Keshavlal Virchand vs Bai Ajawali Vachharaj

Shah, C.J.—The Plaintiff is the purchaser of a house situated in Bhavnagar from one Manilal Chhotalal, she having purchased it on 30-3-1949. The Appellant was the tenant of a portion of the house from the original owner Manilal under a rent note dated 18-9-1944 on a monthly rent of Rs. 8-4-0. The Defendant did not pay rent to the Plaintiff and her predecessor-in-title for 16 months. After Manilal sold the house to the Plaintiff, the Defendant unauthorisedly took possession of the portion which was occupied by Manilal. The Plaintiff therefore gave a notice dated 21-5-1949 asking the Defendant to pay the arrears of rent and give vacant possession of the house within 15 days of the notice, alleging that the house had become dilapidated and it was necessary to have it demolished and re-built. On 25-6-1949, she filed this suit in the Court of the Civil Judge, Senior Division, Bhavnagar, for recovery of arrears of rent and for possession of the house. The Defendant denied that he had committed a breach of the tenancy and stated that he had been dispossessed of a portion of the house, and he also denied the Plaintiff''s claim to payment of rent until possession was restored to him. The learned joint Civil Judge dismissed the suit on the ground that the notice calling upon the Defendant to pay the arrears of rent was not in accordance with Section 12(2) of the Bombay Rents, Hotels and Lodging House Rates Control Act as applied to Saurashtra and that it was not proved that the Defendant had occupied any portion in excess of the portion which was let to him and had thereby committed a breach of the lease. He also held that possession of the entire portion which was included in the rent note was not given to the Defendant, and the Plaintiff was therefore not entitled to any rent until possession of the entire portion let to the Defendant was fully restored. In appeal the learned District Judge ordered the Defendant to pay rent to the Plaintiff at the rate of Rs. 8-4-0 per month. He also held that the Defendant had unauthorisedly occupied a portion of the house after Manilal sold it to the Plaintiff and committed a breach of the tenancy and the Plaintiff was therefore entitled to obtain possession of the house. He held that though the notice of demand for payment of arrears of rent did not comply with the requirements of Section 12(2) of the Rent Act, the Plaintiff''s right to institute a suit for eviction of the Defendant was not affected thereby as the cause of action was not based only on non-payment of rent. She had succeeded on the second ground viz. breach of the contract of the tenancy and the invalidity of the notice u/s 12(2) could not prejudice her right to claim possession from the Defendant on the ground of breach of a condition of the tenancy. He therefore gave a decree for eviction against the Defendant in respect of the portion of the house actually leased to him. The Defendant has preferred this second appeal against the learned District Judge''s decree.

We may observe that the trial Court had passed an order dated 25-1-1950 u/s 16 of the Act directing the Defendant to hand over possession of the premises to the Plaintiff to enable her to repair them and the Plaintiff was directed to restore possession to the Defendant after effecting the repairs on 15-3-51. The Defendant however did not vacate the premises as ordered and therefore the learned District Judge states in the judgment under appeal that his present decree was not a decree u/s 16 and therefore the Appellant was not entitled to an order directing the Respondent to restore possession to him. The learned Advocate urged that the provisions of Section 16 were mandatory and the Court''s decree should have contained a direction ordering restoration of the house to the Defendant after repairs are effected. But that order was already made in January in 1951and the Appellant did not obey it. The District Court''s present decree is not made u/s 16 and therefore the learned District Judge was right in not incorporating therein a direction for re-entry.

The learned District Judge held that by unauthorisedly occupying the portion of the house which was occupied by Manilal, the Defendant had committed a breach of the tenancy. We do not agree with this view. The Defendant was entitled to occupy a certain portion of the house under the rent note and he had occupied. it. If later on he occupied a portion of the house, which was not included in the rent note, his act cannot be regarded as a breach of any of the terms of the tenancy. He is at the most a trespasser of the portion which he unauthorisedly occupied.

