Bhaiya Punjalal Bhagwanddin Vs. Dave
Bhagwatprasad Prabhu Prasad  INSC 201 (4 May 1962)
04/05/1962 DAYAL, RAGHUBAR
DAYAL, RAGHUBAR KAPUR, J.L.
GUPTA, K.C. DAS
CITATION: 1963 AIR 120 1963 SCR (3) 312
CITATOR INFO :
RF 1964 SC1341 (9) F 1967 SC1078 (3) HO 1974
SC 818 (15,26) F 1977 SC 740 (10) O 1979 SC1745 (11,15)
Rent Control--Ejectment for non-payment of
arrears of rentDetermination of tenancy, whether necessary before filing of
suit--Notice to quit, validity of Tenancy, according to Indian
Calendar--Whether converted to one under British Calendar--Belief against
forfeiture--Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 (Bom.
LVII of 1947) s. 12(3) (a).
The appellant was a tenant of the respondents
in respect of certain residential premises. The tenancy was by the Indian
Calendar. The appellant did not pay arrears of rent for about 5 years and the
landlords gave him notice to quit as he was in arrears of rent for more than
six months and asked him to quit on the last day of the Indian month. On the
appellant's failure to comply the landlords filed a suit for ejectment under s.
12 (3) (a) of the Bombay Rents, Hotel and Lodging House Rates Control Act,
1947. Within two months of the institution of the suit the appellant deposited
the arrears of rent. The suit for ejectment was decreed. The appellant
contended that in view of s. 27 of the Act and r.
4 the tenancy was deemed to be by the British
Calendar and the notice to quit expiring with the end of the Indian month was
invalid and that he should have been relieved against forfeiture. The landlords
contended that no notice to quit was necessary for filing the suit, that the
notice given was valid and that there could be no relief against forfeiture.
Held, that the suit for ejectment was rightly
it was incumbent upon the landlords to
determine the contractual tenancy by a proper notice before they could file a
suit for the ejectment of the tenant on the ground of non. payment of arrears
under s. 12(3) (a) of the Act. The Act did not create a new right in the
landlord to evict the tenant for nonpayment of rent; the right to evict was
dependent upon a proper termination of the tenancy. The Act gave extra
protection to the tenant which he could avail of after his tenancy was
determined. There was nothing in s. 12 of the Act which overrode the provisions
of the transfer of Property Act. The right to possession had to be
distinguished from 313 the right to recover possession. The right to possession
arose on the determination of the tenancy and the right to recover possession
arose under the Act after the right to possession had arisen.
Dr. K.A. Dhairyawan, v. J.R. Thakur, 
S.C.R. 799, Baghubir Narayan Lotlikar v. Fernandiz, (1952) Bom. L.R.
505, Karsandas v. Karsanji, A.I.R. (1953)
Sau. 113, Meghji Lakhamahi v. Furniture Workshop, (1954) A.C. 80 and Ebner v. Lascelles,
(1928) 2 K.B. 486, referred to.
Bai Brij Bai Krishna v. S.K. Shaw and Bros.
145 and Shri Hem Chand v. Shrimati Sham Devi,
I.L.R. 1955) Punj. 36, distinguished.
The notice to quit was a valid notice. The
original tenancy was according to the Indian Calendar and there was nothing in
s. 27 of the Act or in r.4 which converted it into a tenancy according to the
British Calendar. Section 27 and r. 4 merely provided for the recoverability of
rent according to the British Calendar.
In view of the provisions of s. 12 there
could be no relief against forfeiture in the present case. Section 12(3)(a)
empowered the court to pass a decree for eviction in case of rent payable month
by month if the arrears of rent had been for a period of six months and the
tenant had neglected to make the payment within a month of the service of the
notice of demand. The payment of arrears after institution of the suit did not
affect his liability to eviction and the court's power to pass the decree. The
Court was bound to pass the decree when the requirements of the section were
satisfied where the' legislature intended to give relief against forfeiture it made
a specific provision.
CIVIL APPELLATE JURISDICTION: Civil Appeal
No. 209 of 1962.
