# Mangilal v. Suganchand Rat hi

- **Citation:** [1964] 5 S.C.R. 239
- **Court:** Supreme Court of India
- **Decided:** 1963-10-24
- **Case number:** Civil Appeal No. 307 of 1963
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/mangilal-v-suganchand-rat-hi-2974
- **Pages:** 15

## Headnote

..
,,
I
5 S.C.R.
SUPREME COURT REPORTS
239
rectness of the decree for the amount of interest
1963
pendente lite independently of the claim to set aside
--
that decree. The appellant here has not specifically State of Maharachallenged the decree in that respect and therefore
shtra
the High Court is right in holding the memorandum
. v._
of appeal to be sufficiently stamped. The appeal
Mishrz 1t1d''·
is therefore dismissed with costs.
Tarachand
0 na
Appeal dismissed. Raghubar Dayal
J .
MANG I LAL
v.
SUGANCHAND RATHI
(P.B. GAJENDRAGADKAR, K.
SuBBA RAo,
K.N.
WANCHOO, N. RAJAGOPALA AYYANGAR AND J.R.
MUDHOLKAR
JJ.)
Madhya Pradesh Accommodation Control Act, 1955 (23 of 1955),
s. 4(a)-Notice-Whether tenant should in arrears on the date of
suit-Acceptance of arrears-If right under notice waived-Transfer
of Property Act, 1882 (4 of 1882), s. 106.
The defendant was a tenant of the plaintiffs. The defendant
was in arrears of rent for one year to the extent of Rs. 1,020. On
April 11, 1959 the plaintiffs served a notice on the defendant requiring him to remit to them Rs. 1,020 within one month from the
date of service of notice, failing which suit for ejectment wou Id
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. 1,320. This amount consisted
of the rental arre~rs as well as the rent due right up to June 30,
1959. The plamt1ffs 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
gr~mnd that the latter was in. arrears of rent for one year and had
fa!led to pay the arrears w1thm one month of the service of the
notice dated April 11, 1959 upon him. From the undisputed facts
1t 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 s. 4 of the
Madhya Pradesh Accommodation Control Act, 1953.
Held: (i) Though the notice dated April 11, 1959 could be
c.onstrued to be composite notice under s. 4(a) of the accommodation Act and s. 106 of the Transfer of Property Act it was ineffective
1963
October 24
1963
Mangilal
v.
Suganchand
Rat hi
240
SUPREME COURT REPORTS
[1964]
uuder s. 106 of the Transfer of Property Act because it was not
a notice of 15 clear days. In the present case, the defendant had
only 14 clear days' notice.
Subadini v. Durga Charan Lal, I.L.R. 28 Cal. 118 and Gobind
Chandra Saha v. Dwarka NathPatita, A.I.R.1915 Cal. 313, approved.
Harihar Banerji v. Ramsashi Roy, L.R. 45 I.A. 222, distinguished.
(ii) The suit was actually based upon the notice dated July 9,
1959 which gave more than 15 days' clear notice to tho defendant
to vacate the premises. This notice was a valid notice under s. 106
of the Transfer of Property Act.
(iii) The contention that a suit under cl. (a) of s. 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 re-writing 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 ay landlords.
(iv) The ground set out in cl. (a) of s. 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

