Kusum Agarwalla vs Biswabhusan Bose

Banerjee, J.—This appeal at the instance of the Defendant arises out a suit for eviction on the ground of default in payment of rents and forfeiture of tenancy. The Plaintiffs are the landlord of premises No. 3 Asoke Road, Calcutta-27. The said premises formed part of the estate of late Sribhusan Bose. The Plaintiff No. 2 and one Sri Promode Kumar Ray Chowdhury were the Executors to the estate of the said deceased by virtue of their appointment as such by the last Will and Testament of the said deceased dated February 23, 1962, Probate was obtained by the Executors in August 1966 from this Court. As such Executors, the Plaintiff No. 2 and the said Sri Promode Kumar Ray Chowdhury were in possession, control and management of the said property being premises No. 3. Asoke Road, Calcutta-27. By and under an Indenture of Lease executed and registered by and between the Plaintiff No. 2 and the said Sri Promode Kumar Ray Chowdhury as such Executors as aforesaid of the one part and the Defendant of the other part, the Executors demised, granted and let out to and in favour of the Defendant nine rooms, two covered verandahs, two bath-rooms, kitchens, pantry courtyard, one garage, common passage and entrance together with all fixtures, electric installations, sanitary and water fittings and all other appurtenances whatsoever attached thereto, all situate at and lying on the ground-floor of the said building and premises being premises No. 3, Asoke Road, Calcutta-27. The said lease was for 7 years commencing from January 1, 1966. The Defendant was to pay to the said Executors the rent of Rs. 1,200 per month and the Defendant also would pay to the Executors Rs. 100 as service charges, Rs. 25 as lighting charges, Rs. 25 as water charges arid Rs. 150 as for durwan per month. The total sum of Rs. 1,500 constitutes rent which the Defendant was to pay per month to the Plaintiffs in terms of the said lease. The said monthly rent as also all the other charges would be payable in advance by the Defendant to the said Executors. It was further agreed by the Defendant by and under the said Indenture of Lease to pay the said monthly rent service and other charges on the day and in the manner as aforesaid without any deduction or abatement whatsoever, to keep and maintain at her own costs and expenses the demised premises including the floorings, doors, windows etc. in good and tenantable repair and condition and to replace such of the said articles as will be damaged by the negligence and not to call upon the said Executors to effect any such repairs. Once in every 3 years from the date of commencement of this lease to paint in a workmanlike manner with two coats of good paint such parts of the demised premises and limewash, whitewash, whiten and colour such of the walls and other parts of the demised premises as have here to before usually been painted, plastered, washed and whitened and not to make any additions or alterations to the demised premises or any part thereof or to the fixtures and fittings except with the previous permission of the said Executors in writings. It is further provided in the said lease that if the monthly rent, services and other charges or any part thereof should be in arrear and remain unpaid for 90 days after the day on which the same is to be paid as aforesaid or in case of default made in the observance or performance of any of the covenants and conditions on the part of the Defendant, hereinbefore stated, then and in any of the said cases it would be lawful for the said Executors to enter upon the demised premises or any part thereof in the name of the whole and to repossess and enjoy the demised premises together with all fixtures, fittings, articles etc. In or about June 1969 the Executors wrote to the Defendant saying that the Defendant may attorn her tenancy in favour of the Plaintiffs. On the basis thereof since June 1969 the Defendant was paying rent etc to the Plaintiff, but since the month of September 1969 the Defendant wrongfully failed and neglected to pay rent, service and other charges arid to keep and maintain at her own costs and expenses the said premises including the flooring doors, windows, etc. The Defendant also failed to paint or cause to be painted in a Workmanlike manner. This is in breach of Clause 2(iv) of the said Indenture of Lease. It is further alleged that the Defendant has wrongfully constructed a bath-room inside the courtyard on the northern side of the demised premises and made additions and/or alterations to the demised premises without the previous permission in writing from the said Executors or the Plaintiffs. In view of the expressed breach of the lease, the Plaintiff it is alleged, has right to re-enter upon the demised premises and the Plaintiffs became entitled to determine the said lease, It is alleged that by a notice dated January 28, 1939, given by the Plaintiffs through their Solicitors to the Defendants, the Plaintiffs determined the said lease. The same notice was sent by registered post and also under certificate of posting. The Defendant received the said notice sent to her under the registered post and also under certificate of posting on or about January 29, 1970. The Defendant not having vacated the premises, the Plaintiff filed the present suit for eviction.