Appeal by special leave from the judgment and
order dated October 10, 1961, of the Gujarat High Court in Civil Revision
Application No. 378 of 1960.
R. Ganapathy Iyer, B.R.G.K. Achar and K.L,
Hathi, for the appellant.
M. S. K. Sastri and M. S. Narasimhan, for
314 1962. May 4. The judgment of the Court
was delivered by RAGHUBAR DAYAL, J.-This appeal, by special, leave, is against
the judgment and decree of the High Court of Gujarat.
The appellant was a tenant of certain
residential premises situate at Anand, and belonging to the respondentslandlords.
Under a contract between the parties, he held them at Rs. 75/per mensem
according to Indian Calendar.
In 1951 the appellant applied for fixation of
On March 31, 1954, the standard rent was
fixed at Us. 25/.
per mensem. The appellant did not pay the
arrears of rent from July 27, 1949, to July 5, 1954. On October 16, 1954, the
landlords gave him notice to quit the premises stating therein 'that rent for
over six months was in arrears and that he was to quit on the last day of the
month of tenancy which was Kartak Vad 30 of Samvat Year 2011. The appellant
neither paid the arrears of rent nor vacated the premises.
(in December 16, 1954, the respondents filed
the suit for ejectment basing their claim for ejectment on the provisions of s.
12(3) (a) of the Bombay Rents, Hotel and Lodging House rates Control Act, 1947
(Bom. LVII of 1947), hereinafter called the Act.
Within two months of the institution of the
suit, the appellant deposited an account of Rs. 1,075/in Court, towards arrears
of rent and, with the permission of the Court, the respondents withdrew a sum
of Rs. 900/which was the amount due for arrears up to that time. The Trial
Court decreed the suit for ejectment together with arrears of rent for three
years and costs. An appeal against the decree for ejectment was dismissed by
the appellate Court.
The revision to the High Court was also unsuccessful,
and, it is 315 against the order in revision that this appeal has been
Four points were urged before the High Court:
(1) That the month of tenancy was not by the Indian Calendar, but was by the
British Calendar and that the Courts below had ignored evidence in that regard.
(2) Assuming that the month of tenancy was by the Indian Calendar according to
the lease, it would be deemed to be by the British Calendar in view of the
provision of s. 27 of the Act. (3) As the arrears of rent had been paid within
two months of the institution of the suit, the appellant be deemed to be ready
and willing to pay the rent and that therefore the landlord was not entitled to
recover possession of the premises. (4) It is discretionary with the Court to
pass a decree for ejectment in a. case under s. 12(3) (a) of the Act, as the
expression, used in that sub-clause is 'the Court may pass a decree for
eviction in any such suit for recovery of possession.' The High Court held that
the findings of the Courts below that the month of tenancy was by the Indian
Calendar was based on a consideration of the evidence on the record and
therefore was binding. It also held that it could not be deemed to be by the
British Calendar in view of s. 27 of the Act which provided that the rent would
be recovered according to the British Calendar, notwithstanding anything
contained in any contract and did not provide for the tenancy to be by the
month according to the British Calendar even if the tenancy under the Contract was
by a different Calendar. The High Court also held that the tenant's depositing
arrears of rent within two months of the institution of the suit would not
justify holding that the tenant was ready and willing to pay the amount of
standard rent and that therefore the .landlord was not entitled to recover
possession 316 of the premises in view of sub-s.(1) of s. 12 of the Act.
Lastly, the High Court held that the Court is
bound to pass a decree for ejectment under s. 12 (3) (a) if it be proved that
the rent was payable by the month, that' it had been in arrears for a period of
six months and that the tenant failed to make payment of the arrears until the
expiration of the period of one month after the service of notice referred to
in sub.s. (2) of that section., As a result, the revision was dismissed.
Two points have been urged for the appellant
in this Court.
One is that the month of the tenancy was to
be by the British Calender in view of s. 2 7 of the Act and r. 4 framed there
under, and that there could be no forfeiture of the tenancy when the arrears of
rent had been paid within two months of the institution of the suit.
