Case: Bhaiya Punjalal Bhagwanddin Vs. Dave Bhagwatprasad Prabhuprasad &amp; Others

2. The appellant was a tenant of certain residential premises situate at Anand, and belonging to the respondents-landlords. 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 standard rent. On March 31, 1954, the standard rent was fixed at Rs 25 per mensem. The appellant did not pay the arrears of rent from Ju1y 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. On 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 Act LVII of 1947), hereinafter called the Act.3. Within two months of the institution of the suit the appellant deposited an amount 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 against the order in revision that this appeal has been preferred.4. 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 bad 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 provisions 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 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.5. 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 tenants 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 of the premises in view of sub-sec.(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-sec. (2) of that Section. As a result, the revision was dismissed.

Court's reasoning:
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 111 of the Transfer of Property Act states the various circumstances in which a lease of immovable property determines. Clause (h) 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 get the right to evict the tenant and recover possession. This Act was enacted for the purpose of controlling the rents and repairs 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.9. Sub-section (1) of S.12 of the Act provides that a landlord shall not be entitled to the recovery of possession of any permission so long as the tenant pays, or is ready and willing to pay, the amount of the standard rent and permitted increases, if any, and observes and performs the other conditions of the tenancy, in so far as they are consistent with the provisions of the Act. It creates a restriction on the 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 tendency by any of the modes referred to in S.111 of the Transfer of Property Act. What this section of the Act provides is that even after the determination of the tenancy, a landlord will not be entitled lo recover possession, though a right to 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 as 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 on account of the contractual terms but on account of statutory right conferred on him to continue in possession so long as he complies with what sub-sec. (1) requires of him. The landlord is restricted from evicting the tenant till the tenant does not do what he is required to do for peaceful possession under sub-sec. (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 landlords right to evict him, it is necessary for the landlord to serve him with a notice determining his tenancy and also serve him with a notice under sub-sec. (2) of S. 12 themeans that the provisions of the Act did not affect the terms of the lease according to which the lease came to an and after the expiry of the period for which it was given. The lessees possession after she 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 landlords 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.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 Propertyright 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 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 was no 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 statutoryare 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 propertyis nothing in 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 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 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 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 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 then the British Calendar, and further provided that the rent chargeable per month, according to the British calendar, 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 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 tie tenancy. The tenancy must start on a particular date, and, consequently, its month would be the month from date, according to the calendar followed. The months of tenancy according to that calendar 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 of 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 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 the Rules do not in any way convert the month of the tenancy according to the Indian Calendar to the month of the Britishare of opinion that this 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