Damadilal & Ors Vs. Parashram
& Ors [1976] INSC 148 (7 May 1976)
GUPTA, A.C.
GUPTA, A.C.
CHANDRACHUD, Y.V.
SARKARIA, RANJIT SINGH
CITATION: 1976 AIR 2229 1976 SCR 645 1976 SCC
(4) 855
CITATOR INFO :
R 1977 SC2262 (9) D 1979 SC1121 (7) R 1981
SC1956 (1) RF 1982 SC1043 (14,19) APR 1985 SC 796 (12,17,19,21,25,26,31,35) R
1987 SC 117 (50) D 1991 SC 899 (12) E&A 1991 SC2053 (16,17,18)
ACT:
Madhya Pradesh Accommodation Control Act,
1961-S. .12(1)(a) and (f)-Scope of-Death of tenant-Heritable interest in the
premises-Legal representatives If could claim statutory tenancy-If concept
applicable in India-Statutory tenant-If could sub-let the premises.
Rent-Payment-If could be made by cheque.
Procedure-Lower appellate court overlooked
material evidence-Finding, if bad in law-High Court-If could reverse.
HEADNOTE:
Section 12(1) of the Madhya Pradesh
Accommodation Control Act, 1961, enacts that notwithstanding anything to the
contrary contained in any other law or contract no suit shall be filed in any
civil court against a tenant for his eviction from any accommodation except on
one or more of the grounds given in the section. The ground given in cl. (a) is
that the tenant has neither paid nor tendered the whole of the arrears of the
rent legally recoverable from him within two months of the date on which the
notice had been served on him by the landlord and the ground in cl. (f) is that
the accommodation let for non-residential purpose is required bona fide by the
landlord for the purpose of continuing or starting his business.
The appellants brought a suit under s.
12(1)(a) and (f) of the Act for ejectment of their tenants. The suit was
dismissed by the trial court on the ground (i) that since the dispute as to the
amount of rent payable by the tenants had not been determined during the
pendency of the suit under s. 13(2) no order for eviction could be made; (ii)
that there was no bona fide requirement of the premises by the appellants for
their own business and (iii) that the refusal by the appellant to accept the
arrears of rent by cheque was valid because tendering by cheque was not valid
tender in the absence of an agreement to that effect.
The first appellate court decreed the suit.
During the pendency of the second appeal in the High Court the tenants died.
The High Court allowed substitution of their legal representatives over-ruling
the appellants' objection that the deceased tenants were mere statutory tenants
and that the right to resist ejectment on the basis of the Rent Control Act was
merely a personal right which was not heritable. On merits, the High Court held
that (i) offer of rent by cheque amounted to valid tender by the tenant and
(ii) the appellants had failed to prove their case of bona fide requirement of
the premises for their own use.
Dismissing the appeal,
HELD: There is no force in the contention
that the defendants who were statutory tenants had no heritable interest in the
demised premises and on their death the right to prosecute the appeal in the
High Court had not survived to their heirs and legal representatives. The
predecessors-in-interest of the respondents had a heritable interest in the
premises and consequently the respondents had the right to prosecute the appeal
in the High Court.
[655A] (1) (a) The concept of statutory
tenancy under the English Rent Acts and under the Indian statutes rests on
different foundations. The term statutory tenancy which is used for referring
to a tenant whose tenancy has been terminated and who would be liable to be
evicted but for the protecting statute, is 646 borrowed from the English Rent
Acts. Courts in England have held that a statutory tenant has no estate or
property in the premises he occupies because he retains possession by virtue of
the Rent Acts and not as being entitled to a tenancy. But in this country it is
not possible to proceed on the basis that a tenant whose contractual tenancy
has determined but who is protected against eviction by the statute, has no
right of property but only personal right to remain in occupation without
ascertaining what his rights are under the statute. [654H: 653A-C] Anand Nivas
(Private) Limited v. Anandji Kalyanji Pedhi
v. Sri Kishan & Anr., [1973] 1 S.C.R.
850; Roe v. Russel, [1928] 2 K.B. 117; Haskins v. Lewis [1931] 2 K.B. 1(9);
Keeves v. Dean [1923] (93) L.J.K.B. 203 (207)
and Boyer v. Warbey [1953] 2 Q.B. 234, referred to.
