tenants within the meaning of the Act. This contention
was repelled. It was said at p. 808:
“This contention is without force as the
provisions of the Act do not provide for the
continuation of a lease beyond the specified
period stated therein. All that the Act does
is to give to the person who continues to
(1) [1959] S.C.R. 799.
320
remain in possession of the land, although the
period of the lease had come to an end, the
status of a statutory tenant. That is to say,
although the lease had come to an end but the
lessee continued to remain in possession
without the consent of the lessor, he would
nonetheless be a tenant of the land and could
not be evicted save as provided by the Act.”
This means that the provisions of the Act did not affect the
terms of the lease according to which the lease came to an
end after the expiry of the period for which it was given.
The lessee’s possession after the expiry of the lease was by
virtue of the provisions of the Act and not by virtue of the
extension of the period of the lease. It is a necessary
consequence of this view that the restriction on the
landlord’s right to recover possession under s. 12 of the
Act operates after he has determined the tenancy and that
till then the rights between the parties with respect to
eviction would be governed by the Ordinary law.
It was said in Ragbubir Narayan Lotlikar v. Fernandez (1).
(Bom. Rents, Hotel and Lodging House Rates
Control Act (Bom Act LVII of 1947): ,,’In our
opinion, s.28 applies only to those suits
between a landlord and a tenant where a
landlord has become entitled to possession or
recovery of the premises demised. Under the
Transfer of Property Act a landlord becomes
entitled to possession when there is a
determination of tenancy. A tenancy can be
determined in any of the modes laid down in s.
111; and once the tenancy is determined, under
s.108 (q) the lessee is bound to put the
lessor into possession of the property. It
(1) (1952) 54 Bom. L.R. 505, 511.
321
is, therefore, only on the determination of
the lease or the tenancy that the landlord be-
comes entitled to the possession of the pro-
perty, and when he has so becomes entitled to
possession, if he files a suit for a decree
for possession, then s. 28 applies and such a
suit can only be filed in the Small Causes
Court.”
Again it was said at the same page:
“Section 12 postulates the fact that landlord
is entitled to recovery of possession and he
is only entitled to possession under the
provisions of the Transfer of Property Act.
It is only when he so becomes entitled that
the Legislature steps in and prevents the
enforcement of his right by the protection
which it gives to the tenant. No question of
the application of s. 12 can arise if a
landlord is not entitled to possession at
all.”
A similar view was expressed in Karsandas v. Karsanji (1) It
was said:
“…that a tenancy must be duly determined
either by a notice to quit or by efflux of
time or under one or the other of the clauses
of s. III, T. P, Act before a landlord can one
to, evict his tenant on any of the grounds
contained in the clauses of s-13 (1) of the
Bombay Rent Act as applied to Saurashtra.
Therefore a notice determining the tenancy and
calling upon the tenant to quit was in this
case a necessary prerequisite to the
institution of the suit.”
The cases reported as Rai Brij Raj Krishna v. S. K. Shaw and
Brothers (2) and Shri Hem Chand v. Shrimati Sham Devi (3)
are distinguishable. In, the former case, s.11 of the Bihar
Buildings
(1) A.I.R. (1953) Sau. 113, 118. (2) [1951] S.C.R. 145,150.
(3) I.L.R. (1955) Punj. 36.
322
(Lease, Rent and Eviction) Control Act, 1947, (III of 1947),
came for interpretation by this Court and, in that
connection it was said
“Section II beings with the words ‘Not
withstanding anything contained in any agree-
ment or law to the contrary’, and hence any
attempt to import the provisions relating to
the law of transfer of property for the inter-
pretation of the section would seem to be out
of place. Section 11 is a self-contained sec-
tion, and it is wholly unnecessary to g
o
outside the Act for determining whether
a
tenant is liable to be evicted or not, and
under what conditions he can be evicted. It
clearly provides that a tenant is not liable
to be evicted except on certain conditions,
and one of the conditions laid down for the
eviction of a month to month tenant is non-
payment of rent.”
In the present case, s. 12 of the Act is differently worded
and cannot therefore be said to be a complete Code in
itself. There is nothing in it which overrides the
provisions of the Transfer of Property Act.
