{"id":48202,"date":"1962-05-04T00:00:00","date_gmt":"1962-05-03T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/bhaiya-punjalal-bhagwanddin-vs-dave-bhagwatprasad-prabhuprasad-on-4-may-1962"},"modified":"2016-05-12T09:00:33","modified_gmt":"2016-05-12T03:30:33","slug":"bhaiya-punjalal-bhagwanddin-vs-dave-bhagwatprasad-prabhuprasad-on-4-may-1962","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/bhaiya-punjalal-bhagwanddin-vs-dave-bhagwatprasad-prabhuprasad-on-4-may-1962","title":{"rendered":"Bhaiya Punjalal Bhagwanddin vs Dave Bhagwatprasad Prabhuprasad on 4 May, 1962"},"content":{"rendered":"
Supreme Court of India<\/div>\n
Bhaiya Punjalal Bhagwanddin vs Dave Bhagwatprasad Prabhuprasad on 4 May, 1962<\/div>\n
Equivalent citations: 1963 AIR 120, \t\t 1963 SCR (3) 312<\/div>\n
Author: R Dayal<\/div>\n
Bench: Dayal, Raghubar<\/div>\n
           PETITIONER:\nBHAIYA PUNJALAL BHAGWANDDIN\n\n\tVs.\n\nRESPONDENT:\nDAVE BHAGWATPRASAD PRABHUPRASAD\n\nDATE OF JUDGMENT:\n04\/05\/1962\n\nBENCH:\nDAYAL, RAGHUBAR\nBENCH:\nDAYAL, RAGHUBAR\nKAPUR, J.L.\nGUPTA, K.C. DAS\n\nCITATION:\n 1963 AIR  120\t\t  1963 SCR  (3) 312\n CITATOR INFO :\n RF\t    1964 SC1341\t (9)\n F\t    1967 SC1078\t (3)\n HO\t    1974 SC 818\t (15,26)\n F\t    1977 SC 740\t (10)\n O\t    1979 SC1745\t (11,15)\n\n\nACT:\nRent Control--Ejectment for non-payment of arrears of  rent-\nDetermination of tenancy, whether necessary before filing of\nsuit--Notice  to  quit, validity of  Tenancy,  according  to\nIndian\tCalendar--Whether  converted to\t one  under  British\nCalendar--Belief against forfeiture--Bombay Rents, Hotel and\nLodging House Rates Control Act, 1947 (Bom. LVII of 1947) s.\n12(3) (a).\n\n\n\nHEADNOTE:\nThe appellant was a tenant of the respondents in respect  of\ncertain residential premises.  The tenancy was by the Indian\nCalendar.   The\t appellant did not pay arrears of  rent\t for\nabout  5 years and the landlords gave him notice to quit  as\nhe was in arrears of rent for more than six months and asked\nhim  to\t quit on the last day of the Indian month.   On\t the\nappellant's failure to comply the landlords filed a suit for\nejectment under s. 12 (3) (a) of the Bombay Rents, Hotel and\nLodging House Rates Control Act, 1947.\tWithin two months of\nthe  institution  of the suit the  appellant  deposited\t the\narrears\t of rent.  The suit for ejectment was decreed.\t The\nappellant contended that in view of s. 27 of the Act and  r.\n4  the tenancy was deemed to be by the British Calendar\t and\nthe notice to quit expiring with the end of the Indian month\nwas  invalid and that he should have been  relieved  against\nforfeiture.  The landlords contended that no notice to\tquit\nwas necessary for filing the suit, that the notice given was\nvalid and that there could be no relief against forfeiture.\nHeld, that the suit for ejectment was rightly decreed.\nit  was\t incumbent  upon  the  landlords  to  determine\t the\ncontractual  tenancy  by a proper notice before\t they  could\nfile a suit for the ejectment of the tenant on the ground of\nnon. payment of arrears under s. 12(3) (a) of the Act.\t The\nAct did not create a new right in the landlord to evict\t the\ntenant\tfor  nonpayment\t of rent; the  right  to  evict\t was\ndependent upon a proper termination of the tenancy.  The Act\ngave extra protection to the tenant which he could avail  of\nafter  his tenancy was determined.  There was nothing in  s.\n12 of the Act which overrode the provisions of the  transfer\nof  Property  Act.   The  right\t to  possession\t had  to  be\ndistinguished from\n313\nthe  right to recover possession.  The right  to  possession\narose  on the determination of the tenancy and the right  to\nrecover\t possession arose under the Act after the  right  to\npossession had arisen.\nDr.   K.A.  Dhairyawan, v. J.R. Thakur,<\/a> [1959]\tS.C.R.\t799,\nBaghubir  Narayan  Lotlikar v. Fernandiz, (1952)  Bom.\tL.R.\n505,  Karsandas v. Karsanji, A.I.R. (1953) Sau. 113,  Meghji\nLakhamahi v. Furniture Workshop, (1954) A.C. 80 and Ebner v.\nLascelles, (1928) 2 K.B. 486, referred to.\nBai  Brij Bai Krishna v. S.K. Shaw and Bros.<\/a>  [1951]  S.C.R.\n145  and Shri Hem Chand v. Shrimati Sham Devi, I.L.R.  1955)\nPunj. 36, distinguished.\nThe notice to quit was a valid notice.\tThe original tenancy\nwas  according to the Indian Calendar and there was  nothing\nin  s.\t27 of the Act or in r.4 which converted\t it  into  a\ntenancy\t according to the British Calendar.  Section 27\t and\nr.  4  merely  provided\t for  the  recoverability  of\trent\naccording to the British Calendar.\nIn view of the provisions of s. 12 there could be no  relief\nagainst\t forfeiture in the present case.   Section  12(3)(a)\nempowered the court to pass a decree for eviction in case of\nrent payable month by month if the arrears of rent had\tbeen\nfor  a period of six months and the tenant had neglected  to\nmake the payment within a month of the service of the notice\nof demand.  The payment of arrears after institution of\t the\nsuit  did  not\taffect his liability  to  eviction  and\t the\ncourt's\t power to pass the decree.  The Court was  bound  to\npass  the decree when the requirments of the  section  were\nsatisfied.where\t the'  legislature intended to\tgive  relief\nagainst forfeiture it made a specific provision.\n\n\n\nJUDGMENT:\n<\/pre>\n
CIVIL APPELLATE JURISDICTION:Civil Appeal No. 209 of 1962.