(b)Tenancy has its origin in contract. A
contracual tenant had an estate or property in the subject matter of the
tenancy and heritability is an incident of tenancy. It cannot be assumed that
with the determination of the tenancy, the estate must necessarily disappear
and the statute can only preserve his status of irremovability and not the
estate he had in the premises in his occupation.
[653D] (c) The definition of a tenant
contained in s. 2(i) makes a person continuing in possession of a premises
after the determination of his tenancy a tenant, unless a decree or order for
eviction had been made against him, thus, putting him on par with a person
whose contractual tenancy still subsists. [653] (d) Section 14 which deals with
restrictions on sub- letting read with the definition contained in s. 2(i)
makes it clear that the so-called statutory tenant has the right to sub-let in
common with contractual tenant and this is because he also has an interest in
the premises occupied by him. [654D] (2)(a) The High Court rightly held that
the cheques sent to the appellants amounted to valid tender of rent. It is
well-established that a cheque sent in payment of a debt on the request of the
creditor, unless dishonoured, operates as a valid discharge of the debt and if
the cheque was sent by post and was met on presentations the date of payment is
the date when the cheque was posted. [655B-D] (b) Rent is payable in the same
manner as any other debt and the debtor has to pay his creditor in cash or
other legal tender, but there can be no dispute that the mode of payment can be
altered by agreement. In the contemporary society it is reasonable to suppose
payment by cheque as implied unless the circumstances of a case indicate
otherwise. [655C] (3) The High Court was within its jurisdiction in setting
aside the finding of the lower appellate court and restoring that of the trial
court on the question of bona fide requirement of the premises by the
appellants. The lower appellate court overlooked a very material part of the
evidence bearing on the question. It is well-established that if a finding of
fact is arrived at ignoring important and relevant evidence the finding is bad
in law. [651B-C] Radha Nath Seal v. Haripada Jana & Ors. AIR 1971 S.C.
1049, followed.
Madan Lal Puri v. Sain Das Berry AIR 1973
S.C. 585;
Mattulal v. Radhey Lal AIR 1974 S.C. 1956;
and Sarvate T. B.
v. Nemi Chand 1966 M.P.L.J. 26, refered to.
& CIVIL APPELLATE JURISDICTION: Civil
Appeal 885/1968.
(From the judgment and order dated 6-11-1967
of the Madhya Pradesh High Court in Second Appeal No. 913 of 1965).
647 S. V. Gupte, R. P. Pandey and S. S.
Khanduja, for the appellants.
F. S. Nariman, J. B. Dadachanji, P. C.
Bhartari, K. L. John for the respondents.
The Judgment of the Court was delivered by
GUPTA, J. Damadi Lal, Sheo Prasad and Tirath Prasad who were members of a Hindu
Joint Family brought a suit for ejectment on July 31,1962 against their tenants
Begamal and Budharmal on the grounds mentioned in clauses (a) and (f) of
section 12(1) of the Madhya Pradesh Accommodation Control Act, 1961. The
relevant provisions are in these terms:
"Sec. 12. Restriction on eviction of
tenants.-(1) Notwithstanding anything to the contrary contained in any other
law or contract, no suit shall be filed in any Civil Court against a tenant for
his eviction from any accommodation except on one or more of the following
grounds only, namely- (a) That the tenant has neither paid nor tendered the
whole of the arrears of the rent legally recoverable from him within two months
of the date on which a notice of demand for the arrears of rent has been served
on him by the landlord in the prescribed manner;
x x x x x x x x x x (f) that the
accommodation let for non-residential purposes is required bona fide by the
landlord for the purpose of continuing or starting his business or that of any
of his major sons or unmarried daughters if he is the owner there of or for any
person for whose benefit the accommodation is held and that the landlord or
such person has no other reasonably suitable non- residential accommodation of
his own in his occupation in the city or town concerned." Plaintiffs' case
under section 12(1)(a) was that the defendant tenants had defaulted in paying
rent for the period October 1, 1961 to May 31, 1962 and did not also pay or
tender the amount in arrears within two months of the service of the notice of
demand. Clause (f) of section 12(1) was invoked on the allegation that the
accommodation let was required bona fide by the plaintiffs for the purpose of
starting their own business. Before the suit was instituted the plaintiffs had
determined the tenancy from May 31, 1962 by a notice dated May 7 1962. The
house in dispute which is in Bazar Chowk in District Satna was let out to the
defendants at a monthly rent of Rs. 275/- for the purpose of their business.