The Defendant filed written statement and challenged that the service charges sought to be realised are not to be payable. None of the services as alleged therein was ever provided by the Plaintiff to the Defendant and the sweeper charges, electric charges etc. are being paid separately by the Defendant. It is alleged that the Defendant does not consume any electricity from the meter of the Plaintiffs but she has her separate meter and charges for consumption are being paid by the Defendant directly to the Calcutta Electric Supply Corporation Ltd. It is further stated that the Plaintiff has realised Rs. 13.200 as service charges illegally from January 1966 till August 1969. It is also alleged that the rent is Rs. 1,200 and not Rs. 1,500 as stated. It is stated that the Defendant has always taken all possible steps to keep and maintain the premises including the furniture and fixtures provided therein in tenantable repairs but the construction of the building is so (sic) bad and there are inherent vices with the result that the effect of the repairs is washed away rapidly. It is further stated that the Plaintiffs landlords are bound to keep and maintain the premises in habitable condition and/or to carry out all necessary and essential repairs under the provision of the West Bengal Premises Tenancy Act, 1956. The Plaintiffs have failed and neglected to keep the premises in habitable condition though the Plaintiffs are under such a legal obligation It is stated that the suit is defective and the plaint does not even set out the schedule of the property of which khas possession is sought to be recovered, The Defendant denied that she has committed breach of Clauses 2(i), 2(iv), 2(vi), 2(v) and 2(ii) of the said Indenture of Lease. It is stated that the Defendant is protected u/s 114(A) of the Transfer of Property Act and the Plaintiff is not entitled to the possession of the premises in question. The Defendant denied the notice of ejectment and denied further that she has committed breach of clause of M.O.P. of Section 108 of the Transfer of Property Act. On these pleadings the parties came to trial.

The suit was filed on March 18, 1970. The Defendant entered appearance and filed an application for time to file the written statements. The Defendant filed application u/s 17 read with Section 17(2)(A) of the West Bengal Premises Tenancy Act raising dispute about the quantum of rents as also the rate of rents and prayed for an easy instalment. The Plaintiff filed objection to the said application wherein an order was passed by the Court below but without complying with the order, the Defendant filed an application in this Court under Article 227 of the Constitution of India.

Mr. Sen Gupta on behalf of the Appellant tenant contended, inter alia, that as no order finally determining the amount of rent was made, the order u/s 17(3) striking out the defence of the tenant Appellant is without jurisdiction and secondly, it is argued that even if there was a default the tenant is entitled to avoid the decree in view of Section 17 of the West. Bengal Premises Tenancy Act and thirdly, Mr. Sen Gupta argued that there was no valid determination of tenancy u/s 106 of the Transfer of Property Act and the notice determining the tenancy is bad as it is contrary to Section 114A of the Transfer of Property Act.

