Firm Ganesh Das Ram Gopal vs Jamuna Das and Others

Shearer, J.—This second appeal, which is by the defendant, arises out of a suit in ejectment. The defendant was and had, for a period of about 15 years, been a monthly tenant of a house situated in the town of Muzaffarpur. On 7th July 1942, a notice to quit was served on him. This notice expired on 3lst July 1942, and one of the two points taken by Mr. S. N. Bhattacharyya for the appellant, is that the notice was not a valid notice inasmuch as it did not expire on the proper day. According to Mr. Bhattacharyya, the notice should have expired on 1st August 1942, and not on 81st July 1942. It is true that, if a lease is made for a period of one month, commencing on the first day of the month, that lease will, by reason of the provisions contained in Section 110, T. P. Act, expire at midnight on the first day of the following month. In other words, if, in law, there was a re-letting of the house to the defendant on 1st July 1942, and if there were no other provision in the T. P. Act besides s. no which applied, the argument put forward by the learned advocate for the appellant would be unanswerable. Neither of these assumptions can, however, be made.

In the first place, a letting to a monthly tenant is not a letting which expires at the end of the first month or at the end of each succeeding month nor is there a re-letting at the commencement of each month of the tenancy. In the ordinary course, as in the present case, it is a letting for a period of time which is determinable by due notice: see the observations of McCardie J. in Mellows v. Low (1923) 1 K. B. 522 . Secondly, Section 106, T. P. Act, explicitly provides that a lease from month to month is terminable ''''by fifteen days notice expiring with the end of a month of the tenancy." Where, therefore, the tenancy has commenced on the first of a month and it is apparently admitted that this particular tenancy did so, the notice must expire with the last day of a month. The learned advocate for the appellant relied on a decision of their Lordships of the Judicial Committee in AIR 1932 279 (Privy Council) and on a subsequent decision of Ameer Ali J. in the High Court of Calcutta in Charu Chandra v. Bankim Chandra 42 C. w. N. 1115 in which that decision was followed. When, however, these decisions are closely examined, it will be seen that they do not support, but negative, the contention which has been put forward by Mr. Bhatta-charyya. It is important to notice that in each of these two cases the defendant had been a tenant under a lease for a term of years and, on the expiry of the lease had been permitted to hold over, thereby becoming a monthly tenant.

In AIR 1932 279 (Privy Council) the lease under which the defendant had originally been let into possession of the premises was a lease for four years expressed to be "from 1st June 1921." By reason of the provisions contained in Section 110, T. P. Act, this lease came to an end at midnight on 1st June 1925. The monthly tenancy, therefore, commenced on 2nd June 1925, and any notice determining it had therefore to expire on the first day of a month. It is quite clear from the judgment of Lord Tomlin that, in determining when the original tenancy came to an end and the periodic tenancy commenced, regard had to be had to the provisions of Section 110; but that, in determining when the notice terminating the periodic tenancy had to expire, regard had to be had to Section 106, T. P. Act. In my judgment, therefore, the notice which was given to the defendant was a valid notice. The other point taken by Mr. S. N. Bhattacharyya, for the appellant, is that the Bihar House Rent Control Order, 1942, applies, and that by reason of the provisions contained in Section 13 of that Order the lower appellate Court was bound to dismiss the suit. Section 13 is in these terms:

Bar against orders for recovery of possession of house in possession of a tenant.-No order for the recovery of possession of any house shall be made so long as the tenant pays or is ready and willing to pay rent to the full extent allowable by this Order and performs the conditions of the tenancy.

The Bihar House Rent Control Order was extended to the district of Muzaffarpur by a notification published on 1st April 1944.. The suit out of which this appeal arises had been instituted on 6th August 1942 and had been decreed on 30th November 1943. On 1st April 1944, an appeal against the decision of the trial Court was pending, and, in the meantime, execution of the decree had been stayed. Mr. Bhattacharyya contends that the word �tenant" in Section 13, Bihar House Rent Control Order, 1942, must be construed as including any person in possession of a house who has been let into possession of that house under a tenancy agreement, even if his tenancy has been determined by a valid notice to quit. It would, on the face of it, be doing extreme violence to the language to construe the word ''''tenant" as including a person in the position of the defendant whose tenancy, prior to the coming of the Bihar House Rent Control Order into operation, had not merely been determined but against whom a decree in ejectment had been passed, and who, if he was still in possession of the house, was in possession merely because the civil Court had stayed the execution of the decree. The word "tenant" in Section 13 must, in my judgment, be confined to persons who are either tenants under a tenancy agreement or are statutory tenants by reason of the provisions contained in either Section 4 or Section 12 of the Order itself. To'' put the enlarged construction on the word "tenant," for which Mr. Bhattacharyya contends, would lead, in one case at least, to the most anomalous consequences.