The plaintiffs reside in village Nadan, Tahsil Maihar, where they carry on
their business.
The trial court by its judgment and decree
dated November 11, 1964 dismissed the suit for eviction. There was some dispute
between 648 the parties as to the rate of rent; ultimately the plaintiffs
admitted that the rent was fixed at Rs. 175/- per month with effect from August
1, 1961 by the Rent Control Authority and a sum of Rs. 1200/-, which was the
amount in arrears, had been tendered to the plaintiffs by cheque on May 26,
1962 which the plaintiffs refused to accept. The trial court was of opinion
that the refusal was valid because "tendering by cheque is no valid
tender" unless there was an agreement that payment by cheque would be
acceptable and that the defendants were therefore defaulters within the meaning
of section 12(1)(a). However, in view of the dispute as to the amount of rent
payable by the tenants, which was not determined during the pendency of the
suit as required by section 13(2), the trial court held that no order for
eviction under section 12(1)(a) could be made in this case and passed a decree
for Rs. 1200/- in favour of the plaintiffs.
On the question of the plaintiffs'
requirement of the premises for their own business, the trial court found
itself unable to accept the evidence adduced on behalf of the plaintiffs. Of
the witnesses examined by the plaintiffs on the point, the evidence of P.Ws. 1,
3 and 4 was not relied on because none of them was considered to be an
independent witness and, further, because it was apparent from their evidence
that what they said was what they were tutored to say by the plaintiffs. The
other three witnesses were plaintiffs Damadi Lal and Tirath Prasad (P.W.2 and
P.W.
6 respectively) and Radhey Sham (P.W. 5), a
son of plaintiff Sheo Prasad. They were also disbelieved because of the
following reasons. Damadi Lal tried to give the impression that plaintiffs had
no business except the cloth business and the grocery shop at Nadan. He tried
to conceal that they had a moneylending business and also agricultural lands.
Tirath Prasad stated that the main source of
income of the family was from the moneylending business. Tirath Prasad also
disclosed that the plaintiffs had already a partnership business in cloth at
Satna though Damadi Lal and P.W. 5 Radhey Sham did not admit this. It also
appears in evidence that the plaintiffs had yet another cloth business at a
place called Ramnagar which was managed by Radhey Sham. The plaintiffs claimed
that they would start a business at Satna, but Damadi Lal's evidence is that
they had no income or saving. Tirath Prasad also said that their income was not
even sufficient for their maintenance. Admittedly, plaintiffs had in their
possession one room in the house which was let out to the defendants. The
plaintiffs did not adduce any evidence to show how the said accommodation was
unsuitable or insufficient for them to start their own business. It was also
admitted that the plaintiffs had filed a suit for ejectment on an earlier
occasion, but the defendants having agreed to pay increased rent the suit was
not proceeded with. According to the defendants the present suit was not
instituted on the defendants' refusal to increase the rent further to Rs.
500/-a month.
For the above reasons the trial court did not
accept the case of bona fide requirement holding that P.W. 2, P.W.
5 and P.W. 6 were in the habit of suppressing
the truth to suit their own purpose.
649 On appeal by the plaintiffs, the first
appellate court reversed the decision of the trial court and decreed the suit.
The appellate court agreed with the trial court that sending a cheque did not
amount to a valid tender of rent and, as the tenants did not apply under
section 13(2), they were not entitled to protection against eviction on the
ground of default. As regards the plaintiffs' case of requirement, the court
found, that the criticism of the plaintiffs' witnesses was not justified. The
appellate court thought that the fact that Tirath Prasad was carrying on a
cloth business at Satna which Damadi Lal had kept back from court was
irrelevant in view of the plaintiffs' claim that some members of the family
wanted to start a new business at Satna. According to the appellate court the
further fact that P.W. 5 Radhey Sham was running a cloth business at Ramnagar
was indicative of the growing need of the plaintiffs' family. The room in the
plaintiffs' possession in the disputed house was not found suitable or
sufficient for a wholesale business that the plaintiffs intended to start.
Referring to the trial court's finding that the plaintiffs had no money to
start a new business at Satna, the court found that the evidence did not
support this. The appellate court therefore held that the plaintiffs required
the premises for their own business.