## Text

..
,,
I
5 S.C.R.
SUPREME COURT REPORTS
239
rectness of the decree for the amount of interest
1963
pendente lite independently of the claim to set aside
--
that decree. The appellant here has not specifically State of Maharachallenged the decree in that respect and therefore
shtra
the High Court is right in holding the memorandum
. v._
of appeal to be sufficiently stamped. The appeal
Mishrz 1t1d''·
is therefore dismissed with costs.
Tarachand
0 na
Appeal dismissed. Raghubar Dayal
J .
MANG I LAL
v.
SUGANCHAND RATHI
(P.B. GAJENDRAGADKAR, K.
SuBBA RAo,
K.N.
WANCHOO, N. RAJAGOPALA AYYANGAR AND J.R.
MUDHOLKAR
JJ.)
Madhya Pradesh Accommodation Control Act, 1955 (23 of 1955),
s. 4(a)-Notice-Whether tenant should in arrears on the date of
suit-Acceptance of arrears-If right under notice waived-Transfer
of Property Act, 1882 (4 of 1882), s. 106.
The defendant was a tenant of the plaintiffs. The defendant
was in arrears of rent for one year to the extent of Rs. 1,020. On
April 11, 1959 the plaintiffs served a notice on the defendant requiring him to remit to them Rs. 1,020 within one month from the
date of service of notice, failing which suit for ejectment wou Id
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. 1,320. This amount consisted
of the rental arre~rs as well as the rent due right up to June 30,
1959. The plamt1ffs 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
gr~mnd that the latter was in. arrears of rent for one year and had
fa!led to pay the arrears w1thm one month of the service of the
notice dated April 11, 1959 upon him. From the undisputed facts
1t 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 s. 4 of the
Madhya Pradesh Accommodation Control Act, 1953.
Held: (i) Though the notice dated April 11, 1959 could be
c.onstrued to be composite notice under s. 4(a) of the accommodation Act and s. 106 of the Transfer of Property Act it was ineffective
1963
October 24
1963
Mangilal
v.
Suganchand
Rat hi
240
SUPREME COURT REPORTS
[1964]
uuder s. 106 of the Transfer of Property Act because it was not
a notice of 15 clear days. In the present case, the defendant had
only 14 clear days' notice.
Subadini v. Durga Charan Lal, I.L.R. 28 Cal. 118 and Gobind
Chandra Saha v. Dwarka NathPatita, A.I.R.1915 Cal. 313, approved.
Harihar Banerji v. Ramsashi Roy, L.R. 45 I.A. 222, distinguished.
(ii) The suit was actually based upon the notice dated July 9,
1959 which gave more than 15 days' clear notice to tho defendant
to vacate the premises. This notice was a valid notice under s. 106
of the Transfer of Property Act.
(iii) The contention that a suit under cl. (a) of s. 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 re-writing 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 ay landlords.
(iv) The ground set out in cl. (a) of s. 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.
(v) The effect of cl. (a) of s. 4 is merely to remove the bar
created by the opening words of s. 4 on the right which a landlord
has under s.
106 of the Transfer of Property Act 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
I
right to terminate the tenancy conferred bys. 106 will be exercisable
only if one of the grounds set out in s. 4 of the Accommodation
Act is shown to exist.
(vi) By cashing the cheque for Rs. 1,320 the plaintiffs did not
waive all rights which accrued to them under the notice dated
~
April 11, 1959. No right under s. 106 of the Transfer of Property
Act had accrued to them becanse 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 o.f the notice arises.
So far as the right accruing under s. 4(a) of the Accommodation
Act is concerned, the defendant having been under liability to pay fl.
rent even after the giving of notice the acceptance of the rent by
the plaintiffs would not by itself of operate as waiver.
•
~
l
5 S.C.R.
SUPREME COURT REPORTS
241
CIVIL APPELLATE JURISDICTION: Civil 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.
S. V. Gupte, Additional Solicitor-General of India,
O.C. Mathur, Revindra Narain and J.B. Dadachanji,
for the appellant.
M.C. Setalvad, Rameshwar Nath and S.N. 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 o::cupation was Rs. 110 p.m. lt is not disputed
that the defendant was in arrears of rent from April 1,
1958 to March 31, 1959 to the extent of R&. 1,020.
On April 11, 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. 1,020 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.
1 SCI/64-16
1963
Mangilal
v.
Suganchand
Rat hi
Mudholkar J.
1963
Mangilal
v.
Suganchand
Rat hi
Mudho/kar J.
242
SUPREME COURT REPORTS
[1964]
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.
1,320. 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.
Tn 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 s. 106 of the Transfer of Property
Act, 1882. The premises are, however,
situated
in Jabalpur in which the Madhya Pradesh Accommodation Control Act, 1955 (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,;
(
)
-~
5 S.C.R.
SUPREME COURT REPORTS
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 s. 4.
According to the learned Additional
Solicitor-General, however, in spite of these circumstances the plaintiffs' suit could not have been decreed
because:
(I) the notice of April 11, 1959 was invalid for
the purpose of s. 106 of the Transfer of
Property Act 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. 1,320,
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 Transfer of Property Act
and the Accommodation Act; and
(4) that there was no cause of action for the suit
on August 14, 1959 under s. 5 oftheAccommodation 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 s. 4 of the
Accommodation Act are in addition to those of the
Transfer of Property Act and that before a tenant
1963
Mangi/al
v.
Suganchand
Rat hi
Mudholkar J.
1963
Mangi/a/
v.
Suganchand
Rathi
Mudho/kar J.
244
SUPREME COURT REPORTS
[1964]
can be evicted by a landlord he must comply both
with the provisions of s. 106 of the Transfer of Property
Act and those of s. 4 of the Accommodation Act.
The Accommodation Act does not in any way abrogate
Ch. V of the Transfer of Property Act which deals