\nAppeal\tby special leave from the judgment and\torder  dated
\nOctober\t 10,  1961,  of\t the Gujarat  High  Court  in  Civil
\nRevision Application No. 378 of 1960.\n<\/p>\n
R.  Ganapathy Iyer, B.R.G.K. Achar and K.L, Hathi,  for\t the
\nappellant.\n<\/p>\n
M. S. K. Sastri and M. S. Narasimhan, for respondents.\n<\/p>\n
314<\/span><\/p>\n
1962.  May 4. The judgment of the Court was delivered by
\nRAGHUBAR  DAYAL,  J.-This  appeal,  by\tspecial,  leave,  is
\nagainst\t the  judgment\tand  decree of\tthe  High  Court  of
\nGujarat.\n<\/p>\n
The  appellant was a tenant of certain residential  premises
\n situate  at  Anand,  and  belonging  to  the\trespondents-
\nlandlords.   Under a contract between the parties,  he\theld
\nthem  at Rs. 75\/- per mensem according to  Indian  Calendar.
\nIn 1951 the appellant applied for fixation of standard rent.
\nOn  March 31, 1954, the standard rent was fixed at Us.\t25\/.
\nper  mensem.  The appellant did not pay the arrears of\trent
\nfrom  July 27, 1949, to July 5, 1954.  On October 16,  1954,
\nthe  landlords gave him notice to quit the premises  stating
\ntherein\t ‘that rent for over six months was in\tarrears\t and
\nthat he was to quit on the last day of the month of  tenancy
\nwhich was Kartak Vad 30 of Samvat Year 2011.  The  appellant
\nneither paid the arrears of rent nor vacated the premises.
\n(in  December 16, 1954, the respondents filed the suit\tfor
\nejectment basing their claim for ejectment on the provisions
\nof  s.\t12(3)  (a) of the Bombay Rents,\t Hotel\tand  Lodging House  rates
\n Control  Act,\t1947  (Bom.   LVII  of\t1947),
\nhereinafter called the Act.\n<\/p>\n
Within\ttwo  months  of the institution\t of  the  suit,\t the
\nappellant  deposited  an account of Rs.\t 1,075\/-  in  Court,
\ntowards\t arrears  of rent and, with the\t permission  of\t the
\nCourt, the respondents withdrew a sum of Rs. 900\/- which was
\nthe  amount  due for arrears up to that time.\t The  Trial
\nCourt  decreed the suit for ejectment together with  arrears
\nof  rent for three years and costs.  An appeal\tagainst\t the
\ndecree\tfor ejectment was dismissed by the appellate  Court.
\nThe  revision to the High Court was also uusuccessful,\tand,
\nit is
\n315<\/span>
\nagainst\t the  order in revision that this  appeal  has\tbeen
\npreferred.\n<\/p>\n
Four  points were urged before the High Court: (1) That\t the
\nmonth of tenancy was not by the Indian Calendar, but was  by
\nthe  British Calendar and that the Courts below had  ignored
\nevidence  in  that regard. (2) Assuming that  the  month  of
\ntenancy\t was by the Indian Calendar according to the  lease,
\nit would be deemed to be by the British Calendar in view  of
\nthe  provision\tof s. 27 of the Act. (3) As the\t arrears  of
\nrent  had been paid within two months of the institution  of
\nthe suit, the appellant be deemed to be ready and willing to
\npay  the  rent\tand  that therefore  the  landlord  was\t not
\nentitled  to recover possession of the premises. (4)  It  is
\ndiscretionary with the Court to pass a decree for  ejectment
\nin a. case under s. 12(3) (a) of the Act, as the expression,
\nused  in that subclause is ‘the Court may pass a decree\t for
\neviction in any such suit for recovery of possession.’
\nThe  High Court held that the findings of the  Courts  below
\nthat  the  month of tenancy was by the Indian  Calendar\t was
\nbased  on a consideration of the evidence on the record\t and
\ntherefore  was binding.\t It also held that it could  not  be
\ndeemed to be by the British Calendar in view of s. 27 of the
\nAct  which  provided  that  the\t rent  would  be   recovered
\naccording to the British Calendar, notwithstanding  anything
\ncontained  in  any  contract and did  not  provide  for\t the
\ntenancy to be by the month according to the British Calendar
\neven  if the tenancy under the Contract was by\ta  different
\nCalendar.   The\t High  Court also  held\t that  the  tenant’s
\ndepositing  arrears  of\t rent  within  two  months  of\t the
\ninstitution  of the suit would not justify holding that\t the
\ntenant\twas ready and willing to pay the amount of  standard
\nrent  and that therefore the .landlord was not\tentitled  to
\nrecover possession
\n316<\/span>
\nof  the premises in view of sub-s.(1) of s. 12 of  the\tAct.