The significance of the first question is
that if the appellant's tenancy was to be by the month of the British Calendar,
notice to quit was a bad notice as it did not comply with the requirements of
s.106 of the Transfer of Property Act and that therefore there had been no
determination of the tenancy which is a condition precedent for the landlord
being entitled to possession and, coin. sequently, for instituting a suit for
ejectment on any ground whatsoever, including the ground of rent being in
The first point to determine, therefore, is
whether it is a condition precedent for the institution of a suit by a landlord
for the recovery of possession from a tenant who has been in arrears of rent
that there had been first a determination of the contractual tenancy. If it is
not a condition precedent; it will not be necessary to determine whether the
month of the tanancy continued to be according to the Indian Calendar according
to the contract, or had been according to the British 317 Calendar in view of
a. 27 of the Act, when a tenancy is created under a contract between the
landlord and the tenant, that contract must hold good and continue to be in
force till, according to law or according to the terms of contract, it comes to
an end. Section III of the Transfer of Property Act states the various
circumstances in which a lease of immovable property determines. Clause (b) provides
for the determination of the lease on the expiration of a notice to determine
the lease, or to quit, or of intention to quit, the property leased, duly given
by one party to the other. There is nothing in the act which would give a right
to the landlord to determine the tenancy and thereby to got the right to( evict
the tenant and recover possession. This Act was enacted for the purpose of
controlling the rents and repair of certain premises and of evictions due to
the tendency of landlords to take advantage of the extreme scarcity of premises
compared to the demand for them. The Act intended therefore to restrict the
rights which the landlords possessed either for charging excessive rents or
for. evicting tenants. A tenant stood in no need of protection against eviction
by the landlord so long as he had the necessary protection under the terms of
the contract between him and the landlord. He could not be evicted till his
tenancy was determined according to law and therefore there was no necessity
for providing any further protection in the Act against his eviction so long as
his tenancy continued to exist under the contract.
Sub-section(1) of s. 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
318 provisions of the Act. It creates a restriction on the landlords 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 had 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 a. III 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 landlords 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 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-s.1 requires of him. The landlord is
restrictedfrom evicting the tenant till the tenant does not do what he is
required to do for peaceful possession under sub s.(1) of s. 12. We are
therefore of opinion that where a tenant is in possession under a lease from
the landlord, he is not to be evicted for a cause which would give rise to a
suit for recovery of possession under s.12 if his 'tenancy has not been
determined already. It follows that whenever a tenant acts in a way which would
remove the bar on the landlord's right to evict him it is necessary for the
landlord to serve him with. a notice 319 determining his tenancy and also serve
him with a notice under sub-s.(2) of s. 12 of the Act.
In this connection reference may be made to
what wag stated in Dr. K. A. Dhairyawan v. J. R. Thakur .(1). In that case, the
landlord granted a lease of a parcel of land to the lessees for a certain
period. The lessee was to construct a building on that land. On the termination
of the lease, the lessees were to surrender and yield up the demised promises
including the building to the lessors. After the expiry of the period of the
lease, the lessor sued for a declaration that they were entitled to the
building and were entitled to claim possession of the same. The lessees pleaded
that they were also lessees of the building and were protected from eviction there
from by the provisions of the Bombay Rents, Hotel and lodging House Control
Act, 1947, and that the covenant for delivering possession of that building
could not be enforced as the lease in respect of the land could not be
terminated on account of the protection given by the Act. It was held that
under the lease there was a demise only of the land and not of the building,
and, consequently, the provisions of the Act dit not apply to the contractof
delivery of possession of the building. It was contended that even in such a
case, possession of the building could not be given until the lease bad been
determined, which in law, could not be determined so long as the respondents
could not be evicted from the demised land of which they were tenants within
the meaning of the Act. This contention was repelled. It was said at p. 808:
"This contention is without force as the
provisions of the Act do not provide for the continuation of a lease beyond the
specified period stated therein. All that the Act does is to give to the person
who continues to (1)  S.C.R. 799.