Mr. Ranjit Kumar Banerjee on behalf of the Respondent however contended that no notice u/s 106 of the Transfer of Property Act is necessary when the lease is determined u/s 111(g) read with Section 114 of the Transfer of Property Act. Mr. Banerjee contended that in the facts and circumstances of the case, Section 17(4) of the Premises Tenancy Act has no application. Before we deal with the question of notice, we dispose of the matter regarding the plea u/s 17(4) and u/s 17(3) of the West Bengal Premises Tenancy Act. In order to deal with the question it must be pointed out that on an application u/s 17(2) and Section 17(2A) by the Defendant Appellant an order was made by the learned Subordinate Judge directing the Defendant to deposit in the Court the arrears of rents from September 1969 to July 1970 at the rate of Rs. 1,500 per month together with statutory interest, within 15 days. Against that order, the Defendant Appellant came up to this Court in Revision and P.N. Mukherjee and A.K. Mukherjee JJ. fixed the amount of arrears at Rs. 18,000 and allowed the Petitioner to pay by instalment as contained in the order dated September 24, 1970, but unfortunately the Defendant Appellant did not pay the amount. Whereupon the Plaintiff Respondent made an application u/s 17(3) which was allowed and the defence against the delivery of possession was struck out. Against that order, the Defendant applied for stay of further proceeding of the suit on the ground that they would move the High Court and the Defendant was asked to deposit Rs. 8,000 in the Court below which having been deposited, the Plaintiff landlord withdrew the same. The suit was eventually heard on July 3, 1971 and by judgment dated July 21, 1971, the suit was decreed on contest. Thereafter the Plaintiff applied for stay of execution of the decree on the ground (sic) by the lower Court. Thereafter the Defendant filed the present appeal and applied for stay of the execution case. In the said application, order was made directing the Defendant to deposit all arrears of rents by instalment without prejudice to the rights and contentions of the parties. It is admitted that the deposit was made.

Mr. Sen Gupta on the basis of these facts contended that now that the deposits have been made and this would be deemed to be compliance with Section 17(2) and Section 17(2A) of the West Bengal Premises Tenancy Act and therefore order u/s 17(3) of the Act is not competent. In our opinion, Mr. Sen Gupta is not correct in his submission. The deposit was made under the order of the Court. While issuing a stay order pending the hearing of the appeal an order was made which was conditional stay order and not an order u/s 17(2) and (2A) of the West Bengal Premises Tenancy Act. On the other hand, when the order u/s 17(3) of the Act was made the Defendant came to this Court challenging the order and the order was made by this Court to made the deposit and the deposit was not made as directed. The Defendant failed to party out the order passed and as such, consequence of that default of payment u/s 17(2) and (2A) of the Act has attracted and u/s 17(3) the defence was struck out. Therefore, in our opinion, Mr. Sen Gupta is not correct in his submission that by depositing all the arrears of rents etc. under the order passed by this Court pending the hearing of the appeal against, the decree is an order u/s 17(2) and (2A) of the West Bengal Premises Tenancy Act. That is, in our opinion, an order under Order 41. Rule 5 of the CPC which provides that filing an appeal will not automatically stay the further proceeding. Under Order 41, Rule 5 the conditional order can be passed. Such order cannot be, in our opinion, an order u/s 17(2) or (2A) of the West Bengal Premises Tenancy Act.

In our opinion, in view of the facts of the present case, Section 17(4) of the West Bengal Premises Tenancy Act has no application because the tenant did not deposit the amount fixed by the Court on an application under Sections 17(2) and (2A) of the West Bengal Premises Tenancy Act. Moreover, no application u/s 17B of the West Bengal Premises Tenancy Act was made within the period of 60 days from such commencement of the West Bengal Premises Tenancy (Amendment) Act, 1969. For all these reasons, in our opinion, there is no merit in the contention of Mr. Sen Gupta. Mr. Sen Gupta referred to the cases Gour Dev Mukherjee Vs. Purnima Devi and Others, , Krity Basu Vs. Peary Mohan Sarkar and Another, . Nakul Chandra Mondal and Others Vs. Khuda Biswas alias Khuda Bux and Others, and Jamuna Prasad Chowrasia Vs. Kishorilal Poddar, . In support of his contention that the Defendant is entitled to avoid the decree under the law. In the case Gour Dev Mukherjee Vs. Purnima Devi and Others, the tenant deposited the arrears of rents u/s 17(2) of the West Bengal Premises Tenancy Act within the time allowed by the Court. In the present case though the Defendant was given time to deposit, the deposit was not admittedly made within the time allowed by the Court. The case Krity Basu Vs. Peary Mohan Sarkar and Another, does not also help Mr. Sen Gupta. In the said case it has been held that the order u/s 17(3) cannot be passed without passing an order u/s 17(2) of the West Bengal Premises Tenancy Act. In the present case admittedly the Court below while passing an order u/s 17(2) of the Act did not quantify the amount of arrears. Against the order the Defendant came to this Court and thereafter this Court by order quantified the arrears and directed the Defendant to pay by instalment which unfortunately the Defendant did not pay and therefore, the order u/s 17(3) was validly passed and cannot be challenged.