\nLastly, the High Court held that the Court is bound to\tpass
\na  decree for ejectment under s. 12 (3) (a) if it be  proved
\nthat the rent was payable by the month, that’ it had been in
\narrears\t for  a\t period of six months and  that\t the  tenant
\nfailed\tto make payment of the arrears until the  expiration
\nof  the\t period\t of one month after the\t service  of  notice
\nreferred to in sub.s. (2) of that section., As a result, the
\nrevision was dismissed.\n<\/p>\n
Two points have been urged for the appellant in this  Court.
\nOne  is\t that  the month of the tenancy was  to\t be  by\t the
\nBritish\t Calender  in  view of s. 2 7 of the Act  and  r.  4
\nframed thereunder, and that there could be no forfeiture  of
\nthe  tenancy when the arrears of rent had been\tpaid  within
\ntwo months of the institution of the suit.
\nThe  significance  of  the first question  is  that  if\t the
\nappellant’s  tenancy was to be by the month of\tthe  British
\nCalendar,  notice  to quit was a bad notice as\tit  did\t not
\ncomply\twith  the requirements of s.106 of the\tTransfer  of
\nProperty   Act\tand  that  therefore  there  had   been\t  no
\ndetermination of the tenancy which is a condition  precedent
\nfor  the landlord being entitled to possession\tand, coin.
\nsequently,  for\t instituting  a suit for  ejectment  on\t any
\nground\twhatsoever,  including the ground of rent  being  in
\narrears.\n<\/p>\n
The first point to determine, therefore, is whether it is  a
\ncondition  precedent  for  the institution of a\t suit  by  a
\nlandlord  for the recovery of possession from a\t tenant\t who
\nhas  been  in arrears of rent that there had  been  first  a
\ndetermination  of the contractual tenancy.  If it is  not  a
\ncondition  precedent; it will not be necessary to  determine
\nwhether\t the month of the tanancy continued to be  according
\nto  the\t Indian Calendar according to the contract,  or\t had
\nbeen according to the British
\n317<\/span>
\nCalendar  in  view of a. 27 of the Act, when  a\t tenancy  is
\ncreated\t under\ta  contract between  the  landlord  and\t the
\ntenant,\t that contract must hold good and continue to be  in
\nforce  till, according to law or according to the  terms  of
\ncontract,  it comes to an end.\tSection III of the  Transfer
\nof Property Act states the various circumstances in which  a
\nlease of immovable property determines.\t Clause (b) provides
\nfor  the determination of the lease on the expiration  of  a
\nnotice\tto determine the lease, or to quit, or of  intention
\nto quit, the property leased, duly given by one party to the
\nother.\tThere is nothing in the act which would give a right
\nto the landlord to determine the tenancy and thereby to\t got
\nthe right to( evict the tenant and recover possession.\tThis
\nAct was enacted for the purpose of controlling the rents and
\nrepair\tof  certain  premises and of evictions\tdue  to\t the
\ntendency  of  landlords\t to take advantage  of\tthe  extreme
\nscarcity  of premises compared to the demand for them.\t The
\nAct  intended  therefore to restrict the  rights  which\t the
\nlandlords  possessed either for charging excessive rents  or
\nfor.  evicting\ttenants.   A  tenant stood  in\tno  need  of
\nprotection  against eviction by the landlord so long  as  he
\nhad the necessary protection under the terms of the contract
\nbetween him and the landlord.  He could not be evicted\ttill
\nhis  tenancy was determined according to law  and  therefore
\nthere was no necessity for providing any further  protection
\nin  the\t Act  against his eviction so long  as\this  tenancy
\ncontinued to exist under the contract.\n<\/p>\n
Sub-section(1) of s. 12 of the Act provides that a  landlord
\nshall  not be entitled to the recovery of possession of\t any
\npremises so long as the tenant pays, or is ready and willing
\nto  pay,  the  amount of the  standard\trent  and  permitted
\nincreases,  if\tany,  and observes and\tperforms  the  other
\nconditions of the tenancy, in so far as they are  consistent
\nwith the
\n318<\/span>
\nprovisions  of\tthe Act.  It creates a\trestriction  on\t the
\nlandlords  right  to the recovery of possession.   When\t the
\nlandlord  will\thave  such a right is not  provided  by\t it.
\nOrdinarily,  the  landlord  will have  a  right\t to  recover
\npossession from the tenant when the tenancy had\t determined.