320 remain in possession of the land,
although the period of the lease had come to an end, the status of a statutory
tenant. That is to say, although the lease had come to an end but the lessee
continued to remain in possession without the consent of the lessor, he would
nonetheless be a tenant of the land and could not be evicted save as provided
by the Act." This means that the provisions of the Act did not affect the
terms of the lease according to which the lease came to an end after the expiry
of the period for which it was given.
The lessee's possession after the expiry of
the lease was by virtue of the provisions of the Act and not by virtue of the
extension of the period of the lease. It is a necessary consequence of this
view that the restriction on the landlord's right to recover possession under s.
12 of the Act operates after he has determined the tenancy and that till then
the rights between the parties with respect to eviction would be governed by
the Ordinary law.
It was said in Ragbubir Narayan Lotlikar v.
(Bom. Rents, Hotel and Lodging House Rates
Control Act (Bom Act LVII of 1947): ,,'In our opinion, s.28 applies only to
those suits between a landlord and a tenant where a landlord has become
entitled to possession or recovery of the premises demised. Under the Transfer
of Property Act a landlord becomes entitled to possession when there is a
determination of tenancy. A tenancy can be determined in any of the modes laid
down in s. 111; and once the tenancy is determined, under s.108 (q) the lessee
is bound to put the lessor into possession of the property. It (1) (1952) 54
Bom. L.R. 505, 511.
321 is, therefore, only on the determination
of the lease or the tenancy that the landlord becomes entitled to the
possession of the property, and when he has so becomes entitled to possession,
if he files a suit for a decree for possession, then s. 28 applies and such a
suit can only be filed in the Small Causes Court." Again it was said at
the same page:
"Section 12 postulates the fact that
landlord is entitled to recovery of possession and he is only entitled to
possession under the provisions of the Transfer of Property Act.
It is only when he so becomes entitled that
the Legislature steps in and prevents the enforcement of his right by the
protection which it gives to the tenant. No question of the application of s.
12 can arise if a landlord is not entitled to possession at all." A
similar view was expressed in Karsandas v. Karsanji (1) It was said:
"...that a tenancy must be duly
determined either by a notice to quit or by efflux of time or under one or the
other of the clauses of s. III, T. P, Act before a landlord can one to, evict
his tenant on any of the grounds contained in the clauses of s-13 (1) of the
Bombay Rent Act as applied to Saurashtra.
Therefore a notice determining the tenancy
and calling upon the tenant to quit was in this case a necessary prerequisite
to the institution of the suit." The cases reported as Rai Brij Raj
Krishna v. S. K. Shaw and Brothers (2) and Shri Hem Chand v. Shrimati Sham Devi
(3) are distinguishable. In, the former case, s.11 of the Bihar Buildings (1)
A.I.R. (1953) Sau. 113, 118. (2)  S.C.R. 145,150.
(3) I.L.R. (1955) Punj. 36.
322 (Lease, Rent and Eviction) Control Act,
1947, (III of 1947), came for interpretation by this Court and, in that
connection it was said "Section II beings with the words 'Not withstanding
anything contained in any agreement or law to the contrary', and hence any
attempt to import the provisions relating to the law of transfer of property
for the interpretation of the section would seem to be out of place. Section 11
is a self-contained section, and it is wholly unnecessary to g o outside the
Act for determining whether a tenant is liable to be evicted or not, and under
what conditions he can be evicted. It clearly provides that a tenant is not
liable to be evicted except on certain conditions, and one of the conditions
laid down for the eviction of a month to month tenant is nonpayment of
rent." In the present case, s. 12 of the Act is differently worded and
cannot therefore be said to be a complete Code in itself. There is nothing in
it which overrides the provisions of the Transfer of Property Act.
Shri Hem Chand's Case (1) dealt with the
provisions of s.13(i) of the Delhi and Ajmer Merwara Rent Control Act XXXVIII
of 1952. This section provided that no decree or order for the recovery of
possession of any promises shall be passed by any court in favour of the
landlord against a tenant, notwithstanding anything to the contrary contained
in any other law or any contract. It was held that the Rent Control Act
provided the procedure for obtaining the relief of ejectment and that being so
the provisions of s.