Shri Hem Chand’s Case (1) dealt with the provisions of
s.13(i) of the Delhi and Ajmer Merwara Rent Control Act
XXXVIII of 1952. This section provided that no decree or
order for the recovery of possession of any promises shall
be passed by any court in favour of the landlord against a
tenant, notwithstanding anything to the contrary contained
in any other law or any con- tract. It was held that the
Rent Control Act provided the procedure for obtaining the
relief of ejectment and that being so the provisions of s.
106 of the Transfer of property Act had no relevance, in
considering an application for ejectment
(1) I.L.R. (1955) Punj 36.
323
made under that Act. There is nothing in the Act
corresponding to the provisions of s. 13(1) of the Delhi
Ajmer Merwara Act. It is unnecessary for us to consider
whether Shri Hem Chand’s case was rightly decided or not.
In Meghji Lakhamahi and Brothers V. Furniture Workshop (2)
the Privy Council dealt with an application for possession
under s. 16 of the Increase of rent (Restriction) Ordinance,
No. 23 of 1949 (Kenya) whose relevant portion is :
“(1) No order for the recovery of possession
of any premises to which this Ordinance
applies, or for the ejectment of a tenant
therefrom, shall be made unless … (k) the
landlord requires possession of the premises
to enables the reconstruction or rebuilding
thereof to be carried out…”
It was said :
“In the present case the only question is
whether section 16(i) (k) is so framed as to
envisage or make provision for such an order.
An application for possession under section 16
presupposes that the contractual tenancy of
the demised premises has been determined. It
is not possible to determine it as to part and
keep it in being as to the remainder. In the
present case the tenancy of the entire demised
premises had been determined.”
The right to possession is to be. distinguished from the
right to recover possession. The right to possession arises
when the tenancy is determined. The right to recover
possession follows the right to possession, and arises when
the person in possession does not make over
(1) I.L.R. (1955) Punj. (2) (1954) A.C. 80,90.
324
possession as he is bound to do under law, and there arises
a necessity to recover possession through Court. The cause
of action for going to Court to recover possession arises on
the refusal of the person in possession, with no right to
possess, to deliver possession. In this context, it is
clear that the provisions of s. 12 deal with the stage of
the recovery of possession and not, with the stages prior to
it and that they come into play only when the tenancy is
determined and a right to possession has come in existence.
Of course, if there is not contractual tenancy and a person
is deemed to be a tenant only on account of a statute giving
him right to remain in possession, the right to possession
arises on the person in possession acting in a manner which,
according to the statute, gives the landlord right to
recover possession, and no question for the determination of
the tenancy arises, as really speaking, there was no tenancy
in the ordinary sense of that expression. It is for the
sake of convenience that the right to possession, by virtue
of the provisions of a statute, has been referred to as
statutory tenancy.
In Ebner v. Lascelles (1) It was said, dealing with the
provisions of Increase of Rent and Mortgage Interest
(Restrictions) Act, 1920 (10 and 11 Geo. 5, c. 17) :
“It has been truly said that the main rights
conceded to a tenant under these Acts are,
first a right to hold over or ‘status of
irremovability,’ and, next, a right not to
have his rent unduly raised. The right to
hold over is a right that comes into existence
after the expiration of the contractual
tenancy. During the contractual tenancy the
tenant, being in possession under the
protection of his contract, has no need of the
protection of the Act to enable him to retain
possession, but
(1) (1928) 2 K.B. 486,497.
325
during that tenancy the Act protects him in
regard to rent by providing that, notwith-
standing any other agreements which he may
make with his landlord as to rent, he is not
to be charged a higher rent than the law
allows, and if he is charged a higher rent
than that he can have it reduced. The right
to hold over after the termination of the con-
tractual tenancy. and the right to protection
during the contractual tenancy are two right
s
which must be kept distinct from each other.”
It may be mentioned that s. 5 of the aforesaid Act of 1920
provided that no order or judgment for the recovery of
possession of any dwelling house to which the Act applied or
for the ejectment of a tenant therefrom would be made or
given unless the case fell within one of the clauses
mentioned in sub. s.(1).