Sections 4 and 12 of the Order both provide that, even where a tenant has become a statutory tenant, the Controller may, in certain, circumstances, require him to vacate the house. Suppose that in such a case the order of the Controller is disobeyed and the landlord has to institute a suit in ejectment. If the construction of Section 13, for which Mr. Bhattacharyya contends is the correct one, the civil-Court would, in such a case, be bound to dismiss the suit. If, on the other hand, the construction is that which I have just indicated, the defendant in such a suit could not plead that he was a statutory tenant and not being one would be liable to be ejected. Mr. Bhattacharyya referred to an observation of Lord Atkin in Karnani Industrial Bank v. Satya Niranjan Shaw A. I. R. 1928 P. C. 227 and to a decision of the English Court of Appeal in Remon v. City of London Real Property Co. Ltd. (1921) 1 K. B. 49, which was there referred to. Lord Atkin,, however, in saying that the word "tenant" might include an ex-tenant, was careful to add the qualifying words "in its proper context." As to the decision in (1921) 1 K. B. 49 it is scarcely necessary to point out that that decision turned on the language used in certain sections of the Increase of Bent and Mortgage Interest (Restrictions) Act 1920. The plaintiff in that action was a person who had been in possession of the premises when the Act came into operation. Prior to that,, it is true, notice to quit had been served on him, and immediately afterwards the landlord had forcibly and, without the intervention of the Court, dispossessed him. The plaintiff sued for recovery of possession, and the Court of Appeal took the view that, if by reason of the provisions contained in the Act he would have been entitled to retain possession of the premises, he must be entitled to recover possession of them from the landlord.

Scruttcon L. J. relied on the decision of Lord Reading C. J., in an earlier case, Dobson v. Bichards (1919) 147 L. T. 96. In that action the plaintiff sued to eject a tenant on whom he had served a notice to quit prior to the date on which the Increase of Rent and Mortgage Interest (Restrictions) Act, 1919, had come into operation. The ground on which the action was dismissed was that, although the tenancy by agreement had been determined, the defendant was by implication of law a tenant at sufferance. It is to be observed that both in this case, and in Remon v. City of London Real Property Co. Ltd. (1921) 1 K. B. 49, the defendant had been led into possession under a lease for a term of years. If the defendant had been a monthly tenant and, certainly, if an action in ejectment was already pending when the statute under which he claimed relief came into operation, he would not, I think, have succeeded. For one thing, the law does not apparently imply a tenancy by sufferance when a monthly tenant remains on after service of a notice to quit, and for another, any such tenancy would in any case cease as soon as an action in ejectment is brought (see Cole on Ejectment, 455-G). These and similar decisions of the Courts in England are of no assistance to us in determining the question that arises here. In my judgment it is quite impossible to say that an ex-tenant against whom a decree in ejectment has been passed can still be regarded as a tenant within the meaning of the word as it occurs in Section 13, Bihar House Rent Control Order, 1942. For these reasons I would dismiss this appeal with costs.

Mr. S. N. Bhattacharjyya pointed out that his client dealt in petrol and motor accessories and said, that if he was required to vacate the premises immediately much inconvenience would or might be caused to the public. If this is really so, it may perhaps be open to the authority which deals with such matters, in the present emergency, to require the plaintiff to give the defendant time to vacate the premises; but it would not, I think, be proper for us-if indeed it is at all open to us-in giving the plaintiff the decree to which he is entitled to make an order which would have the effect of suspending his right to execute the decree. The defendant must either come to some arrangement with the plaintiff or must approach the authority, if there is one, competent to maintain him in possession of these premises.

Varma, J.

I agree.