Dissatisfied with this decision, the
defendants preferred a second appeal to the High Court. During the pendency of the
second appeal in High Court both the defendants died. Budharmal died on or
about January 27, 1966 and his legal representatives were brought on record and
substituted in his place without objection. Begamal died on March 2, 1967 and
his heirs applied for being brought on record in his place as appellants. The
plaintiffs made an application praying for an order that the appeal had abated
as a consequence of the death of both the defendants. In this application the
plaintiffs contended that Budharmal and Begamal were "merely statutory
tenants and their right to resist ejectment on the basis of Madhya Pradesh
Accommodation Control Act was merely a personal right" which was not
heritable and had "not devolved upon their heirs".
By its order dated July 26, 1967 the High
Court allowed the application for substitution made by Begamal's heirs
overruling the plaintiffs' objection.
Ultimately on November 6, 1967 the High Court
allowed the appeal setting aside the decree of the lower appellate court and
restoring that of the trial court dismissing the suit. The High Court found
that the defendants were not in arrears of rent. Differing from both the courts
below the High Court held that the cheque which the defendants had sent to the
plaintiffs in payment of the amount in arrears within a month of the service of
the writ of summons on him amounted to a valid tender of rent as required by
section 13, and in view of section 12(3) no order for eviction could be made.
Section 12(3) provides that no order for eviction of a tenant shall be made on
the ground of default if the tenant makes payment or deposits rent as required
by section
13. This is what the High Court held on the
validity of tender of rent by cheque:
"The question is as to whether, instead
of presenting the cash, if a cheque is sent to the landlord, that is sufficient
tender of the arrears of rent or not........In the highly deve- 650 loped
society, payment by cheque has become more convenient mode of discharging one's
obligation. If a cheque is an instrument which represents and produces cash and
is treated as such by businessmen, there is no reason why the archaic principle
of the common law should be followed in deciding the question as to whether the
handing over of the cheque is not a sufficient tender of the arrears of rent if
the cheque is drawn for that amount. It is no doubt true that the issuance of
the cheque does not operate as a discharge of the obligation unless it is
encased, and it is treated as a conditional payment, yet, in my view, this is a
sufficient tender of the arrears if the cheque is not dishonoured. In the
present day society, I am of the view, an implied agreement should be inferred
that if the payment is made by a cheque, that mode of payment would be
accepted." On the ground of bona fide requirement, the High Court found
that there was no evidence to show that the plaintiffs had sufficient funds to
start the wholesale business for which they sought to get possession of the
disputed premises. This is a point which has a bearing on the guanines of the
plaintiffs' claim. The High Court took note of the fact that the plaintiffs
made an attempt to keep back from the Court that they were carrying on business
at two more places, one at Satna, and another at Ramnagar. In this connection the
High Court also referred to the defendants' case that the plaintiffs sought to
increase the rent from Rs. 275/- to Rs. 500/- a month and that when the
defendants had the rent reduced by the Rent Controller to Rs. 175/- per month,
the present suit was filed. The High Court found that these circumstances which
the trial court took into consideration were ignored by the lower appellate
court. The High Court accordingly held that the plaintiffs had failed to prove
their case of bona fide requirement, set aside the decree of the appellate
court, and restored that of the trial court dismissing the suit.
Before us, Mr. Gupte for the
plaintiff-appellants raised three contentions:(1) Begamal and Budharmal both of
whom were statutory tenants had no heritable interest in the demised premises
and, on their death, the right to prosecute the appeal in the High Court did
not survive to their heirs and legal representatives; (2) payment by cheque was
not a valid tender of rent and accordingly the suit should have been decreed on
the ground of default; and (3) the High Court had no jurisdiction in second
appeal to reverse the finding of the first appellate court on the question of
reasonable requirement which was a finding of fact.
In support of his first contention Mr. Gupte
relied on two decisions of this Court, Anand Nivas (Private) Ltd. v. Anandji
Kalyanji Pedhi & Ors. and Jagdish Chander Chatterjee and Ors. v. Sri Kishan
& Anr. The statute considered in Anand Nivas' case was Bombay 651 Rents,
Hotel and Lodging Rates Control Act, 1947 as amended in 1959. The question
there was, whether a tenant whose tenancy had been terminated had any right to
sublet the premises. Of the three learned Judges composing the Bench that heard
the appeal, Hidayatullah and Shah JJ. held that a statutory tenant, meaning a
tenant whose tenancy has determined but who continues in possession, has no
power of subletting. Sarkar J.delivered a dissenting opinion. Shah J.