\nThe  provisions\t of  this  section  therefore  will  operate
\nagainst the landlord after the determination of the  tenancy
\nby any of the modes referred to in a. III of the Transfer of
\nproperty Act.  What this section of the Act provides is that
\neven after the determination of the tenancy, a landlord will
\nnot  be\t entitled to recover possession, though a  right  to
\nrecover possession gets vested in him, so long as the tenant
\ncomplies with what he is required to do by this section.  It
\nis this extra protection given by this section which will be
\nuseful to the tenant after his tenancy has determined.\t The
\nsection\t does.\tnot create a new right in  the\tlandlord  to
\nevict the tenant when the tenant does not pay his rent.\t It
\ndoes not say so, and therefore, it is clear that a landlords
\nright  to evict the tenant for default in payment.  of\trent
\nwill  arise  only after the tenancy is determined,  and\t the
\ncontinued  possession  of the tenant is not account  of\t the
\ncontractual  terms  but on account of  the  statutory  right
\nconferred  on  him to continue in possession so long  as  he
\ncomplies with what sub-s.1 requires of him.  The landlord is
\nrestricted-  from evicting the tenant till the\ttenant\tdoes
\nnot  do\t what he is required to do for\tpeaceful  possession
\nunder sub s.(1) of s. 12.  We are therefore of opinion\tthat
\nwhere  a  tenant  is in possession under a  lease  from\t the
\nlandlord,  he is not to be evicted for a cause\twhich  would
\ngive rise to a suit for recovery of possession under s.12 if
\nhis  ‘tenancy has not been determined already.\t It  follows
\nthat whenever a tenant acts in a way which would remove\t the
\nbar on the landlord’s right to evict him it is necessary for
\nthe landlord to serve him with. a notice
\n319<\/span>
\ndetermining  his  tenancy and also serve him with  a  notice
\nunder sub-s.(2) of s. 12 of the Act.\n<\/p>\n
In this connection reference may be made to what wag  stated
\nin Dr. K. A. Dhairyawan v. J. R. Thakur<\/a> .(1). In that  case,
\nthe  landlord  granted a lease of a parcel of  land  to\t the
\nlessees for a certain period.  The lessee was to construct a
\nbuilding on that land.\tOn the termination of the lease, the
\nlessees were to surrender and yield up the demised  promises
\nincluding the building to the lessors.\tAfter the expiry  of
\nthe  period of the lease, the lessor sued for a\t declaration
\nthat they were entitled to the building and were entitled to
\nclaim possession of the same.  The lessees pleaded that they
\nwere  also lessees of the building and were  protected\tfrom
\neviction  therefrom by the provisions of the  Bombay  Rents,
\nHotel  and  lodging House Control Act, 1947,  and  that\t the
\ncovenant  for delivering possession of that  building  could
\nnot  be enforced as the lease in respect of the\t land  could
\nnot be terminated on account of the protection given by\t the
\nAct.   It was held that under the lease there was  a  demise
\nonly of the land and not of the building, and, consequently,
\nthe provisions of the Act dit not apply to the contract-  of
\ndelivery  of possession of the building.  It  was  contended
\nthat  even in such a case, possession of the building  could
\nnot  be given until the lease bad been determined, which  in
\nlaw,  could  not be determined so long\tas  the\t respondents
\ncould  not  be evicted from the demised land of\t which\tthey
\nwere tenants within the meaning of the Act.  This contention
\nwas repelled.  It was said at p. 808:\n<\/p>\n
\t      “This  contention\t is  without  force  as\t the
\n\t      provisions  of the Act do not provide for\t the
\n\t      continuation  of a lease beyond the  specified
\n\t      period stated therein.  All that the Act\tdoes
\n\t      is to give to the person who continues to
\n(1) [1959] S.C.R. 799.\n<\/p><\/blockquote>\n
320<\/span><\/p>\n
\t      remain in possession of the land, although the
\n\t      period  of the lease had come to an  end,\t the
\n\t      status of a statutory tenant.  That is to say,
\n\t      although the lease had come to an end but\t the
\n\t      lessee  continued\t to  remain  in\t  possession
\n\t      without  the consent of the lessor,  he  would
\n\t      nonetheless be a tenant of the land and  could
\n\t      not be evicted save as provided by the Act.”\n<\/p><\/blockquote>\n
This means that the provisions of the Act did not affect the
\nterms  of the lease according to which the lease came to  an
\nend  after the expiry of the period for which it was  given.
\nThe lessee’s possession after the expiry of the lease was by
\nvirtue of the provisions of the Act and not by virtue of the
\nextension  of  the period of the lease.\t It is\ta  necessary
\nconsequence  of\t this  view  that  the\trestriction  on\t the
\nlandlord’s  right to recover possession under s. 12  of\t the
\nAct  operates after he has determined the tenancy  and\tthat
\ntill  then  the rights between the parties with\t respect  to
\neviction would be governed by the Ordinary law.
\nIt was said in Ragbubir Narayan Lotlikar v. Fernandez (1).\n<\/p>\n
\t      (Bom.   Rents, Hotel and Lodging\tHouse  Rates
\n\t      Control Act (Bom Act LVII of 1947): ,,’In\t our
\n\t      opinion,\ts.28  applies only  to\tthose  suits
\n\t      between  a  landlord  and\t a  tenant  where  a
\n\t      landlord has become entitled to possession  or
\n\t      recovery\tof the premises demised.  Under\t the
\n\t      Transfer\tof Property Act a  landlord  becomes
\n\t      entitled\t to  possession\t when  there  is   a
\n\t      determination  of tenancy.  A tenancy  can  be
\n\t      determined in any of the modes laid down in s.
\n\t      111; and once the tenancy is determined, under
\n\t      s.108  (q)  the  lessee is bound\tto  put\t the
\n\t      lessor into possession of the property.  It
\n(1)  (1952) 54 Bom.  L.R. 505, 511.\n<\/p>\n
 321<\/span><\/p>\n
\t      is,  therefore, only on the  determination  of
\n\t      the lease or the tenancy that the landlord be-
\n\t      comes  entitled to the possession of the\tpro-
\n\t      perty, and when he has so becomes entitled  to
\n\t      possession,  if he files a suit for  a  decree
\n\t      for possession, then s. 28 applies and such  a
\n\t      suit  can\t only be filed in the  Small  Causes
\n\t      Court.”\n<\/p>\n
Again it was said at the same page:\n<\/p>\n
\t      “Section 12 postulates the fact that landlord
\n\t      is  entitled to recovery of possession and  he
\n\t      is  only\tentitled  to  possession  under\t the
\n\t      provisions  of the Transfer of  Property\tAct.