The next question for consideration is whether there was a determination of tenancy by a notice to quit u/s 106 of Transfer of Property Act read with Section 13(6) of the West Bengal Premises Tenancy Act. The notice determining the tenancy is Ex. 5. The relevant portion of Ex. 5 is in the following terms:

In the premises, you have committed breaches of express conditions of the said Indenture of Lease which provides, by clause d(iii) thereof that, on the breach of the said conditions it shall be lawful for the lessor to re-enter upon the demised premises or any part in the name of the whole and to re possess and enjoy the demised premises. Our clients hereby give notice in writing to you determining the said lease with immediate effect.

We also on behalf of our client, call upon you to remedy the breaches of the conditions of the said lease as specified above. Please take notice that in default of due compliance with the requisitions contained herein, our clients will after the expiry of the month of February 1970, institute appropriate suit or legal proceedings against you for recovery of possession of the said demised premises and also for recovery of arrears of rents and other charges as stated above. Please treat this notice as a notice under the provisions of the Transfer of Property Act, 1882, as also under the provisions of Section 13(6) of the West. Bengal Premises Tenancy Act, 1956.

The point for consideration is whether in a case coming within the meaning of Section 111(g) of the Transfer of Property Act notice determining the tenancy u/s 106 is at all required. In our opinion, the determination of lease can be made u/s 106 of the Act Section 106 provides that in the absence of a contract or local law or usage to the contrary, a lease of immovable property for agricultural or manufacturing purposes shall be deemed to be a lease from year to year, terminable on the part of either lessor or lessee by 6 months notice expiring with the end of a year of the tenancy and a lease of immovable property for any other purposes shall be deemed to be a lease from month to month, terminable on the part of either lessor or lessee by 15 days'' notice expiring with the end of a month of the tenancy. Lease can also be determined as is provided u/s 111 of the Transfer of Property Act, that is, in case of a lease for a fixed period by efflux of time limited thereby and other provision as contained in Section 111 including Section 111(g), that is by forfeiture. In respect of the forfeiture of lease for the violation of express condition Section 112, provides for waiver of forfeiture by acceptance,

There is no dispute between the parties on the question of law that under the West Bengal Premises Tenancy Act the notice of suit u/s 13(6) of the said Act, is, imperative. There is no further dispute that apart from the notice u/s 13(6) of the Act, the notice determining, the tenancy is also a must. In our opinion, after the judgment of the Special Bench in Jamuna Prasad Chowrasia v. A.L. Poddar Supra this proposition of law as stated above cannot be disputed. The dispute in the present case is whether the determination of tenancy is to be made by a notice u/s 106 or the lease is determinable under any of the provision mentioned in Section 111 of the Transfer of Property Act and further whether Section 3 of the West Bengal Premises Tenancy Act overrides the provision of the Transfer of Property Act. We will deal with the second question first. u/s 3 of the West Bengal Premises Tenancy Act it is made clear that in the case of tenancy created after 1948 for more than 16 years and before August 24, 1965 for more than 20 years, the West Bengal Premises Tenancy Act will not apply. In the present case we have already stated that the lease was for a term of 7 years and was duly registered by the parties and therefore Section 3 is not applicable to the lease in question or, in other words, Section 13 of the West Bengal Premises Tenancy Act in terms applies to the lease. We are concerned in the present case with Section 111 of the Transfer of Property Act which provides for determination of lease.