We are therefore of opinion that so long as the contractual
tenancy continues, a landlord cannot sue for the recovery of
possession even if s.12 of the Act does not bar the
institution of such a suit, and that in order to take
advantage of this provision of the Act he must first
determine the tenancy in accordance with the provisions of
the Transfer of Property Act.
It is now necessary to determine whether a notice served on
the appellant to quit the tenancy on October 16, 1954, the
last date of the month according to the Hindu Calendar, as
October 16 happened to be Kartik Vad 30 of S. Y. 2011, the
tenancy having commenced from Kartik Sud 1 of S.Y. 1963. It
is not disputed that originally the tenancy was according to
the Hindu Calendar. The contention for the appellant is
that this month to month tenancy, according to the Hindu-
Calendar, was
326
converted to a similar tenancy according to the British
Calendar in view of the provisions of s.27 of the Act and r.
4 of the Rules framed under the Act.
Section 27 of the Act reads:
“(1) Notwithstanding anything contained in any
law for the time being in force or any
contract, custom or local usage to the
contrary, rent payable by the month or year or
portion of a year shall be recovered according
to the British Calendar.
(2) The State Government may prescribe the
manner in which rent recoverable according to
any other calendar before the coming into
operation of this Act shall be calculated and
charged in terms of the British Calendar.”
Rule 4 of the Bombay Rents, Hotel and Lodging House hates
Control Rules, 1948, hereinafter called the Rules, reads:
“Calculation of rent according to British
Calender.-If, before the Act comes into force,
the rent in respect of any premises was
chargeable according to a calendar other than
the British Calendar, the landlord shall
recover from the tenant rent for the broken
period of the month, year or portion of the
year immediately preceding the date on which
the Act comes into force, proportionate amount
according to the aforesaid Calendar month,
year or portion of the year at which the rent
was then chargeable. After such date the
landlord shall recover rent according to the
British Calendar. The rent chargeable per
month according to the British
327
Calendar shall not exceed the rent which was
chargeable per month according to the other
calendar followed immediately before such
date.”
There is nothing irk the aforesaid rule or-the section about
the conversion of the month of the tenancy from the month
according to the Hindu calendar to the month according to
the British Calendar. They only provide for the
recoverability of the rent according to the British
Calendar. Since the enforcement of the Act on February 13,
1948, the monthly rent would be for the month according to
the British Calendar. The monthly rent could be recovered
after the expiry of a month from that date or the rent for
the period from the 13th February to the end of the month
could be recovered at the monthly rate and thereafter after
the expiry of each Calendar month. There is nothing in the
section or the rule in regard to the date from which the
month for recovery of rent should commence. This provision
was made probably, as a corollary, to the statute providing
for standard rents. Standard rents necessitate standard
months. There are a number of calendars in use in this
country. The Hindus themselves use several calendars. The
Muslims use a different one. Some calendars are used for
particular purposes. It appears to be for the sake of
uniformity and standardisation that a common calendar was to
govern the period of the month of the tenancy and the date
for the recovery of the rent. Rule 4 provided a procedure
for adjustment of the recovery of the rent according to a
calendar other than the British Calendar, and further
provided that the rent chargeable per month, according to
the British Calender, would not exceed the rent which was
chargeable per month according to the other calendar
followed immediately before that date. In the absence of
any specific provision in the Act with respect to any
alteration to be made in the period of the month of the
328
tenancy, it cannot be held merely on the basis of an
alteration in the period for the recovery of rent that the
monthly period of tenancy had also been changed. The
tenancy can be from month to month and the recoverability of
the rent may not be from month to month and may, under the
contract, be based on any period say, a quarter or half year
or a year. There is nothing in law to make the month for
the period of recovering rent synchronize with the period of
the month of the tenancy. The tenancy must start on a
particular date, and, consequently, its month would be the
month from that date, according to the calendar followed.