\n\t      It  is only when he so becomes  entitled\tthat
\n\t      the  Legislature\tsteps in  and  prevents\t the
\n\t      enforcement  of  his right by  the  protection
\n\t      which it gives to the tenant.  No question  of
\n\t      the  application\tof  s. 12  can\tarise  if  a
\n\t      landlord\tis  not entitled  to  possession  at
\n\t      all.”\n<\/p><\/blockquote>\n
A similar view was expressed in Karsandas v. Karsanji (1) It
\nwas said:\n<\/p>\n
\t      “…that\ta  tenancy must be  duly  determined
\n\t      either  by  a notice to quit or by  efflux  of
\n\t      time or under one or the other of the  clauses
\n\t      of s. III, T. P, Act before a landlord can one
\n\t      to,  evict  his tenant on any of\tthe  grounds
\n\t      contained\t in the clauses of s-13 (1)  of\t the
\n\t      Bombay  Rent  Act as  applied  to\t Saurashtra.
\n\t      Therefore a notice determining the tenancy and
\n\t      calling  upon the tenant to quit was  in\tthis
\n\t      case   a\t necessary   prerequisite   to\t the
\n\t      institution of the suit.”\n<\/p><\/blockquote>\n
The cases reported as Rai Brij Raj Krishna v. S. K. Shaw and
\nBrothers<\/a>  (2) and Shri Hem Chand v. Shrimati Sham  Devi\t (3)
\nare distinguishable.  In, the former case, s.11 of the Bihar
\nBuildings
\n(1)  A.I.R. (1953) Sau. 113, 118. (2) [1951] S.C.R. 145,150.
\n(3)   I.L.R. (1955) Punj. 36.\n<\/p>\n
322<\/span><\/p>\n
(Lease, Rent and Eviction) Control Act, 1947, (III of 1947),
\ncame   for  interpretation  by\tthis  Court  and,  in\tthat
\nconnection it was said
\n\t      “Section\t II  beings  with  the\twords\t‘Not
\n\t      withstanding anything contained in any  agree-
\n\t      ment  or law to the contrary’, and  hence\t any
\n\t      attempt  to import the provisions relating  to
\n\t      the law of transfer of property for the inter-
\n\t      pretation of the section would seem to be\t out
\n\t      of place.\t Section 11 is a self-contained sec-
\n\t\t\t    tion,  and\tit  is\twholly\tunnecessary  to\t g
\no
\n\t\t\t    outside  the  Act  for  determining\t whether
\na
\n\t      tenant  is  liable to be evicted or  not,\t and
\n\t      under  what conditions he can be evicted.\t  It
\n\t      clearly  provides that a tenant is not  liable
\n\t      to  be evicted except on\tcertain\t conditions,
\n\t      and  one of the conditions laid down  for\t the
\n\t      eviction\tof a month to month tenant  is\tnon-
\n\t      payment of rent.”\n<\/p>\n
In the present case, s. 12 of the Act is differently  worded
\nand  cannot  therefore\tbe said to be  a  complete  Code  in
\nitself.\t  There\t is  nothing  in  it  which  overrides\t the
\nprovisions of the Transfer of Property Act.
\nShri  Hem  Chand’s  Case (1) dealt with\t the  provisions  of
\ns.13(i)\t of  the Delhi and Ajmer Merwara  Rent\tControl\t Act
\nXXXVIII\t of 1952.  This section provided that no  decree  or
\norder  for the recovery of possession of any promises  shall
\nbe  passed by any court in favour of the landlord against  a
\ntenant,\t notwithstanding anything to the contrary  contained
\nin  any other law or any con- tract.  It was held  that\t the
\nRent  Control Act provided the procedure for  obtaining\t the
\nrelief\tof ejectment and that being so the provisions of  s.
\n106  of\t the Transfer of property Act had no  relevance,  in
\nconsidering an application for ejectment
\n(1) I.L.R. (1955) Punj 36.\n<\/p>\n
323<\/span><\/p>\n
made   under  that  Act.   There  is  nothing  in  the\t Act
\ncorresponding  to  the provisions of s. 13(1) of  the  Delhi
\nAjmer  Merwara\tAct.  It is unnecessary for us\tto  consider
\nwhether Shri Hem Chand’s case was rightly decided or not.
\nIn Meghji Lakhamahi and Brothers V.  Furniture Workshop\t (2)
\nthe  Privy Council dealt with an application for  possession
\nunder s. 16 of the Increase of rent (Restriction) Ordinance,
\nNo. 23 of 1949 (Kenya) whose relevant portion is :\n<\/p>\n
\t      “(1)  No order for the recovery of  possession
\n\t      of  any  premises\t to  which  this   Ordinance
\n\t      applies,\tor  for the ejectment  of  a  tenant
\n\t      therefrom,  shall be made unless …  (k)\t the
\n\t      landlord\trequires possession of the  premises
\n\t      to  enables the reconstruction  or  rebuilding
\n\t      thereof to be carried out…”\n<\/p><\/blockquote>\n
It was said :\n<\/p>\n
\t      “In  the\tpresent case the  only\tquestion  is
\n\t      whether  section 16(i) (k) is so framed as  to
\n\t      envisage or make provision for such an order.
