Govinda Chandra Das vs Sitanath Paul

P. Chatterjee, J.—This is a second appeal on behalf of the Defendant tenant in a suit for ejectment on the ground of default. The suit was instituted on May 17, 1955, while the West" Bengal Premises Tenancy Act of 1950 was still in force.

The Plaintiff''s case was that the Defendant was a sub-tenant under one Priyalal Karmakar whose tenancy was determined by a decree in a suit for ejectment in suit No. 2161/51 and the date of the decree was September 25, 1951. According to the Plaintiff a notice to quit was served upon the Defendant and he instituted the suit thereafter terminating the tenancy according to English calender month. His further averments are that the Defendant has been a defaulter from September 25, 1951, to April, 1954, Mr. Mitter on behalf of the Defendant Appellant has taken the following points:

(i) There being no default within 18 months of the institution of the suit there was no default for which the ejectment suit would lie.

(ii) The landlord having accepted a sum of Rs. 400 from the Defendant has waived the defaults, if any, and, therefore, even if there were defaults, the Plaintiff landlord cannot take advantage of them.

(iii) The tenancy of the Defendant having commenced since September 26, 1951, the notice terminating the tenancy according to English calender month is a bad one.

(iv) The tenancy between the Plaintiff and the landlord, though created by statute, became subsequently a tenancy by contract because of the demand letter and also because of a notice to quit and the notice being bad, the suit must be dismissed.

Regarding the first question of default Mr. Mitter says that there being no default within 18 months of the suit, there was no default in law. Mr. Mitter refers to a decision of the Division Bench in a case between Amal Krishna Basu and Others Vs. Chandi Charan Banerjee, .

There is a subsequent decision of another Division Bench presided over by Mr. Justice Das Gupta, then of our High, Court, where he has considered his earlier decision in 56 C.W.N. 528, with reference to the Full Bench decision in Ajit Kumar Roy Vs. Surendra Nath Ghose, . Having given matter has best consideration he has found as follows:

The correct position in law, in my opinion is that in applying the proviso to suits instituted when the 1950 Act was in force the Court is to see whether during any period of 18 months between the dates of the Act and the institution of the suit there has been three defaults of the nature indicated.

In the aforesaid decision in Gopal Chandra v. Murari Mohan (1958) 62 C.W.N. 614he has made it clear that any three defaults after the passing of the Act of 1950 are all that is necessary provided they were before the suit was instituted. In that view of the matter, I must over-rule the first contention of Mr. Mitter.

The next question that I shall deal with is regarding the date of the commencement of the tenancy. The section says that a sub-tenant would become a direct tenant on the same terms and conditions. According to Mr. Hemanta Kumar, if the tenant had been a tenant according to English calender month, that is a term of the lease and, therefore, the sub-tenant would also become a tenant according to English calender month. He refers to Section 13(2) of the Act of 1950. According to Mr. Lala, the tenancy must, therefore, be considered not to have commenced from September 26, 1951, but that he would be considered to be a tenant for 4 days of September and then from October 1, according to English calender month or, in other words, Mr. Lala says that in considering the terms of the tenancy the few days in September must be over-looked. The question is whether it could be over-looked or a tenancy for four days in September would have been implied. If none of these happened, tenancy must be deemed to be a monthly tenancy beginning from September 26, 1951 and ending on October 25, 1951.