106 of the Transfer of property Act had no
relevance, in considering an application for ejectment (1) I.L.R. (1955) Punj
323 made under that Act. There is nothing in
the Act corresponding to the provisions of s. 13(1) of the Delhi Ajmer Merwara
Act. It is unnecessary for us to consider whether Shri Hem Chand's case was
rightly decided or not.
In Meghji Lakhamahi and Brothers V. Furniture
Workshop (2) the Privy Council dealt with an application for possession under
s. 16 of the Increase of rent (Restriction) Ordinance, No. 23 of 1949 (Kenya)
whose relevant portion is :
"(1) No order for the recovery of
possession of any premises to which this Ordinance applies, or for the
ejectment of a tenant therefrom, shall be made unless ... (k) the landlord
requires possession of the premises to enables the reconstruction or rebuilding
thereof to be carried out..." It was said :
"In the present case the only question
is whether section 16(i) (k) is so framed as to envisage or make provision for
such an order.
An application for possession under section
16 presupposes that the contractual tenancy of the demised premises has been
determined. It is not possible to determine it as to part and keep it in being
as to the remainder. In the present case the tenancy of the entire demised
premises had been determined." The right to possession is to be. distinguished
from the right to recover possession. The right to possession arises when the
tenancy is determined. The right to recover possession follows the right to
possession, and arises when the person in possession does not make over (1)
I.L.R. (1955) Punj. (2) (1954) A.C. 80,90.
324 possession as he is bound to do under
law, and there arises a necessity to recover possession through Court. The
cause of action for going to Court to recover possession arises on the refusal
of the person in possession, with no right to possess, to deliver possession.
In this context, it is clear that the provisions of s. 12 deal with the stage
of the recovery of possession and not, with the stages prior to it and that
they come into play only when the tenancy is determined and a right to
possession has come in existence.
Of course, if there is not contractual
tenancy and a person is deemed to be a tenant only on account of a statute
giving him right to remain in possession, the right to possession arises on the
person in possession acting in a manner which, according to the statute, gives
the landlord right to recover possession, and no question for the determination
of the tenancy arises, as really speaking, there was no tenancy in the ordinary
sense of that expression. It is for the sake of convenience that the right to
possession, by virtue of the provisions of a statute, has been referred to as
In Ebner v. Lascelles (1) It was said,
dealing with the provisions of Increase of Rent and Mortgage Interest
(Restrictions) Act, 1920 (10 and 11 Geo. 5, c. 17) :
"It has been truly said that the main
rights conceded to a tenant under these Acts are, first a right to hold over or
'status of irremovability,' and, next, a right not to have his rent unduly
raised. The right to hold over is a right that comes into existence after the
expiration of the contractual tenancy. During the contractual tenancy the
tenant, being in possession under the protection of his contract, has no need
of the protection of the Act to enable him to retain possession, but (1) (1928)
2 K.B. 486,497.
325 during that tenancy the Act protects him
in regard to rent by providing that, notwithstanding any other agreements which
he may make with his landlord as to rent, he is not to be charged a higher rent
than the law allows, and if he is charged a higher rent than that he can have
it reduced. The right to hold over after the termination of the contractual
tenancy. and the right to protection during the contractual tenancy are two
right s which must be kept distinct from each other." It may be mentioned
that s. 5 of the aforesaid Act of 1920 provided that no order or judgment for
the recovery of possession of any dwelling house to which the Act applied or
for the ejectment of a tenant there from would be made or given unless the case
fell within one of the clauses mentioned in sub. s.(1).