\n\t      An application for possession under section 16
\n\t      presupposes  that the contractual\t tenancy  of
\n\t      the demised premises has been determined.\t  It
\n\t      is not possible to determine it as to part and
\n\t      keep it in being as to the remainder.  In\t the
\n\t      present case the tenancy of the entire demised
\n\t      premises had been determined.”\n<\/p><\/blockquote>\n
The  right  to possession is to be. distinguished  from\t the
\nright to recover possession.  The right to possession arises
\nwhen  the  tenancy  is determined.   The  right\t to  recover
\npossession follows the right to possession, and arises\twhen
\nthe person in possession does not make over
\n(1) I.L.R. (1955) Punj.\t (2) (1954) A.C. 80,90.\n<\/p>\n
324<\/span><\/p>\n
possession as he is bound to do under law, and there  arises
\na necessity to recover possession through Court.  The  cause
\nof action for going to Court to recover possession arises on
\nthe  refusal of the person in possession, with no  right  to
\npossess,  to  deliver possession.  In this  context,  it  is
\nclear  that the provisions of s. 12 deal with the  stage  of
\nthe recovery of possession and not, with the stages prior to
\nit  and\t that they come into play only when the\t tenancy  is
\ndetermined and a right to possession has come in  existence.
\nOf course, if there is not contractual tenancy and a  person
\nis deemed to be a tenant only on account of a statute giving
\nhim  right to remain in possession, the right to  possession
\narises on the person in possession acting in a manner which,
\naccording  to  the  statute, gives  the\t landlord  right  to
\nrecover possession, and no question for the determination of
\nthe tenancy arises, as really speaking, there was no tenancy
\nin  the\t ordinary sense of that expression.  It is  for\t the
\nsake of convenience that the right to possession, by  virtue
\nof  the\t provisions of a statute, has been referred  to\t as
\nstatutory tenancy.\n<\/p>\n
In  Ebner  v. Lascelles (1) It was said,  dealing  with\t the
\nprovisions  of\tIncrease  of  Rent  and\t Mortgage   Interest
\n(Restrictions) Act, 1920 (10 and 11 Geo. 5, c. 17) :\n<\/p>\n
\t      “It  has been truly said that the main  rights
\n\t      conceded\tto  a tenant under these  Acts\tare,
\n\t      first  a\tright  to hold over  or\t ‘status  of
\n\t      irremovability,’\tand,  next, a right  not  to
\n\t      have  his\t rent unduly raised.  The  right  to
\n\t      hold over is a right that comes into existence
\n\t      after   the  expiration  of  the\t contractual
\n\t      tenancy.\t During the contractual tenancy\t the
\n\t      tenant,\tbeing\tin  possession\t under\t the
\n\t      protection of his contract, has no need of the
\n\t      protection of the Act to enable him to  retain
\n\t      possession, but
\n(1) (1928) 2 K.B. 486,497.\n<\/p><\/blockquote>\n
325<\/span><\/p>\n
\t      during  that tenancy the Act protects  him  in
\n\t      regard  to  rent by providing  that,  notwith-
\n\t      standing\tany  other agreements which  he\t may
\n\t      make  with his landlord as to rent, he is\t not
\n\t      to  be  charged  a higher rent  than  the\t law
\n\t      allows,  and  if he is charged a\thigher\trent
\n\t      than  that he can have it reduced.  The  right
\n\t      to hold over after the termination of the con-<\/p><\/blockquote>\n
\t      tractual tenancy. and the right to  protection
\n\t\t\t    during  the contractual tenancy are two  right
\ns
\n\t      which must be kept distinct from each other.”
\nIt  may be mentioned that s. 5 of the aforesaid Act of\t1920
\nprovided  that\tno  order or judgment for  the\trecovery  of
\npossession of any dwelling house to which the Act applied or
\nfor  the  ejectment of a tenant therefrom would be  made  or
\ngiven  unless  the  case  fell within  one  of\tthe  clauses
\nmentioned in sub. s.(1).\n<\/p>\n
We are therefore of opinion that so long as the\t contractual
\ntenancy continues, a landlord cannot sue for the recovery of
\npossession  even  if  s.12  of the  Act\t does  not  bar\t the
\ninstitution  of\t such  a suit, and that\t in  order  to\ttake
\nadvantage  of  this  provision\tof the\tAct  he\t must  first
\ndetermine  the tenancy in accordance with the provisions  of
\nthe Transfer of Property Act.\n<\/p>\n
It is now necessary to determine whether a notice served  on
\nthe  appellant to quit the tenancy on October 16, 1954,\t the
\nlast  date of the month according to the Hindu Calendar,  as
\nOctober\t 16 happened to be Kartik Vad 30 of S. Y. 2011,\t the
\ntenancy having commenced from Kartik Sud 1 of S.Y. 1963.  It
\nis not disputed that originally the tenancy was according to
\nthe  Hindu  Calendar.  The contention for the  appellant  is
\nthat  this month to month tenancy, according to\t the  Hindu-
\nCalendar, was
\n326<\/span>
\nconverted  to  a similar tenancy according  to\tthe  British
\nCalendar in view of the provisions of s.27 of the Act and r.
\n4 of the Rules framed under the Act.\n<\/p>\n
\t      Section 27 of the Act reads:\n<\/p>\n
\t      “(1) Notwithstanding anything contained in any
\n\t      law  for\tthe  time  being  in  force  or\t any
\n\t      contract,\t  custom  or  local  usage  to\t the
\n\t      contrary, rent payable by the month or year or
\n\t      portion of a year shall be recovered according
\n\t      to the British Calendar.\n<\/p>\n
\t      (2)  The\tState Government may  prescribe\t the
\n\t      manner in which rent recoverable according  to
\n\t      any  other  calendar before  the\tcoming\tinto
\n\t      operation of this Act shall be calculated\t and
\n\t      charged in terms of the British Calendar.”