who spoke for himself and Hidayatullah J.
observed in the course of their Judgment:
"A statutory tenant has no interest in
the premises occupied by him, and he has no estate to assign or transfer. A
statutory tenant is, as we have already observed, a person who on determination
of his contractual right, is permitted to remain in occupation so long as he
observes and performs the conditions of the tenancy and pays the standard rent
and permitted increases. His personal right of occupation is incapable of being
transferred or assigned, and he having no interest in the property there is no
estate on which subletting may operate." It appears from the Judgment of
Shah J. that "the Bombay Act merely grants conditional protection to a
statutory tenant and does not invest him with the right to enforce the benefit
of any of the terms and conditions the original tenancy". Sarkar J.
dissenting held that word 'tenant' as defined in the Act included both a
contractual tenant-, a tenant whose lease is subsisting as also a statutory
tenant, and the latter has the same power to sublet as the former.
According to Sarkar J. even if a statutory
tenant had no estate or property in the demised premises, the Act had
undoubtedly created a right in such a tenant in respect of the property which
he could transfer. Jagdish Chander Chatterjee's case dealt with the Rajasthan
Premises (Control of Rent and Eviction) Act, 1950, and the question for
decision was whether on the death of a statutory tenant his heirs succeed to
the tenancy so as to claim protection of the Act. In this case it was held by
Grover and Palekar JJ., relying on Anand Nivas' case, that after the
termination of contractual tenancy, a statutory tenant enjoys only a personal
right to continue in possession and on his death his heirs do not inherit any
estate or interest in the original tenancy.
Both these cases, Anand Nivas and Jagdish
Chander Chatterjee, proceed on the basis that a tenant whose tenancy has been
terminated, described as statutory tenant, has no estate or interest in the
premises but only a personal right to remain in occupation. It would seem as if
there is a distinct category of tenants called statutory tenants having
separate and fixed incidents of tenancy. The term 'statutory tenancy' is
borrowed from the English Rent Acts. This may be a convenient expression for
referring to a tenant whose tenancy has been terminated and who would be liable
to be evicted but for the protecting statute, but courts in this country have
sometimes borrowed along with the expression certain notions regarding such
tenancy from the 652 decisions of the English courts. In our opinion it has to
be ascertained how far these notions are reconcilable with the provisions of
the statute under consideration in any particular case. The expression
'statutory tenancy' was used in England in several judgments under the Increase
of Rent and Mortgage Interest (War Restrictions) Act, 1915, to refer to a
tenant protected under that Act, but the term got currency from the marginal
note to section 15 of the Rent and Mortgage Interest (Restrictions) Act, 1920.
That section which provided inter alia that a tenant who by virtue of that Act
retained possession of any dwelling house to which the Act applied, so long as
he retained possession, must observe and would be entitled to the benefit of
all the terms and conditions of the original contract of tenancy which were
consistent with the provisions of the Act, carried the description in the
margin "conditions of statutory tenancy". Since then the term has
been used in England to describe a tenant protected under the subsequent
statutes until section 49(1) of the Housing Repairs and Rent Act, 1954 for the
first time defile 'statutory tenant' and 'statutory tenancy'. 'Statutory
tenant' was define as a tenant "who retains possession by virtue of the
Rent Acts and not as being entitled to a tenancy, and it was added, "
statutory tenancy' shall be construed accordingly". This definition of
'statutory tenancy' has been incorporated in the Rent Acts of 1957 and 1965. In
England "statutory tenancy" does not appear to have had any clear and
fixed incidents; the concept was developed over the years from the provisions
of the successive Rent Restrictions Acts which did not contain a clear
indication as to the character of such tenancy. That a statutory tenant is
entitled to the benefit of the terms and conditions of the original contract of
tenancy so far as they were consistent with the provisions of the statute did
not, as Scrutton L. J.
observed in Roe v. Russell, "help very
much when one came to the practical facts of life", according to him
"citizens are entitled to complain that their legislators did not address
their minds to the probable events that might happen in cases of statutory
tenancy, and consider how the legal interest they were granting was affected by
those probable events". He added, "....it is pretty evident that the
Legislature never considered as whole the effect on the statutory tenancy of
such ordinary incidents as death, bankruptcy, voluntary assignment, either
inter vivos or by will, a total or partial subletting; but from time to time
put into one of the series of Acts a provision as to one of the incidents
without considering how it fitted in with the general nature of the tenancy
which those incidents might affect". On the provisions which gave no clear
and comprehensive idea of the nature of a statutory tenancy, the courts in
England had been slowly "trying to frame a consistent theory",
"making bricks with very insufficient statutory straw". Evershed M.
