Appeal No 307 of 1963
Appeal by special leave from the judgment and decree dated September 27 1962 of the Madhya Pradesh High Court in Second Appeal No 158 of 1962
SV Gupte Additional Solicitor General of India OC Mathur Revindra Narain and JB Dadachanji for the appellant
MC Setalvad Rameshwar Nath and SN Andley for the respondents
October 24 1963
The Judgment of the Court was delivered by MUDHOLKAR J
This is an appeal by special leave against the judgment of the High Court of Madhya Pradesh dismissing the defendant s appeal in which he had challenged the decision of the courts below ordering his ejectment from certain premises which are in his occupation as the tenant of the plaintiffs
It is common ground that the defendant was a tenant of the plaintiffs and the rent of the premises in his occupation was Rs 110 pm
It is not disputed that the defendant was in arrears of rent from April 1 1958 to March 31 1959 to the extent of Rs 1020
On April II 1959 the plaintiffs served a notice on the defendant bringing to his notice the fact of his being in arrears of rent for 12 months and requiring him to remit to them Rs 1020 within one month from the date of service of notice and stating that on his failure to do so a suit for ejectment would be filed against him
In addition to this the notice called upon the defendant to vacate the premises by April 30 1959 upon two grounds 1 that the premises were required by the plaintiffs genuinely for business and 2 that the defendant had sublet a portion of the premises to two persons without the permission of the plaintiffs and without having any right to sublet the premises
242 This notice was received by the defendant on April 16 1959
On June 25 1959 the defendant sent a reply to the notice enclosing with it a cheque for Rs 1320
It may be mentioned that this amount consisted of the rental arrears as well as the rent due right up to June 30 1959
The plaintiffs accepted the cheque and cashed it on July 4 1959 and gave a fresh notice on July 9 1959 requiring the defendant to vacate the premises by the end of the month of July
In their notice the plaintiffs also stated that they had cashed the cheque under protest
The defendant did not vacate the premises and therefore the present suit for eviction was instituted on August 14 1959
The plaintiffs claim for eviction on the grounds that the premises were required by them bona fide for the purpose of their business and that the defendant had illegally let them out was negatived by the courts below and therefore must be left out of question
The only question is whether the plaintiffs are entitled to eject the defendant upon the ground that the latter was in arrears of rent for one year and had failed to pay the arrears within one month of the service of the notice dated April 11 1959 upon him
The tenancy being from month to month it was open to the plaintiffs to terminate it by giving 15 days  notice expiring at the end of the month of the tenancy as provided for in section 106 of the 
The premises are however situated in Jabalpur in which the Madhya Pradesh Accommodation Control Act1955 No 23 of 1955 herein referred as the Accommodation Act is in force
Section 4 of the Act provides that 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 set out in that section
One of the grounds set out in that section is that the tenant has failed to make payment to the landlord of any arrears of rent within one month of the service upon him of a written notice of demand from the landlord
It is because of this provision that before the plaintiffs 243 could succeed it was necessary for them to establish that the defendant had failed to pay rental arrears within one month of the receipt by him of a notice of demand
From the undisputed facts it is clear that the defendant was in fact in arrears of rent and had failed to pay it within the time prescribed by cl
a of section 4
According to the learned Additional Solicitor General however in spite of these circumstances the plaintiffs  suit could not have been decreed because 1 the notice of April 11 1959 was invalid for the purpose of section 106 of the inasmuch as the defendant did not have 15 clear days notice expiring by the end of the month of tenancy 2 that the notice as well as the default were both waived by the plaintiffs by reason of a acceptance of the cheque for Rs 1320 which included rent up to June 30 1959 b giving a fresh notice on July 9 1959 and c filing of a suit on August 14 1959 in which reliance was placed only on the second notice
3 that the second notice was not valid with reference to the and the Accommodation Act and 4 that there was no cause of action for the suit on August 14 1959 under section 5 of the Accommodation Act because no rent was in arrears on that date
We shall deal with the points in the order in which he has mentioned them
The learned Additional Solicitor General contends and rightly that the provisions of section 4 of the Accommodation Act are in addition to those of the and that before a tenant 244 can be evicted by a landlord he must comply both with the provisions of section 106 of the and those of section 4 of the Accommodation Act
The Accommodation Act does not in any way abrogate Ch
V of the which deals with leases of immovable property
The requirement of section 106 of the is that a lease from month to month can be terminated only after giving fifteen days  notice expiring with the end of a month of the tenancy either by the landlord to the tenant or by the tenant to the landlord
Such a notice is essential for bringing to an end the relationship of landlord and tenant