\nRule  4 of the Bombay Rents, Hotel and Lodging\tHouse  hates
\nControl Rules, 1948, hereinafter called the Rules, reads:\n<\/p>\n
\t      “Calculation  of\trent  according\t to  British
\n\t      Calender.-If, before the Act comes into force,
\n\t      the  rent\t in  respect  of  any  premises\t was
\n\t      chargeable according to a calendar other\tthan
\n\t      the  British  Calendar,  the  landlord   shall
\n\t      recover  from the tenant rent for\t the  broken
\n\t      period  of the month, year or portion  of\t the
\n\t      year  immediately preceding the date on  which
\n\t      the Act comes into force, proportionate amount
\n\t      according\t to  the aforesaid  Calendar  month,
\n\t      year or portion of the year at which the\trent
\n\t      was  then\t chargeable.  After  such  date\t the
\n\t      landlord\tshall recover rent according  to  the
\n\t      British  Calendar.   The rent  chargeable\t per
\n\t      month according to the British
\n327<\/span>
\n\t      Calendar\tshall not exceed the rent which\t was
\n\t      chargeable  per month according to  the  other
\n\t      calendar\tfollowed  immediately  before\tsuch
\n\t      date.”\n<\/p><\/blockquote>\n
There is nothing irk the aforesaid rule or-the section about
\nthe  conversion of the month of the tenancy from  the  month
\naccording  to the Hindu calendar to the month  according  to
\nthe   British\tCalendar.   They  only\t provide   for\t the
\nrecoverability\t of  the  rent\taccording  to  the   British
\nCalendar.  Since the enforcement of the Act on February\t 13,
\n1948,  the monthly rent would be for the month according  to
\nthe  British Calendar.\tThe monthly rent could be  recovered
\nafter  the expiry of a month from that date or the rent\t for
\nthe  period from the 13th February to the end of  the  month
\ncould be recovered at the monthly rate and thereafter  after
\nthe expiry of each Calendar month.  There is nothing in\t the
\nsection\t or  the rule in regard to the date from  which\t the
\nmonth for recovery of rent should commence.  This  provision
\nwas made probably, as a corollary, to the statute  providing
\nfor  standard  rents.  Standard rents  necessitate  standard
\nmonths.\t  There\t are a number of calendars in  use  in\tthis
\ncountry.  The Hindus themselves use several calendars.\t The
\nMuslims\t use a different one.  Some calendars are  used\t for
\nparticular  purposes.\tIt  appears to be for  the  sake  of
\nuniformity and standardisation that a common calendar was to
\ngovern\tthe period of the month of the tenancy and the\tdate
\nfor  the recovery of the rent.\tRule 4 provided a  procedure
\nfor  adjustment of the recovery of the rent according  to  a
\ncalendar  other\t than  the  British  Calendar,\tand  further
\nprovided  that the rent chargeable per month,  according  to
\nthe  British Calender, would not exceed the rent  which\t was
\nchargeable  per\t month\taccording  to  the  other   calendar
\nfollowed  immediately before that date.\t In the\t absence  of
\nany  specific  provision  in the Act  with  respect  to\t any
\nalteration to be made in the period of the month of the
\n328<\/span>
\ntenancy,  it  cannot  be  held merely on  the  basis  of  an
\nalteration  in the period for the recovery of rent that\t the
\nmonthly\t period\t of  tenancy had  also\tbeen  changed.\t The
\ntenancy can be from month to month and the recoverability of
\nthe  rent may not be from month to month and may, under\t the
\ncontract, be based on any period say, a quarter or half year
\nor  a year.  There is nothing in law to make the  month\t for
\nthe period of recovering rent synchronize with the period of
\nthe  month  of\tthe tenancy.  The tenancy must\tstart  on  a
\nparticular  date, and, consequently, its month would be\t the
\nmonth  from that date, according to the\t calendar  followed.
\nThe month of tenancy according to that calender are  settled
\nby  contract  from the commencement of,\t the  tenancy.\t The
\ntenancy\t under\ta lease for a certain period starts  from  a
\ncertain date, be it according to the British Calendar or any
\nother Calendar.\t The period of, lease. and consequently\t the
\ntenancy,  comes\t to  an end at the  expiry  of\tthat  period
\naccording to the calendar followed by the parties in  fixing
\nthe commencement of the tenancy.  A lease, even according to
\nthe  British Calendar, can start from any intermediate\tdate
\nof  the\t calendar  month.   There is nothing  in  s.  27  to
\nindicate that the month of the tenancy to such a lease\twill
\nstart from the first of a regular month.  Section 27  simply
\nstates\tthat  the rent would be recovered according  to\t the
\nBritish Calendar without fixing the first date of the  month
\nas  the date from which the month, for the purposes  of\t the
\nrecovery of the rent, would be counted.\t It follows that the
\nmonth of the tenancy which commences on the 14th of a month,
\nwould  be  from\t the 14th to the 13th  of  the\tnext  month,
\naccording  to  the  British Calendar.\tThe  rent  would  be
\nrecoverable  with  respect .to this period of a\t month.\t  No
\ninterference  with  any such term of the contract  has\tbeen
\nmade by any provision of the Act and therefore we hold\tthat
\nthe provisions of s. 27 of the Act and r. 4 of
\n329<\/span>
\nthe  Rules,  do\t not in any way convert\t the  month  of\t the
\ntenancy according to the Indian Calendar to the month of the
\nBritish Calendar.\n<\/p>\n
The High court said in his judgment that Mr. Parghi, who was