I shall now consider this aspect of the matter. The definition of the word "tenant" says that a person, who is liable for payment of rent to the landlord, is a tenant. A tenant is a person by whom rent is payable or is liable to be sued by the landlord for rent. Section 12 read with Sections 13 and 14 apply proves that for rent. Section 12 read with Sections 13 and 14 amply proves that with Section 111 of the Transfer of Property Act the tenant will not be ejected except under certain circumstances provided he goes on paying or depositing rent either in Court or before the Rent Controller in terms of the statute. If it is the duty of the tenant to deposit the rent as a condition for continuance in possession, then that duty imposes a liability upon the tenant to pay rent and create a right in favour of the landlord to sue for rent within the meaning of Section 2(11). Therefore, till the date the ejectment decree is passed, Priyalal Karmakar would remain the tenant. If Priyalal remained the tenant till the date of the ejectment, there could be no tenancy in favour of the Defendant during that period. Section 13(2) says that the sub-lessee, shall be deemed to be a tenant directly under the landlord of the tenant whose tenancy has been determined on terms and conditions on which the sub-lessee would have held under the tenant if the tenancy of the latter had been so determined. According to Mr. Lala, the tenancy of the tenant, if it had not been determined, would have been a tenancy according to English calender month. Indeed that is so. Commencement of a tenancy is certainly a term of the tenancy. Therefore, the term of the tenancy would ordinarily include the date of commencement of the tenancy. The question is: is there anything in the Act, which excludes that date or commencement from the "term of "the tenancy". The section itself excludes it and the scheme of the Act also excludes it. The tenancy remained a tenancy of the tenant till the date of the decree passed in the ejectment suit. After that date if the term be a monthly term, then it would begin from the next date. If it would not be merely a ''''monthly tenancy" but "a monthly tenancy commencing "according to a calender month", then during 4 days of September there would be no tenancy in favour of the sub-lessee or in other words, the sub-lessee would be deemed to have become a tenant from the first date on of the commencement of date of the tenant''s lease and that is Priyalal''s lease. But the section does not say so. According to the section the sub-tenant becomes a direct tenant from the date of the determination and that is the date of the decree for ejectment. If the Legislature intended to say any thing on that point, the Legislature would have made it clear. The words used by the Legislature are the true depository of their intent as has been held by the Supreme Court. That intent is clear and that intent is: it would be a monthly tenancy from the date of the determination of the tenancy and that, it will not remain in suspense till the date of the commencement of the tenancy of the tenant. In hat view of the matter, I must over-rule the arguement of Mr. Hemanta Kumar and accept the argument of Mr. Mitter that the sub-lessee became a direct tenant with effect from September 26, 1951, i.e. the date next on which the decree was passed I have now held that there was default within 18 months and that the sub-tenant became a direct tenant with effect from September 26, 1951 and not according to English calender month. The two questions that now remain for consideration are�

(i) whether by acceptance of rent or acceptance of a sum of Rs. 400 there was any waiver of the default; and

(ii) whether the notice to quit is bad as not ending with the last date of the tenancy.

With regard to the first question of waiver, the sub-tenant became a tenant not because of any contract between the parties �it was by statute that the sub-tenant became a tenant and that provision in the statute is binding on both the parties. The well recognised rule is there is no estoppel against statute. The statute-provided that rent was payable by the Defendant after he became a tenant of the landlord Plaintiff. The statute also implies that the landlord-Plaintiff would sue him. If he could sue him for, rent, that will be no more waiver than by acceptance of rent. The landlord accepted him as a tenant not because he wanted to do or, in other words, the tenancy was not by act inter vivos; it was something which was trust upon them by statute, whether they liked it or not. The tenant was entitled to continue in possession and would be protected from eviction provided he paid rent and the landlord, as a condition of such possession, would be, entitled to realise "rent" from the "tenant''''. Such, acceptance of "rent" was an act in obedience, of the statute or at least in consonance with the provision of the statute and when he accepted "rent" he merely-acted in terms of the provisions of the statute and, therefore, there is no question of any waiver of default. The default, itself is something which is a creature of -the statute. The relationship of the landlord and the new tenant, the former sub-tenant, is something which is also a creature of the statute. So any act which is consistent with the statute cannot constitute a waiver; but there, are acts which are not consistent with the statute. If new terms and conditions relating to tenancy are agreed to between the parties and if such terms are not contemplated by statute nor'' provided therein,, there may be a creation of, a new contractual tenancy. In my opinion, there is no question of waiver of default in the circumstances of this case.

The next question is whether the notice is bad. If a notice was necessary, there is no doubt it would be bad, but. in my opinion, no notice was necessary.

As I have stated above, there was no contractual tenancy between the Defendant and the Plaintiff and the rights and liabilities of the parties were completely created by the statute and as soon as the statute ceases to operate the landlord would be entitled to get a decree for possession as against the persons, who would not be entitled to protection or in other words, as soon as any of the conditions contemplated in Section 12 is complied with the Defendant would cease to be protected and there being no contractual tenancy created between the parties, no question of determination would arises. Section 111 of the Transfer of Property Act, which refers to determination of contractual tenancy, refers only to the contractual tenancy entered into between the parties by act inter vivos. In this case there is no tenancy created between the parties by act inter vivos. There being no contractual tenancy, no question of determination of such tenancy arises and, therefore, in my opinion, there is no question of a notice to quit. As no notice to quit is necessary, the notice that was issued was merely a notice informing the tenant that he would take proceedings against the Defendant if he would not vacate voluntarily but there was no question of a notice-to quit within the meaning of Section 111 of the Transfer of Property Act. Therefore, no question of the notice being bad or sufficient arises. It is merely an information given by the landlord of his intention not to allow him to continue in possession as he failed to comply with the terms of the statute which gave him protection.