Unless the relationship is validly terminated the landlord does not get the right to obtain possession of the premises by evicting the tenant
Section 106 of the does not provide for the satisfaction of any additional requirements
But then section 4 of the Accommodation Act steps in and provides that unless one of the several grounds set out therein is established or exists the landlord cannot evict the tenant
Here the contention is that the ground set out by cl
a of that section does exist because the defendant was in arrears of rent for a period of one year and despite service upon him of a notice to pay the amount within one month of receipt thereof he has failed to pay it
Now the learned Additional Solicitor General states that the notice of April 1959 may be a good notice for the purposes of section 4a of the Accommodation Act but it is not a good notice for the purposes of Is 106 of the for two reasons in the first place it does not purport to determine the tenancy and in the second place the notice falls short of the period of 15 days specified in section 106 of the 
The High Court has however treated this as a composite notice under section 4a of the Accommodation Act and section 106 of the and in our opinion rightly
It has to be observed that the plaintiffs after requiring the defendant to pay the rental arrears due up to the end of March 1959 within one month from the date of service of the notice Proceeded to say failing which 245 suit for ejectment will be filed
These recitals clearly indicate the intention of the landlord to terminate the tenancy of the defendant under the relevant provisions of both the Acts
Even so the question would arise whether the notice was ineffective under section 106 of the because it was not a notice of 15 clear days
It was held by the Calcutta High Court in Subadini vs Durga Charan Lal1 that the notice contemplated by section 106 must be notice of 15 clear days
In calculating the 15 days  notice the day on which the notice is served is excluded and even if the day on which it expires is taken into account it will be clear that the defendant had only 14 clear days  notice
Therefore if the view taken in the aforesaid case is correct the period of notice falls short of that provided in section 106 of the by one day
The correctness of the aforesaid decision was not questioned by the same High Court in Gobinda Chandra Saha vs Dwarka Nath Patita2
No decision was brought to our notice in which a contrary view has been expressed
But Mr Setalvad who appears for the plaintiffs contends that a notice to quit should be liberally construed
In this connection he referred us to a decision in Harihar Banerji vs Ramsashi Roy 3 In that case the Judicial Committee of the Privy Council has observed at p 225    that notices to quite though not strictly accurate or consistent in the statements embodied in them may still be good and effective in law that the test of their sufficiency is not what they would mean to a stranger ignorant of all the facts and circumstances touching the holding to which they purport to refer but what they would mean to tenants presumably conversant with all those facts and circumstances and further that they are to be construed not with a desire to find faults in them which would render them defective but to be construed at res magis valeat quam pereat 1ILR 28 Cal118
2 AIR 1915 Cal 313 3 45 IA 222
246 The decision really is of no assistance in this case because there the defect which was not said to invalidate the notice appertained to the description of the demised premises and the Privy Council held that the recipient of the notice would be quite conversant with the actual description and could know what the description stood for
Here the question is entirely different and that is whether the landlord had given the minimum period contemplated by section 106 of the to the tenant within which to vacate the premises
This provision is evidently intended to confer a facility on the tenant and must therefore be so construed as to enable him to have the fullest benefit of that facility
It seems to us that a liberal construction of a notice which would deprive the tenant of the facility of having the benefit of the minimum period of 15 days within which to vacate is not permissible
We therefore approve of the view taken in Subadini s case1 and hold that the notice dated April 11 1959 was ineffective as it does not fulfil the requirements of section 106 of the 
Mr Setalvad for the plaintiffs however points out that a notice complying with the requirements of section 106 was actually given by the plaintiffs to the defendant on July 9 1959 and no fault could be found with it since it in fact gave more than 15 days  clear notice to the defendant to vacate the premises
He further points out that the suit was actually based upon this notice and therefore was competently instituted
We think the contention to be correct
This brings us to the second and the fourth points raised by the learned Additional Solicitor General which we will deal with together
His contention is that there were actually no arrears on the date of suit and that unless a tenant is in arrears on the date of suit he is not liable to be evicted because of the provisions of section 4a of the Accommodation Act
The opening words of section 4 cl
a are as follows 1 ILR 247 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 a that the tenant has failed to make payment to the landlord of any arrears of rent within one month of the service upon him of a written notice of demand from the landlord This provision clearly speaks of a tenant having failed to make payment to the landlord of the arrears of rent due from him within the time prescribed in that clause