Mr. Sen Gupta, contended that in view of Section 3 of the West Bengal Premises Tenancy Act if the lease is for less than 20 years as in thus case, the lease must be determined u/s 106 of the Transfer of, Property Act, that is, by notice determining the tenancy as provided in the said section.

Mr. Banerjee however contended that in respect of the case coming u/s 111(a) to (g) of the Transfer of Property Act notice u/s 106 tit the Act is not at all required. Mr. Banerjee in support of his contention referred to Bhaiya Punjalal Bhagwanddin Vs. Dave Bhagwatprasad Prabhuprasad, . Mr. Banerjee further referred to the cases Pooran Chand Vs. Motilal and Others, and Dattonpant Gopalvarao Devakate Vs. Vithalrao Maruthirao Janagaval, in support of his contention. Mr. Sen Gupta however contended that all these cases referred to by Mr. Banerjee were one of determination of lease by efflux of time. Therefore, it is argued by Mr. Sen Gupta that as our case is one u/s 111(g) of the Act those cases cannot apply. On the other hand, Mr. Sen Gupta strongly relied upon the case Abdul Samad Bepari Vs. Manasha Charan Bakshi, and contended that the notice u/s 106 is imperative for determination of tenancy.

The case Punjalal v. Bhagwat prosad Supra is a suit for eviction of tenant on the ground of arrears of rents. Their Lordships were considering the effect of Section 12 of the Bombay Act (57 of 1947) It has been held in para. 9 as follows:

Sub-section (J) of Section 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 provisions of the Act. It creates a restriction on the landlord''s 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 has 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 Section 111 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 landlord''s 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 on 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-section (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-section (1) of Section 12. We are, therefore, of opinion that where a tenant is in possession under a leave from the landlord, he is not to be evicted for a cause which would give rise to a suit for recovery of possession u/s 12 if his tenancy has not been determined already. It follows that whenever a tenant acts in a way which removes the bar on the landlord''s right to evict him, it is necessary for the landlord to serve him with a notice determining his tenancy and also serve him with a notice under Sub-section (2) of Section 12 of the Act. The case Pooran Chand v. Motilal Supra is also a case of determination of tenancy. In para. 5 of the said judgment the Supreme Court stated as follows:

Bearing the view expressed by this Court in mind we shall proceed to consider whether the High Court had acted within its jurisdiction. The main question turns upon the construction of Section 13 of the Act. The material part of the section reads:

Notwithstanding anything to the contrary contained in any other law or any contract, no decree or order for the recovery of possession of any premises shall be passed by any Court in favour of the landlord against any tenant (including a tenant whose tenancy is terminated);

Provided that nothing in this sub-section shall apply to any suit of other proceeding for such recovery of possession if, the Court is satisfied:

(a) that the tenant has neither paid nor tendered the whole the arrears of rent due, within one month of the date on which a notice of demand for the arrear of rent has been served on him by the landlord in the manner provided by Section 106 of the Transfer of Property Act, 1882 (IV of 1882); or (b) that the tenant without obtaining the consent of the landlord in writing has, after the commencement of this Act, (i) sub-let, assigned or otherwise parted with the possession of the whole or any part of the premises....