But the Defendant is undoubtedly in arrears of rent and the learned-Advocate argued that the issue of arrears of rent was not raised in the suit. This is not correct. Issue No. 3 in the suit was whether the facts alleged in paras 4 and 5 of the plaint are proved. This issue covers the issue of arrears of rent which was alleged in para. 4 of the plaint. The Defendant did not deny the Appellant''s allegation that he had not paid the rent but he justified non-payment on the ground that he was dispossessed by the Plaintiff of a portion of the house let to him. This defence has not been accepted by the District Court and consequently it must be held that the Defendant is in arrears of rent. This finding is implicit in the judgments of both the Courts below, and entitles the Plaintiff to institute a suit against the Defendant for eviction u/s 12 of the Rent Act. But under Sub-section (2) of that section, no such suit can be instituted before the expiration of one month after the notice in writing has been served by the landlord upon the tenant demanding arrears of rent. In this case the Plaintiff served a notice upon the Defendant calling upon him to pay rent within 15 days and on the strength of this demand it is urged that by fixing the 15 days time limit for the payment of rent in the notice the Plaintiff curtailed the period of one month prescribed by Section 12(2) and the notice therefore was not a valid notice. We do not think that that is a correct interpretation of the sub-section. All that is required under it is that the landlord should serve a notice on the tenant in writing demanding arrears of rent and should allow one month to elapse before filing the suit. It does not prohibit the landlord from asking the tenant to pay rent within a specified period. Arrears of rent which have become due are payable on demand and therefore the landlord''s right to file a suit cannot be prejudiced because the notice gives time to the tenant to make payment. It cannot be disputed that the suit was filed one month after the notice was served upon the Defendant and the Plaintiff is therefore entitled to a decree for eviction.

The learned Advocate for the Appellant next contended that the Plaintiff''s suit should have been dismissed because even if a notice u/s 12(2) was validly served on the Appellant, a notice terminating the tenancy under and conforming to the requirements of Section 106 of the Transfer of Property Act was necessary before the Plaintiff could sue the Defendant for possession. He submitted that the Bombay Rent Act as applied to Saurashtra had not the effect of abrogating the provisions of the Transfer of Property Act and consequently the necessity for a notice under the latter Act was not dispensed with by the former Act. He enunciated the principle that where the tenant was in possession of the premises under a contractual tenancy, it was necessary for the landlord to show not only that he was entitled to sue for possession under the Rent Act but also that the tenancy has been validly terminated in the manner provided by the Transfer of Property Act. The notice which the Plaintiff gave, it must be conceded, was not in accordance with Section 106, Transfer of Property Act.

Before we take up the consideration of the above argument, we shall dispose of a submission advanced on behalf of the Respondent. It was urged by her learned Advocate that the rent note under which the Defendant was in occupation of the house contained a contract to the contrary and therefore fifteen days'' notice expiring with the month of the tenancy prescribed by the Transfer of Property Act was not necessary. Her Advocate had given him a notice to quit and under the terms of the rent note that was quite enough to determine the tenancy. This argument is based on one of the conditions of the rent note, viz., that the tenant is to deliver vacant possession to the landlord without delay when at whatever time the landlord makes a demand for vacating the leased portion. In our view this condition merely means that the tenancy is not for a fixed term, but it does not amount to contract to the contrary to which the provisions of Section 106, Transfer of Property Act are subject. Therefore the tenancy can only be terminated with a fifteen days'' notice expiring with the end of the month of the tenancy. We are unable to agree with the Respondent''s learned Advocate that the notice actually served on the Defendant complied with the requirements of the Transfer of Property Act.