R. in Boyer v. Warbey said:
"The character of the statutory tenancy,
I 653 have already said, is a very special one. It has earned many epithets,
including "monstrum horrendum", and perhaps it has never been fully
thought out by Parliament". Courts in England have held that a statutory
tenant has no estate or property in the premises he occupies because he retains
possession by virtue of the Rent Acts and not as being entitled to a tenancy;
it has been said that he has only a personal right to remain in occupation, the
statutory right of "irremovability", and nothing more.
We find it difficult to appreciate how in
this country we can proceed on the basis that a tenant whose contractual
tenancy has determined but who is protected against eviction by the statute,
has no right of property but only a personal right to remain in occupation,
without ascertaining what his rights are under the statute. The concept of a
statutory tenant having no estate or property in the premises which he occupies
is derived from the provisions of the English Rent Acts. But it is not clear how
it can be assumed that the position is the same in this country without any
reference to the provisions of the relevant statute. Tenancy has its origin in
contract. There is no dispute that a contractual tenant has an estate or
properly in the subject matter of the tenancy, and heritability is an incident
of the tenancy.
It cannot be assumed, however, that with the
determination of the tenancy the estate must necessarily disappear and the
statute can only preserve his status of irremovability and not the estate he
had in the premises in his occupation. It is not possible to claim that the
"sanctity" of contract cannot be touched by legislation. It is
therefore necessary to examine the provisions of the Madhya Pradesh
Accommodation Control Act, 1961 to find out whether the respondents'
predecessors-in-interest retained a heritable interest in the disputed premises
even after the termination of their tenancy.
Section 2(i) of the Madhya Pradesh
Accommodation Control Act, 1961 defines 'tenant' to mean, unless the context
otherwise requires:
"a person by whom or on whose account or
behalf the rent of any accommodation is, or, but for a contract express or
implied, would be payable for any accommodation and includes any person
occupying the accommodation as a sub-tenant and also any person continuing in
possession after the termination of his tenancy whether before or after the
commencement of this Act; but shall not include any person against whom any
order or decree for eviction has been made".
The definition makes a person continuing in
possession after the determination of his tenancy a tenant unless a decree or
order for eviction has been made against him, thus putting him on par with a
person whose contractual tenancy still subsists. The incidents of such tenancy
and a contractual tenancy must therefore be the same unless any provision of
the Act conveyed a contrary intention. That under this Act such a tenant
retains an interest in the premises, and not merely a personal right of
occupation, will also appear from section 14 which contains provisions
restricting the tenant's power of subletting. Section 14 is in these terms:
654 "Sec. 14 Restrictions on
sub-letting.-(1) No tenant shall, without the previous consent in writing of
the landlord- (a) sublet the whole or any part of the accommodation held by him
as a tenant; or (b) transfer or assign his rights in the tenancy or in any part
thereof.
(2) No landlord shall claim or receive the
payment of any sum as premium or pugree or claim or receive any consideration
whatsoever in cash or in kind for giving his consent to the sub-letting of the
whole or any part of the accommodation held by the tenant." There is
nothing to suggest that this section does not apply to all tenants as defined
in section 2(i). A contractual tenant has an estate or interest in premises
from which he carves out what he gives to the sub-tenant. Section 14 read with
section 2(i) makes it clear that the so-called statutory tenant has the right
to sub-let in common with a contractual tenant and this is because he also has
an interest in the premises occupied by him. Considering the position of the
sub-tenant of a statutory tenant in England, Lord Denning said in Solomon v.
Orwell. "When a statutory tenant sub-lets a part of the premises he does
not thereby confer any estate or interest in the sub-tenant. A statutory tenant
has no estate or interest in himself and he cannot carve something out of
nothing. The sub-tenant, like the statutory tenant, has only a personal right
or privilege." In England the statutory tenant's right to sub-let is
derived from specific provisions of the Acts conceding this right to him; in
the Act we are concerned with in this appeal, the right flows from his status
as a tenant. This is the basic difference between the English Rent Restrictions
Acts and the Act under consideration and similar other Indian statutes. In a
Special Bench decision of the Calcutta High Court, Krishna Prosad Bose v. Sm.