It does not mean that the ground on which eviction is claimed must subsist till the date of suit
It is well to bear in mind that this Provision is quite different from the analogous provisions of the Bombay Rent Hotel and Lodging House Rates Control Act 1947 or the West Bengal Premises Tenancy Act 1956
The protection to tenants given by these Acts is more extensive and a tenant in arrears of rent is given time to pay the arrears even after the institution of the suit
Indeed in order to bring the Madhya Pradesh law in line with these Acts the Accommodation Act has been substituted by the MP Accommodation Control Act 1961 Act 41 of 1961
Clause a of section 12 of that Act entitles a landlord to bring a suit for the eviction of the tenant where the latter has neither paid nor tendered the whole of the arrears of 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
Sub section 3 of that section provides that no order for the eviction of a tenant could be made on the grounds specified in cl
a of Sub section
1 if the tenant makes payment of deposit as required by section 13
Sub section 1 of section 25 gives a right to the tenant to make ail application within certain time for depositing the rental arrears in court
The scheme of the new Act is thus a substantial departure in this respect from that of section 4 of the 1955 Act
The learned Additional Solicitor General however 248 says that if we look to some of the other grounds specified in section 4 and to the provisions of sections 16 and 17 of the new Act it would appear that when a suit is instituted at the instance of the landlord for the eviction of the tenant the latter must be in arrears on the date of the institution of the suit
In this connection he refers us to the provisions of cls
gh j and k of s4 and contends that the grounds referred to in those clauses must necessarily continue to exist till the dates the institution of the suit and that cl
a should be read as containing a similar condition
Clauses g and h deal with cases where the landlord broadly speaking requires the accommodation for his own residence or for his own business
Clause j deals with a case where a tenant had given written notice to quit and in consequence of that notice the landlord has contracted to sell or let the accommodation or has taken any other step as a result of which his interests would seriously suffer if he is not put in possession of that accommodation
Clause k  deals with accommodation which was let to the tenant for use as a residence by reason of his being in the service of the landlord and the tenant has ceased whether before or after the commencement of the Act
to be in such service
It is not necessary for us to decide in this case whether the grounds referred to in these clauses must necessarily continue to exist on the date of suit
It is sufficient to say that the language of cl
a must be given its natural meaning and that there is no warrant for modifying that language because while dealing with other grounds set out in other clauses the legislature has used different language
If we were to uphold the contention of the learned Additional Solicitor General we would be virtually rewriting the section by saying that the tenant was in arrears of rent at the date of suit in place of that the tenant has failed to make payment etc
 It is certainly not open to a court to usurp the functions of a legislature
Nor again is there scope for placing an unnatural interpretation on the language used by the legislature and impute to it an intention which cannot be inferred from the language used by 249 it by basing ourselves on ideas derived from other laws intended to give protection to the tenants from eviction by landlords
As far as sections 16 and 17 are concerned they are of no assistance to the defendant
It is not necessary for us to reproduce their provisions but it is sufficient to say that they were intended to give a limited retrospective operation to the provisions of the new section 4
We have no doubt therefore that the ground set out in cl
a of section 4 need not be shown by the landlord to exist at the date of institution of the suit
All that is necessary for him to establish is that the tenant was in fact in
arrears that he was given one month s notice to pay up the arrears and that in spite of this he failed to pay those arrears within one month of service of notice on him
It is said that such an interpretation will lead to this result that the landlord who had served notice upon a tenant under cl
a of section 4 and in compliance with which the tenant had failed to pay the arrears within one month of the service of notice may continue the tenancy of the defaulting tenant go on receiving lent from him and then at his sweet will may terminate the tenancy
The intention to give such a right to the landlord cannot reasonably accord ing to the learned Additional Solicitor General be attributed to the legislature
Theoretically that is possible but the argument based upon it is farfetched
The landlord who wants to evict a tenant and therefore avails himself of the ground furnished by cl
a of section 4 would not wait for years to file a suit against his defaulting tenant
It seems to us that in furnishing the ground to the landlord the legislature intended to give only a limited protection to the tenant or to put it slightly differently the legislature intended to give protection only to a tenant who was diligent and regular enough in the matter of payment of rent
That is all