Learned Counsel for the Appellant contends that the provisions of the said section are in additional protection to a tenant and that they do not enable the landlord to dispense with a statutory notice before filing a suit for eviction and in the present case the notice given did not comply with the provisions of Section 106 of the Transfer of Property Act, 1882. It is not necessary in this appeal to express our opinion on the validity of this contention, for we are satisfied that the term of the tenancy had expired by efflux of time and therefore, no question of statutory notice would arise. But the Learned Counsel contends that this point was not raised either in the plaint or in the lower Courts, but was raised for the first time before the High Court and that as the question is a mixed question of fact and law, the High Court went wrong in allowing it to be raised for the first time before it. We cannot say that this point was not raised in the plaint. The suit was filed for eviction and the ground for eviction was twofold, viz. the rent was not paid and that the Appellant had sublet the premises. In the plaint it was not stated that the tenancy was a monthly tenancy, on the other hand, the Respondents alleged in the plaint that, the Appellant was their tenant under the lease deed dated August 6, 1952 and they flied, along with the plaint, the said lease deed, the terms whereof clearly show that the term of the lease was for one year. The Appellant admitted these facts. It is, therefore, manifest that the Appellant never denied that the term of the lease was not for one year. The High Court was, therefore, justified in considering the point, because the validity of the notice depended upon the term of the tenancy and also because the question of the term of the tenancy depended solely on the construction of the lease deed. On the basis of the lease deed the High Court held that the term of the lease is only for one year and it had expired by efflux of time. The document says that the house had been taken on rent for one year by the lust party and ends thus, if the rent falls into arrears then the second party shall be jointly and severally entitled to eject me, namely, the first party before the expiry of the term of tenancy and realise the rent due. It is, therefore, manifest that the lease was for a period of one year and that it is not a monthly tenancy. As the term fixed under the deed had expired, the Appellant was not entitled to any statutory notice u/s 106 of the Transfer of Property Act, 1882. In the case Dattopant Gopalvarao Devakate v. Vitalrao Marutirao Supra (para. 1), the principle laid down by the Supreme Court is that no notice is required in respect of [termination of ?] tenancy by efflux of time. Mr. Sen Gupta wanted to distinguish the cases on the ground that there is no doubt the Supreme Court has held that in matters coming u/s 111(a) of the Transfer of Property Act, no notice for determination of tenancy u/s 106 is necessary but in so far as the forfeiture is concerned, this case has no authority at all. In our opinion, Mr. Sen Gupta''s contention cannot be accepted to be correct. It appears to us that the lease of immovable properly can be deter mined under any of the modes of Section 111 of the Transfer of Property Act In cases coming within the meaning of Section 111(h) of the Act, if it is a manufacturing lease, 13 months ''notice is required ending with the year of tenancy and in case of monthly lease 15 days'' notice ending with the month of tenancy is required. Even after the promulgation of the West Bengal Premises Tenancy Act, 1956, the determination of tenancy is provided u/s 111 of the Transfer of Property Act but unless a notice of suit u/s 13(6) of the West Bengal Premises Tenancy Act is issued no decree for eviction can be made. It appears to us that in the Special Bench judgment in Surya Properties Ltd. v. Bimalendu Nath Supra all the Hon''ble judges agreed that the condition precedent for the institution of a suit for ejectment against a tenant is firstly, a determination of the tenancy and secondly a notice of it u/s 13(6) of the West Bengal Premises Tenancy Act. Mr. Sen Gupta and Mr. Banerjee both relied on the case in support of their contentions. In our opinion, the said case only laid down the above principle but in the facts of the case it has been stated that notice u/s 106 of the Act determining the tenancy is absolutely necessary, including a notice of suit u/s 13 of the West Bengal Premises Tenancy Act. If we read between the lines it is clear that their Lordships held that the determination of the lease and the notice of suit must be given in order that the suit under the West Bengal Premises Tenancy Act can be sustained in the Court of law. We arc to see whether the lease of immovable property is determined by any provision of Section 111(a) to (h) of the Act. If it is found that the determination is made under any such provision and the terms of the said provision are complied with notice u/s 106 of the Transfer of Property Act, excepting in cases coming u/s 111(h), is not required for determining the tenancy. What is required under the West Bengal Premises Tenancy Act however will stand, that is, notice of suit u/s 13 of the West Bengal Premises Tenancy Act.