We are therefore of opinion that so long as
the contractual tenancy continues, a landlord cannot sue for the recovery of
possession even if s.12 of the Act does not bar the institution of such a suit,
and that in order to take advantage of this provision of the Act he must first
determine the tenancy in accordance with the provisions of the Transfer of
It is now necessary to determine whether a
notice served on the appellant to quit the tenancy on October 16, 1954, the
last date of the month according to the Hindu Calendar, as October 16 happened
to be Kartik Vad 30 of S. Y. 2011, the tenancy having commenced from Kartik Sud
1 of S.Y. 1963. It is not disputed that originally the tenancy was according to
the Hindu Calendar. The contention for the appellant is that this month to
month tenancy, according to the Hindu Calendar, was 326 converted to a similar
tenancy according to the British Calendar in view of the provisions of s.27 of
the Act and r.
4 of the Rules framed under the Act.
Section 27 of the Act reads:
"(1) Notwithstanding anything contained
in any law for the time being in force or any contract, custom or local usage
to the contrary, rent payable by the month or year or portion of a year shall
be recovered according to the British Calendar.
(2) The State Government may prescribe the
manner in which rent recoverable according to any other calendar before the
coming into operation of this Act shall be calculated and charged in terms of
the British Calendar." Rule 4 of the Bombay Rents, Hotel and Lodging House
hates Control Rules, 1948, hereinafter called the Rules, reads:
"Calculation of rent according to
British Calender.-If, before the Act comes into force, the rent in respect of
any premises was chargeable according to a calendar other than the British
Calendar, the landlord shall recover from the tenant rent for the broken period
of the month, year or portion of the year immediately preceding the date on
which the Act comes into force, proportionate amount according to the aforesaid
Calendar month, year or portion of the year at which the rent was then
chargeable. After such date the landlord shall recover rent according to the
British Calendar. The rent chargeable per month according to the British 327
Calendar shall not exceed the rent which was chargeable per month according to
the other calendar followed immediately before such date." There is
nothing irk the aforesaid rule or-the section about the conversion of the month
of the tenancy from the month according to the Hindu calendar to the month
according to the British Calendar. They only provide for the recoverability of
the rent according to the British Calendar. Since the enforcement of the Act on
February 13, 1948, the monthly rent would be for the month according to the
British Calendar. The monthly rent could be recovered after the expiry of a
month from that date or the rent for the period from the 13th February to the
end of the month could be recovered at the monthly rate and thereafter after
the expiry of each Calendar month. There is nothing in the section or the rule
in regard to the date from which the month for recovery of rent should
commence. This provision was made probably, as a corollary, to the statute
providing for standard rents. Standard rents necessitate standard months. There
are a number of calendars in use in this country. The Hindus themselves use
several calendars. The Muslims use a different one. Some calendars are used for
particular purposes. It appears to be for the sake of uniformity and
standardisation that a common calendar was to govern the period of the month of
the tenancy and the date for the recovery of the rent. Rule 4 provided a
procedure for adjustment of the recovery of the rent according to a calendar
other than the British Calendar, and further provided that the rent chargeable
per month, according to the British Calender, would not exceed the rent which
was chargeable per month according to the other calendar followed immediately
before that date. In the absence of any specific provision in the Act with
respect to any alteration to be made in the period of the month of the 328
tenancy, it cannot be held merely on the basis of an alteration in the period
for the recovery of rent that the monthly period of tenancy had also been
changed. The tenancy can be from month to month and the recoverability of the
rent may not be from month to month and may, under the contract, be based on
any period say, a quarter or half year or a year. There is nothing in law to
make the month for the period of recovering rent synchronize with the period of
the month of the tenancy. The tenancy must start on a particular date, and,
consequently, its month would be the month from that date, according to the
The month of tenancy according to that
calender are settled by contract from the commencement of, the tenancy. The
tenancy under a lease for a certain period starts from a certain date, be it
according to the British Calendar or any other Calendar. The period of, lease.
and consequently the tenancy, comes to an end at the expiry of that period
according to the calendar followed by the parties in fixing the commencement of
the tenancy. A lease, even according to the British Calendar, can start from
any intermediate date of the calendar month. There is nothing in s. 27 to
indicate that the month of the tenancy to such a lease will start from the
first of a regular month. Section 27 simply states that the rent would be
recovered according to the British Calendar without fixing the first date of
the month as the date from which the month, for the purposes of the recovery of
the rent, would be counted. It follows that the month of the tenancy which
commences on the 14th of a month, would be from the 14th to the 13th of the
next month, according to the British Calendar. The rent would be recoverable
with respect .to this period of a month. No interference with any such term of
the contract has been made by any provision of the Act and therefore we hold
that the provisions of s. 27 of the Act and r. 4 of 329 the Rules, do not in
any way convert the month of the tenancy according to the Indian Calendar to
the month of the British Calendar.