\nappearing for the appellant, was unable to cite any decision
\nin support of the contention raised by him.  Our  attention,
\nhowever,  has been drawn to two cases decided by the  Bombay
\nHigh  Court.  They are Civil Revision Applications Nos.\t 247
\nof 1956 and 1583 of 1960 decided by Dixit and Tendolkar,  JJ
\nand  Patwardban\t J., on February 22, 1957,  and\t August\t 16,
\n1961,  respectively.  The latter decision had to follow\t the
\nearlier\t one.\tIn  the earlier case,  the  notice  to\tquit
\nrequired the tenant to give possession on May 1, 1953.\t The
\ntenancy had commenced according to the Hindu Calendar.\t The
\nnotice\twas  given according to the British  Calendar.\t The
\nHigh  Court held the notice to be valid, agreeing  with\t the
\ncontention  that ..the effect of the provisions of a. 27  of
\nthe  Act  was  lo  make the  tenancy  which  was  originally
\naccording to the Hindu Calendar, a tenancy according to\t the
\nBritish\t Calendar.  The ratio of the decision, in the  words
\nof the learned Judges, is :\n<\/p>\n
\t      “Now  rent  is payable for occupation  by\t the
\n\t      defendant\t and therefore, the tenancy must  be
\n\t      deemed  to  be one according  to\tthe  British
\n\t      Calendar\tfrom the first of the month  to\t the
\n\t      end of the month………………… Here  is
\n\t      a\t local\tlaw which by section  27  makes\t the
\n\t      tenancy  as  one\taccording  to  the   British
\n\t      Calendar”.\n<\/p><\/blockquote>\n
We are of opinion that- this view is wrong.  We,  therefore,
\nhold  that  the notice to quit issued to the  appellant\t was
\ntherefore  a  valid notice as held by the  Court  below\t and
\ndetermined the tenancy of the appellant.\n<\/p>\n
330<\/span><\/p>\n
The second contention that, the appellant’s having paid\t the
\narrears\t of rent within 2 months of the institution  of\t the
\nsuit,  there  would be no forfeiture of the tenancy  has  no
\nforce  in view of the provisions of s. 12 of the Act.\tSub-
\nsection\t (2) permits the landlord to institute a,  suit\t for
\nthe  eviction  of a tenant on the ground of  non-payment  of
\nrent  after the expiration of one month from the service  of
\nthe  notice  demanding the arrears of rent, and cl.  (a)  of
\nsub-s.(3)  empowers the Court to Pass a decree in  case\t the
\nrent  had  been payable by the month, there was\t no  dispute
\nabout the amount of standard rent, the arrears of rent,\t had
\nbeen for a period of six months and the tenant had neglected
\nto  make  the payment within a month of the service  of\t the
\nnotice\tof demand.  The tenant’s paying the arrears of\trent
\nafter the institution of the suit therefore does not  affect
\nhis  liability to eviction and the Court’s power to  pass  a
\ndecree for eviction.  It is true that the expression used in
\nel.  (a)  of sub-s.(3) is ‘the Court may pass a\t decree\t for
\neviction  in any such suit for recovery of possession’,\t but
\nthis does not mean as contended for the appellant, that\t the
\nCourt  has  discretion to pass or not to pass a\t decree\t for
\neviction  in  case the other conditions\t mentioned  in\tthat
\nclause\tare  satisfied.\t  The landlord\tbecame\tentitled  to
\nrecover\t possession when the tenant failed to pay  rent\t and
\nthis  right in him is not taken away by any other  provision
\nin the Act.  The Court is therefore bound in law to pass the
\ndecree\twhen  the  requirements of  sub-s-(2)  of  s.12\t are
\nsatisfied.   This  is also clear from a\t comparison  of\t the
\nlanguage  used in cl. (a) with the language used in cl.\t (b)
\nof  sub-s.  (3) which deals with a suit for  eviction  which
\ndoes not come within cl.(a) and provides that no decree\t for
\neviction shall be passed in such a suit if on the first\t day
\nof  hearing of the suit or on or before such other  date  as
\nthe Court may fix, the tenant pays or tenders in Court the
\n331<\/span>
\nstandard  rent then due and thereafter continues to  pay  or
\ntender in Court regularly such rent till the suit is finally
\ndecided\t and also pays costs of the suit as directed by\t the
\nCourt.\t It is clear that where the legislature intended  to
\ngive some benefit to the tenant on account of the payment of
\nthe  arrears  during  the pendency of the suit,\t it  made  a
\nspecific provision.  In the circumstances, we are of opinion
\nthat  the Court has no discretion and has to pass  a  decree
\nfor eviction if the other conditions of sub.s. (2) of s.  12
\nof the Act are satisfied.\n<\/p>\n
The  result  therefore\tis that this appeal  fails,  and  is
\naccordingly dismissed with costs.\n<\/p>\n
\t\t\t    Appeal dismissed.<\/p>\n","protected":false},"excerpt":{"rendered":"
Supreme Court of India Bhaiya Punjalal Bhagwanddin vs Dave Bhagwatprasad Prabhuprasad on 4 May, 1962 Equivalent citations: 1963 AIR 120, 1963 SCR (3) 312 Author: R Dayal Bench: Dayal, Raghubar 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: […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[30],"tags":[],"class_list":["post-48202","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"\nBhaiya Punjalal Bhagwanddin vs Dave Bhagwatprasad Prabhuprasad on 4 May, 1962 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/bhaiya-punjalal-bhagwanddin-vs-dave-bhagwatprasad-prabhuprasad-on-4-may-1962\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Bhaiya Punjalal Bhagwanddin vs Dave Bhagwatprasad Prabhuprasad on 4 May, 1962 - 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