Sarajubala Dasi, Bachawat J. considering the question whether a statutory
tenant continuing in occupation by virtue of the West Bengal Premises Rent
Control (Temporary Provisions) Act, 1950 could sub-let the premises let to him,
said:
"The Rent Control and Tenancy Acts
create a special world of their own. They speak of life after death. The
statutory tenancy arises phoenix-like out of the ashes of the contractual
tenancy. The contractual tenant may die but the statutory tenant may live long
thereafter. The statutory tenant is an ex-tenant and yet he is a tenant."
The concept of statutory tenancy under the English Rent Acts and under the
Indian statutes like the one we are concerned with in this appeal rests on
different foundations. It must therefore be held that 655 the
predecessors-in-interest of the present respondents had a heritable interest in
the premises and consequently the respondents had the right to prosecute the
appeal in the High Court. Mr. Gupta's first submission thus fails On the ground
of default, it is not disputed that the defendants tendered the amount in arrears
by cheque within the prescribed time. The question is whether this was a lawful
tender. It is well established that a cheque sent in payment of a debt on the
request of the creditor, unless dishonoured, operates as valid discharge of the
debt and, if the cheque was sent by post and was met on presentation, the date
or payment is the date when the cheque was posted. The question however still
remains whether in the absence of an agreement between the parties, the tender
of rent by cheque amounts to a valid discharge of the obligation. Earlier, we
have extracted a passage from the High Court's Judgment on this aspect of the
case. We agree with the view taken by the High Court on the point. Rent is
payable in the same manner as any other debt and the debtor has to pay his
creditor in cash or other legal tender, but there can be no dispute that the
mode of payment can be altered by agreement. In the contemporary society it is
reasonable to suppose such agreement as implied unless the circumstances of a case
indicate otherwise. In the circumstance of this case, the High Court, in our
opinion, rightly held that the cheque sent to the plaintiffs amounted to valid
tender of rent. The second contention urged on behalf of the appellants must
also be rejected.
Mr. Gupte's last contention relates to the
plaintiffs' bona requirement of the premises. The trial court found on the
evidence that the plaintiffs' claim was unjustified. The first court of appeal
reversed that finding and held that the plaintiffs' requirement was bona fide.
The High Court in second appeal agreed with. the trial court in holding that
the landlord had no bona fide requirement. Mr. Gupte contended that the High
Court had no jurisdiction in second appeal to upset the finding of the lower
appellate court on this issue which, according to him, was a finding of fact.
Mr. Nariman for the respondent relied on the
decision of this Court in Madan Lal Puri v. Sain Das Berry to argue that the
question was a mixed question of law and fact and that it was within the
jurisdiction of the Court in second appeal to examine the correctness of the
finding. In answer Mr. Gupte referred to another decision of this Court
Mattulal v. Radhey Lal which, relying on an earlier decision of this Court in
Sarvate T. B. v. Nemi Chand, held that such a finding was one of fact and not a
finding on a mixed question of law and fact. We do not think that for the
purpose of this case we need express any opinion on the apparent conflict
between these two decisions. Plaintiffs' case was that they had cloth and
grocery business at village Nadan and that they desired to start a wholesale
cloth and grocery business at Satna. The trial court's finding was based inter
alia on the evidence 656 that the plaintiffs had not adequate funds to start a
new wholesale business. The lower appellate court reversed the finding of the
trial court on the ground that there was no evidence that the plaintiff had no
money to start a new business; the lower appellate court's finding rests mainly
on this consideration. The High Court pointed out that plaintff Damadidas alias
Damadi Lal (P. W. 2) stated in his evidence that their income from the business
at Nadan was sufficient " only for meeting the expenses of
livelihood";
plaintif Tirath Prasad (P.W. 6) also admitted
that "our present income is not sufficient even for our maintenance
because there are many members in the family" It thus appears that the
lower appellate court overlooked a very material part of the evidence bearing
on the question. It is well established that if a finding of fact is arrived at
ignoring important and relevant evidence, the finding is bad in law. (see Radha
Nath Seal v. Haripada Jana & Ors. We therefore think that the High Court
was within its jurisdiction in setting aside the finding of the lower appellate
court and restoring that of the trial court on this point.
In the result the appeal fails and is
dismissed but in the circumstances of the case we make no order as to costs.
P.B.R. Appeal dismissed.
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