The High court said in his judgment that Mr.
Parghi, who was appearing for the appellant, was unable to cite any decision in
support of the contention raised by him. Our attention, however, has been drawn
to two cases decided by the Bombay High Court. They are Civil Revision Applications
Nos. 247 of 1956 and 1583 of 1960 decided by Dixit and Tendolkar, JJ and
Patwardban J., on February 22, 1957, and August 16, 1961, respectively. The
latter decision had to follow the earlier one. In the earlier case, the notice
to quit required the tenant to give possession on May 1, 1953. The tenancy had
commenced according to the Hindu Calendar. The notice was given according to
the British Calendar. The High Court held the notice to be valid, agreeing with
the contention that ..the effect of the provisions of a. 27 of the Act was lo
make the tenancy which was originally according to the Hindu Calendar, a
tenancy according to the British Calendar. The ratio of the decision, in the
words of the learned Judges, is :
"Now rent is payable for occupation by
the defendant and therefore, the tenancy must be deemed to be one according to
the British Calendar from the first of the month to the end of the
month..................... Here is a local law which by section 27 makes the
tenancy as one according to the British Calendar".
We are of opinion thatthis view is wrong. We,
therefore, hold that the notice to quit issued to the appellant was therefore a
valid notice as held by the Court below and determined the tenancy of the
330 The second contention that, the
appellant's having paid the arrears of rent within 2 months of the institution
of the suit, there would be no forfeiture of the tenancy has no force in view
of the provisions of s. 12 of the Act. Subsection (2) permits the landlord to
institute a, suit for the eviction of a tenant on the ground of non-payment of
rent after the expiration of one month from the service of the notice demanding
the arrears of rent, and cl. (a) of sub-s.(3) empowers the Court to Pass a
decree in case the rent had been payable by the month, there was no dispute
about the amount of standard rent, the arrears of rent, had been for a period
of six months and the tenant had neglected to make the payment within a month
of the service of the notice of demand. The tenant's paying the arrears of rent
after the institution of the suit therefore does not affect his liability to
eviction and the Court's power to pass a decree for eviction. It is true that
the expression used in el. (a) of sub-s.(3) is 'the Court may pass a decree for
eviction in any such suit for recovery of possession', but this does not mean
as contended for the appellant, that the Court has discretion to pass or not to
pass a decree for eviction in case the other conditions mentioned in that
clause are satisfied. The landlord became entitled to recover possession when
the tenant failed to pay rent and this right in him is not taken away by any
other provision in the Act. The Court is therefore bound in law to pass the
decree when the requirements of sub-s-(2) of s.12 are satisfied. This is also
clear from a comparison of the language used in cl. (a) with the language used
in cl. (b) of sub-s. (3) which deals with a suit for eviction which does not
come within cl.(a) and provides that no decree for eviction shall be passed in
such a suit if on the first day of hearing of the suit or on or before such
other date as the Court may fix, the tenant pays or tenders in Court the 331
standard rent then due and thereafter continues to pay or tender in Court
regularly such rent till the suit is finally decided and also pays costs of the
suit as directed by the Court. It is clear that where the legislature intended
to give some benefit to the tenant on account of the payment of the arrears
during the pendency of the suit, it made a specific provision. In the
circumstances, we are of opinion that the Court has no discretion and has to
pass a decree for eviction if the other conditions of sub.s. (2) of s. 12 of
the Act are satisfied.
The result therefore is that this appeal fails,
and is accordingly dismissed with costs.