The month of tenancy according to that calender are settled
by contract from the commencement of, the tenancy. The
tenancy under a lease for a certain period starts from a
certain date, be it according to the British Calendar or any
other Calendar. The period of, lease. and consequently the
tenancy, comes to an end at the expiry of that period
according to the calendar followed by the parties in fixing
the commencement of the tenancy. A lease, even according to
the British Calendar, can start from any intermediate date
of the calendar month. There is nothing in s. 27 to
indicate that the month of the tenancy to such a lease will
start from the first of a regular month. Section 27 simply
states that the rent would be recovered according to the
British Calendar without fixing the first date of the month
as the date from which the month, for the purposes of the
recovery of the rent, would be counted. It follows that the
month of the tenancy which commences on the 14th of a month,
would be from the 14th to the 13th of the next month,
according to the British Calendar. The rent would be
recoverable with respect .to this period of a month. No
interference with any such term of the contract has been
made by any provision of the Act and therefore we hold that
the provisions of s. 27 of the Act and r. 4 of
329
the Rules, do not in any way convert the month of the
tenancy according to the Indian Calendar to the month of the
British Calendar.
The High court said in his judgment that Mr. Parghi, who was
appearing for the appellant, was unable to cite any decision
in support of the contention raised by him. Our attention,
however, has been drawn to two cases decided by the Bombay
High Court. They are Civil Revision Applications Nos. 247
of 1956 and 1583 of 1960 decided by Dixit and Tendolkar, JJ
and Patwardban J., on February 22, 1957, and August 16,
1961, respectively. The latter decision had to follow the
earlier one. In the earlier case, the notice to quit
required the tenant to give possession on May 1, 1953. The
tenancy had commenced according to the Hindu Calendar. The
notice was given according to the British Calendar. The
High Court held the notice to be valid, agreeing with the
contention that ..the effect of the provisions of a. 27 of
the Act was lo make the tenancy which was originally
according to the Hindu Calendar, a tenancy according to the
British Calendar. The ratio of the decision, in the words
of the learned Judges, is :
“Now rent is payable for occupation by the
defendant and therefore, the tenancy must be
deemed to be one according to the British
Calendar from the first of the month to the
end of the month………………… Here is
a local law which by section 27 makes the
tenancy as one according to the British
Calendar”.
We are of opinion that- this view is wrong. We, therefore,
hold that the notice to quit issued to the appellant was
therefore a valid notice as held by the Court below and
determined the tenancy of the appellant.
330
The second contention that, the appellant’s having paid the
arrears of rent within 2 months of the institution of the
suit, there would be no forfeiture of the tenancy has no
force in view of the provisions of s. 12 of the Act. Sub-
section (2) permits the landlord to institute a, suit for
the eviction of a tenant on the ground of non-payment of
rent after the expiration of one month from the service of
the notice demanding the arrears of rent, and cl. (a) of
sub-s.(3) empowers the Court to Pass a decree in case the
rent had been payable by the month, there was no dispute
about the amount of standard rent, the arrears of rent, had
been for a period of six months and the tenant had neglected
to make the payment within a month of the service of the
notice of demand. The tenant’s paying the arrears of rent
after the institution of the suit therefore does not affect
his liability to eviction and the Court’s power to pass a
decree for eviction. It is true that the expression used in
el. (a) of sub-s.(3) is ‘the Court may pass a decree for
eviction in any such suit for recovery of possession’, but
this does not mean as contended for the appellant, that the
Court has discretion to pass or not to pass a decree for
eviction in case the other conditions mentioned in that
clause are satisfied. The landlord became entitled to
recover possession when the tenant failed to pay rent and
this right in him is not taken away by any other provision
in the Act. The Court is therefore bound in law to pass the
decree when the requirements of sub-s-(2) of s.12 are
satisfied. This is also clear from a comparison of the
language used in cl. (a) with the language used in cl. (b)
of sub-s. (3) which deals with a suit for eviction which
does not come within cl.(a) and provides that no decree for
eviction shall be passed in such a suit if on the first day
of hearing of the suit or on or before such other date as
the Court may fix, the tenant pays or tenders in Court the
331
standard rent then due and thereafter continues to pay or
tender in Court regularly such rent till the suit is finally
decided and also pays costs of the suit as directed by the
Court. It is clear that where the legislature intended to
give some benefit to the tenant on account of the payment of
the arrears during the pendency of the suit, it made a
specific provision. In the circumstances, we are of opinion
that the Court has no discretion and has to pass a decree
for eviction if the other conditions of sub.s. (2) of s. 12
of the Act are satisfied.
The result therefore is that this appeal fails, and is
accordingly dismissed with costs.
Appeal dismissed.