Indeed while it is open to a legislature to give wide protection to ever defaulting tenants it does not follow from it that whenever it gives protection it must be deemed to have given him the protection of the widest amplitude
250 Then it is said that such an interpretation will deprive a tenant for whose benefit section 4 was enacted of the benefit of section 114 of the which provides for relief against forfeiture for non payment of rent
What is forfeiture is set out in section 111 g of the  which runs thus By forfeiture that is to say 1 in case the lessee breaks an express condition which provides that on breach thereof the lessor may re enter or 2 in case the lessee renounces his character as such by setting up a title in a third person or by claiming title in himself or 3 the lessee is adjudicated an insolvent and the lease provides that the lessor may re enter on the happening of such event and in any of these cases the lessor or his transferee gives notice in writing to the lessee of his intention to determine the lease The effect of cl
a of section 4 is merely to remove the bar created by the opening words of section 4 on the right which a landlord has under section 106 of the to terminate a tenancy of a tenant from month to month by giving a notice terminating his tenancy
It does not convert a periodic tenancy into one of fixed or indefinite duration nor insert therein a clause of re entry on the ground of nonpayment of rent
The character of the tenancy as one from month to month remains but to it is added a condition that the unfettered right to terminate the tenancy conferred by section 106 will be exercisable only if one of the grounds set out in section 4 of the Accommodation Act is shown to exist
The next question is whether as contended by the learned Additional Solicitor General the default made by the defendant in failing to pay the arrears within one month of the receipt of the notice dated April 11 1959 can be said to have been waived by the plaintiffs
It is no doubt true that by cashing the cheque for Rs 1320 on July 4 1959 the plaintiffs received not merely the arrears of rent up to March 1959 but also rent upto June 30 1959
There is no 251 substance in the plea made on their behalf that they had received the amount under protest
In the first place this is not a case to which illustration a to section 113 of the which says that acceptance of rent falling due after the expiry of a notice to quit amounts to waiver of the notice applies
Then again when the plaintiffs cashed the cheque they had not filed a suit on the basis of the notice of April 11 1959
Merely saying that they accepted the money under protest is therefore of no avail to them
Even so it is difficult to infer merely from the acceptance of the payment a waiver of the right which had accrued to them under section 4a of the Act in consequence of the default made by the defendant in paying arrears of rent
The reason is quite simple
The tenancy as was indeed argued by the learned Additional Solicitor General hah not be en validly terminated by the notice of April 11  1959 and therefore the relationship of landlord and tenant continued
Consequently the plaintiffs were within their right in accepting the rent and cannot be fastened with the intention to waive the default just because of this action since the defendant was by virtue of the Accomodation Act entitled to remain in possession as tenant and liable to pay rent
The learned Additional Solicitor General however faintly contended that if the notice of April 11 1959 could also be construed as being intended to be notice under section 106 of the then even though it was ineffective the acceptance of rent by the plaintiffs on July 4 1959 amounted to a waiver of the right accruing from the notice
As we have already indicated so far as the suit is concerned it is based upon the notice of July 9 1959 that is to say the eviction of the defendant is claimed on the basis of a notice requiring him to quit by the end of July 1959
The right accruing to the plaintiffs to institute the suit on the basis of this notice has not been waived at all and the receipt by them of rent prior to this date does not by itself terminate the right accruing to them under the notice dated July 9 1959
It may be that if the notice of April 11  1959 is construed 252 as a composite notice that is one contemplated by cl
a of section 4 as also one under section 106 of the  acceptance of the rent could along with other circumstances have led to the inference of waiver of the right flowing from the notice under section 106 of the 
But it is difficult to see how such a construction of the notice can at all support a plea of waiver of the right accruing from cl
a of section 4
As already pointed out the notice of April 11 1959 in so far as it purported to be under section 106 of the was ineffective and therefore the relationship of landlord and tenant continued between the plaintiffs and the defendant
Accepting rent under such circumstances from the defendant cannot justify the inference of waiver of quite a different right and that is to take advantage of the statutory right under section 4 of the Accommodation Act accruing by reason of the default made in the payment of rental arrears
Indeed the notice of April 11 1959 as it stands could not by itself have furnished the plaintiffs with the right to institute a suit
Till they acquired that right not only were they entitled to accept the rent which accrued due from month to month but the defendant was himself liable to pay the rent whenever it fell due till the relationship of landlord and tenant was put an end to