Mr. Sen Gupta referred to the cases reported in Abdul Gani Vs. Md. Israil and Others, , Gurudas Biswas Vs. Charu Panna Seal and Others, and AIR 1969 Cal. 40 in support of this contention. All these cases make it clear that the notice determining the tenancy as well as the notice of suit u/s 13(6) of the Act are required. There is no dispute about the proposition that in order to maintain a suit for eviction under the West Bengal Premises Tenancy Act, the determination of tenancy as well as the notice of suit are required. The only point between Mr. Banerjee and Mr. Gupta is whether the determination of tenancy u/s 106 of the Transfer of Property Act is required or not. We, however, are of the opinion, that a lease can be determined under any of the provisions of Section 111(a) to (h) of the Transfer of Property Act and if it is provided that the lease is determined u/s 111(a), (b), (c), (d), (e), (f) and (g) of the Act, then the determination of lease u/s 111(h) which brings in Section 106 of the Transfer of Property Act will not be required at all. After determination of tenancy u/s 111(a) to (g), further determination of tenancy cannot arise.

We now come to the last point whether the notice given is a valid one or not. While Mr. Sen Gupta contends that the notice is bad as no time has been given to remove the alleged violation entailing the forfeiture of the lease. Mr. Banerjee contended that the notice determining the tenancy provides for reasonable time for remedying the defect and as such the notice is a good notice u/s 111(g) read with Section 114A of the Transfer of Property Act. Mr. Sen Gupta relied upon the case Pravat Chandra v. Bengal Central Bank 42 C.W.N. 761 and contended that no reasonable time had been given. Mr. Banerjee referred to Thacharakavil Manavikraman Tirumalpad Raja Avergal Vs. Noor Mahomed Sait, and contended that in the facts of this case no notice was required u/s 106 in case of forfeiture of the lease. In our opinion, the case reported in Thacharakavil Manavikraman Tirumalpad Raja Avergal Vs. Noor Mahomed Sait, in terms cannot apply. It appears to us that the notice is a valid notice u/s 114A of the Transfer of Property Act. It has been made clear under the said section that there will be determination of tenancy, but reasonable time should be given to the lessee to remedy the defect which entails the forfeiture. In the present case the determination of tenancy and the time to remove the defect may be in the same notice. It has been held in Pravat Chandra v. Bengal Central Bank Supra (766) as follows:

Assuming that the Transfer of Property Act governs the lease in question, our view is that one written notice is required under the law and not one u/s 111(g) and another u/s 114(A) as contended for by Dr. Basak Section 111(g) requires a written notice on the part of the landlord to be served upon the tenant intimating his intention to forfeit the lease and Section 114(A)which was added to the Statute by the amendment of 1929 only defined the form in which that notice has to be given by the landlord. Section 114(A) contemplates two classes of cases, (i) where the breach is capable of remedy and (ii) where it is not. In cases where the breach is not capable of remedy, all that the law requires is that a written notice should be given by the landlord before suit, conveying his election of forfeiting the tenancy. But if the breach is one capable of remedy, it is further necessary that he should require the lessee to remedy the breach and must give to the lessee reasonable time to do so from the date of service of notice.

In this case applying the principles it appears to us that the conditions have been fulfilled and notice was given determining the tenancy and also the opportunity was given to the lessee to remedy the breach.

In that view of the matter, in our opinion, the notice determining the tenancy u/s 111(g) is valid one. As both the points fail, the appeal must, therefore, also fail. The judgment and decrees of the Court below are affirmed.

There will be no order as to costs.

The tenant will vacate the suit premises by three months from to-day.

The tenant will go on paying at the rate of Rs. 1,500 per month within the 15th of the next month. The must of such deposit must be made within March 15, 1977 and the last of such deposit must be made within the 15th of that month for which it falls due.

Sharma, J.

I agree.