The question of law that I have considered above has already been considered by decisions of our Court as well as of the Federal Court and of the superior Courts in England which have been followed both by the Federal Court and our High Court.

The decisions of the English Court are numerous and two of them which may be referred to are (i) Devies v. Bristow [1920] 2 K.B. 428 and (ii) Morrison v. Jacobs [1945] 1K.B. 577: (1945) 2 A.E.R. 430 where it was held by the Court of Appeal that "Although the Appellant had received rent from the Respondent because he continued to occupy the house after the expiry of the agreement, the mere acceptance of rent did not justify the inference that a new tenancy from year to year had been cheated. This case as well as the earlier one were considered by the Federal Court in Capadia v. Warden, (1949) 53 C.W.N. 73, 79 F.B. Mr. Justice Mukherjee, after referring to the immunity under the state, observed that "In such circumstances, acceptance of rent by the landlord from, a statutory tenant-whose lease "has already expired could not be regarded as evidence of a new "agreement of tenancy, and it would not be open to such a tenant to "urge, by way of defence, in a suit for ejectment brought against "him, under the provisions of the Rent Restrictions Act that by "acceptance of rent, a fresh tenancy was created which had to be "determined by a fresh notice to quit". This case of the Federal Court and the aforesaid cases were considered by a Division Bench presided over by our present Chief Justice in a case between Haralal Das and Another Vs. Pasupati Charan Biswas and Others, where. it has been held that "the statutory tenancy of the Defendant No. 1 "was not required to be determined by service of notice under "Section 106 of the Transfer of Property Act" and their Lordships held that no notice was required to be served by the Plaintiff for the determination of a statutory tenancy. The nest case that I consider of this Court is one between Kartick Chandra Das v. Gangadutt Murarka (1955) 59 C.W.N. 827. The legal position, has been considered again and the circumstances, which were relied upon for the Creation of a tenancy, were (i) assenting to the tenant, continuing in possession; (ii) accepting rent from the tenant; (iii) notice to quit and (iv) the contents of the said notice and averments made in the plaint, filed in the suit. Mr. Mitter has taken three of them but has not referred to the plaint in he suit. The averments in that case and in the present suit are similar and Mr. Mitter might have taken that as another ground. But mere description in the plaint to "tenancy" serving the notice to quit, acceptance of rent and assenting to the tenant continuing in possession were all acts which the landlord was entitled to do by virtue of the Act. By the Act itself a sub-tenant becomes a ''''tenant'''' and, if the landlord calls such a person a "tenant" in his plaint, he does nothing but merely says what has been stated in the statute. If he assents to his continuance in possession he does so because he cannot do otherwise. If he gives a notice to quit, he merely says that he intends to take possession and, if the tenant under the statute does vacate within a time fixed by the notice he would not bring the suit which would harass both the parties. All those acts were considered and it was held that there was no contractual tenancy by any of these acts and the tenancy created by the statute does not require to be determined by a notice u/s 111 of the Transfer of Property Act. In that view of the matter the objections of Mr. Mitter must be over-ruled.

The result is that the appeal is dismissed. Taking various matters into consideration and also that the suit was on ground of default, I allow the Defendant to continue for two years and vacate on August 31, 1962 provided he goes on depositing money at the rate of Rs. 50 per month for his use and occupation of every month, within the 15th day of the next month. The first of such deposit is to be made on the 15th of September or the same amount may be paid by the learned Advocate for the Appellant to the learned Advocate for the Respondent and the receipt for that may be filed and for the rest of the amounts they would be deposited in Court for the rest of the two years.

Mr. Mitra gives an undertaking that his client will vacate on August 30, 1962 which undertaking is accepted by the Court. Mr. Mitra also gives an undertaking on behalf of his client, which is accepted by the Court, that his client will not sub-let, injure or damage the premises in any way or transfer it in any way during this period of two years. In default of any instalment the decree will be executable at once and on payment of the amounts the opposite party will be entitled to withdraw the same without furnishing any security. Any money that has been deposited by the Appellant will be withdrawn by the opposite party without furnishing any security whatsoever.

There will be no order for costs so far as this Court is concerned.

Leave to appeal under Clause. 15 of the letters Patent is asked for and refused.