Therefore from the sole circumstance of acceptance of rent after April 11 1959 waiver cannot at all be inferred
We are therefore unable to accept the argument of the learned Additional Solicitor General that by cashing the cheque for Rs 1320 the plaintiffs waived all rights which accrued to them under the notice dated April 11 1959
As we have already said no right under section 106 of the had accrued to them because of the ineffectiveness of the notice in so far as the termination of tenancy was concerned and therefore no question of waiver with respect to that part of the notice arises
So far as the right accruing under section 4 a of the Accommodation Act is concerned the defendant having been under liability to pay rent even after the giving of notice the acceptance of the 253 rent by the plaintiffs would not by itself operate as waiver
As regards the last point we have in fact dealt with it already
What was contended was that the notice of April 11 1959 was not a valid notice with reference to both the laws that is the and the Accommodation Act
We have pointed out that though the notice could be construed to be composite notice it was ineffective in so far as it purports to be under section 106 of the 
It was not suggested that in so far as it was a notice under the Accommodation Act it was invalid
There is therefore nothing more to be said about it
For the foregoing reasons we uphold the decree of the High Court and dismiss the appeal with costs
Appeal dismissed


Summary:
The defendant was a tenant of the plaintiffs
The defendant was in arrears of rent for one year to the extent of Rs 1020
On April 11 1959 the plaintiffs served a notice on the defendant requiring him to remit to them Rs 1020 within one month from the date of service of notice failing which suit for ejectment would be filed
This notice was received by the defendant on April 16 1959
On June 25 1959 the defendant sent a reply to the notice enclosing with it a cheque for Rs 1320
This amount consisted of the rental arrears as well as the rent due right up to June 30 1959
The plaintiffs accepted the cheque and cashed it and gave a fresh notice on July 9 1959 requiring the defendant to vacate the premises by the end of the month of July
The defendant did not vacate the premises
Then the plaintiffs filed a suit to eject the defendant upon the ground that the latter was in arrears of rent for one year and had failed to pay the arrears within one month of the service of the notice dated April 11 1959 upon him
From the undisputed facts it was clear that the defendant was in fact in arrears of rent and had failed to pay it within the time prescribed by cl
a of section 4 of the Madhya Pradesh Accommodation Control Act 1953
Heldi Though the notice dated April 11 1959 could be construed to be composite notice under section 4a of the accommodation Act and section 106 of the it was ineffective 240 under section 106 of the because it was not a notice of 15 clear days
In the present case the defendant had only 14 clear days  notice
Subadini vs Durga Charan Lal ILR and Gobind Chandra Saha vs Dwarka Nath Patita AIR 1915 Cal 313 approved
Harihar Banerji vs Ramsashi Roy LR 45 IA 222 dis tinguished
iiThe suit was actually based upon the notice dated July 9 1959 which gave more than 15 days  clear notice to the defendant to vacate the premises
This notice was a valid notice under section 106 of the 
iiiThe contention that a suit under cl
a of section 4 of the Act is not maintainable unless a tenant is in arrears on the date of the suit cannot be sustained
If this contention had to be accepted it would be virtually rewriting the section by saying that the tenant was in arrears of rent at the date of suit in place of that the tenant has failed to make payment etc
 It is certainly not open to a court to usurp the functions of a legislature
Nor again is there scope for placing an unnatural interpretation on the language used by the legislature and impute to it an intention which cannot be inferred from the language used by it by basing ourselves on ideas derived from other laws intended to give protection to the tenants from eviction by landlords
ivThe ground set out in cl
a of section 4 need not be shown by the landlord to exist at the date of institution of the suit
All that is necessary for him to establish is that the tenant was in fact in arrears that he was given one month s notice to pay up the arrears and that in spite of this he failed to pay these arrears within one month of service of notice on him
vThe effect of cl
a of section 4 is merely to remove the bar created by the opening words of section 4 on the right which a landlord has under section 106 of the to terminate a tenancy of a tenant from month to month by giving a notice terminating his tenancy
The character of the tenancy as one from month to month remains but to it is added a condition that the unfettered right to terminate the tenancy conferred by section 106 will be exercisable only if one of the grounds set out in section 4 of the Accommodation Act is shown to exist
viBy cashing the cheque for Rs 1320 the plaintiffs did not waive all rights which accrued to them under the notice dated April 11 1959
No right under section 106 of the had accrued to them because of the ineffectiveness of the notice in so far as the termination of tenancy was concerned and therefore no question of waiver with respect to that part of the notice arises
So far as the right accruing under section 4a of the Accommodation Act is concerned the defendant having been under liability to pay rent even after the giving of notice the acceptance of the rent by the plaintiffs would not by itself of operate as waiver