We now revert to the Defendant''s argument that even if the Plaintiff''s notice was a valid notice under the Rent Act it could not have the effect of terminating the tenancy and that unless the tenancy was determined the Plaintiff was not entitled to evict the tenant. We have considered at length the question of the tenancy being required to be terminated in accordance with the Transfer of Property Act, in reference to the provisions of Section 13(e) of the Rent Act in our judgment in -- Karsandas v. Karsanji AIR 1953 Sau 113 (A) and for reasons there stated we have held that the corresponding provisions of Section 111 or Section 103 of the Transfer of Property Act have not been abrogated by Section 13 or indeed by the provisions of any other Section of the Rent Act, including Section 15, and that in order that the landlord can become entitled to evict the tenant on any of the grounds of Section 13(1) of the Rent Act the lease must first be determined in accordance with Section 111, Transfer of Property Act, by a valid notice. We have not specifically considered the provisions of Section 12 of the Rent Act in that judgment and we propose to do it now. What Section 12 says is that a landlord shall not be entitled to evict the tenant so long as the tenant is ready and willing to pay the standard rent and permitted increases, if any, and observes and performs the other conditions of the tenancy. It follows therefore that if the tenant is in arrears of rent or if he fails to observe and perform the other conditions of the tenancy, the landlord becomes entitled to recover possession. If the ground is one of non-payment of rent, then Sub-section (2) of Section 12 says that before suing for possession the landlord should serve a notice on the tenant demanding payment of the rent, and such notice should be served in the manner prescribed in Section 106 of the Transfer of Property Act, which means in the manner provided for in paragraph 2 of Section 106. He should wait for a month after the service of such notice before instituting the suit. If the tenant pays in the meantime the landlord cannot sue and even if the tenant pays at the hearing of the suit, the Court will not pass a decree for eviction. Thus Section 12 gives a general protection that the tenant shall not be evicted so long as he pays the rent (and observes and performs the other conditions of the tenancy), and it also confers further benefits on the tenant. The question, however, is whether because of these benefits given to the tenant, is the tenant deprived of the safeguards conferred on him by the general law, viz., that a landlord can recover possession only after the lease is determined. In so far as this precise point is concerned, we think Section 12 stands on the same footing as Section 13 of the Rent Act because whereas Section 12 says that a landlord can evict in case the tenant is in arrears of rent, but subject only to the procedure prescribed in Sub-sections (2) and (3), Section 13 says that a landlord can evict if he can satisfy the Court of the existence of any of the grounds specified in the various clauses of Section 13(1). In both cases the landlord becomes entitled to recover possession; if anything Section 12 opens with a restriction upon the landlord''s right to possession and it says that a landlord can sue for possession on the ground of non-payment of rent only in the circumstances stated in the sub-section. However, the provisions of Section 12 as of Section 13 which unlike the landlord to recover possession do not do away with the obligation cast upon him by the general law, viz., the Transfer of Property Act, to determine the lease, and they do not abrogate the corresponding provisions of the Transfer of Property Act. We have considered this question at length in our judgment in the abovesaid revision application, and we do not think it necessary to reiterate those grounds. In our opinion the considerations which apply to a suit falling u/s 13 of the Rent Act also apply to a case falling u/s 12 of the Act, and in accordance with the judgment we hold that the tenancy must be determined by a notice u/s 111(g), Transfer of Property Act and conforming with the requirements of Section 106 of the said Act.

However the lease in the present case is of a date anterior to the application of the Transfer of Property Act to the territory comprised in the former Bhavnager State. We. have held in the said judgment that to such a lease the provisions of the Transfer of Property Act will not apply and that it will not be necessary for the landlord to do an overt act showing his intention to determine the lease nor to give a notice to determine it and that the suit itself should be taken as sufficient to prove the landlord''s intention to determine the lease. These principles govern the present case also. Besides the Plaintiff has here given a fifteen days'' notice which is quite reasonable, and the Plaintiff has thereby clearly expressed, before instituting the suit, her intention to determine the lease.

The result therefore is that she is entitled to recover possession of the premises in suit on the ground of non-payment of rent. We therefore confirm the decree of the learned District Judge and direct that the Appellant shall hand over possession on or before 15-11-1952. The Appellant to bear the Respondent''s costs of the appeal and to bear his own.

Baxi, J.

I agree.