with leases of immovable property. The requirement of s. 106 of the Transfer of Property Act 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 Transfer
of Property Act does not provide for the satisfaction
of any additional requirements. But then, s. 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 s. 4(a) of the Accommodation
Act but it is not a good notice for the purposes of
s. 106 of the Transfer of Property Act 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 s. I 06 of the Transfer of Property Act. The High Court has, however,
treated this as a composite notice under s. 4(a) of the
Accommodation Act and s. 106 of the Transfer of
Property Act 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 ,
(
5 S.C.R.
SUPREME COURT REPORTS
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
s. 106 of the Transfer of Property Act because it
was not a notice of 15 clear days. It was held by the
Calcutta High Court in Subadini v. Darga Charan
Lafc1> that the notice contemplated by s. 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 s. 106 of the
Transfer of Property Act by one day. The correctness of the aforesaid decision was not questioned
by the same High Court in Gobinda Chandra Saha
v. Dwarka Nath Patitac•>. 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
v. Ramsashi Ro;f.3>.
Tn that case the Judicial Committee of the Privy
Council has observed at p. 225:
"
h
.
.
h
h
............... t at notices to qmte, t oug 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
hulding 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
ut res magis valeat quam pereat."
(I) I.LR. 28 Cal. ll8.
(2) A.LR. 1915 Cal. 313.
(3) 45 I.A. 222.
1963
Mangila/
v.
Suganchand
Rathi
Mudholkar J.
1963
Mangilal
v.
Suganchand
Rat hi
Mudho/kar J.
246
SUPREME COURT REPORTS
[1964]
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
s. I 06 of the Transfer of Property Act 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 case(1) and
hold that the notice dated April 11, 1959 was ineffective as it does not fulfil the requirements of s. I 06
of the Transfer of Property Act.
Mr. Setalvad for the plaintiffs, however, points
out that a notice complying with the requirements
of s. 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 s. 4(a) of the Accommodation Act.
The opening words of s. 4, cl. (a) are as follows:
(i) I.L.R. 28 Cal. 118.
•
5 S.C.R.
SUPREME COURT REPORTS
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 s.
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 H0L1se 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
Prade,h law in line with these Acts the Accommodation
Act has been substituted by the M.P. Accommodation Control Act, 1961 (Act 41 of 1961). Clause
(a) of s. 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 en the grounds specified in cl. (a) of
sub-s. (1) if the tenant makes payment of deposit
as required by s. 13. Sub-section (1) of s. 25 gives
a right to the tenant to make an 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 s. 4 of the 1955 Act.
The learned Additional Solicitor-General, however,
1963
Mangilal
v.
Suganchand
Rathi
Mudholkar J.
1963
Mangi/al
v.
Suganchand
Rat hi
Muaho/kar J.
248
SUPREME COURT REPORTS
[1964]
says that if we look to some of the other grounds
specified in s. 4 and to the provisions of ss. 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 els. (g),
(h), (j) and (k) of s. 4 and contends that the grounds
referred to in those clauses must necessarily continue
to exist till the date of 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 seriouslv suffer
if he is not put in possession of that accommodation.
Clause (k) deals with accommodation which wa&
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 re-writing 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
<
I
5 S.C.R.
SUPREME COURT REPORTS
249
it by basing ourselves on ideas derived from other
Jaws intended to give protection to the tenants from
eviction by landlords. As far as ss. 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 s. 4.
We have no doubt, therefore,
that the ground set out in cl. (a) of s. 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 s. 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 rent from him and then at his sweet will
may terminate the tenancy. The intention to give
such a right to the landlord cannot reasonably, according 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 s. 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.
1963
Mangila/
v.
Suganchand
Rat hi
Mudho/kar J.
1963
Mangilal
v.
Suganchand
Rat hi
Mudholkar J.
250
SUPREME COURT REPORTS
[1964]
Then it is said that such an interpretation will
deprive a tenant, for whose benefit s. 4 was enacted,
of the benefit of s. 114 of the Transfer of Property
Act which provides for relief against forfeiture for
non-payment of rent. What is forfeiture is set out
in s. 111 (g) of the Transfer of Property Act, 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 effe.~t of cl. (a) of s. 4 is merely to remove the bar
created by the opening words of s. 4 on the right
which a landlord has under s. 106 of the Transfer
of Property Act 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 s. 106 will be exercisable
only if one of the grounds set out in s. 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. 1,320 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
5 S.C.R.
SUPREME COURT REPORTS
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
s. 113 of the Transfer of Property Act 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 s. 4(a)
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, had not been 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 Accommodation 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 s. 106 of the
Transfer of Property Act 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
1963
Mangi/al
v.
Suganchand
Rat hi
Mudholkar J.
252
SUPREME COURT REPORTS
(1964]
1963
as a composite notice, that is, one contemplated
by cl. (a) of s. 4 as also one under s. 106 of the Transfer
Mangilal
of Property Act, acceptance of the rent could, along
v.
with other circumstances, have led to the inference
Suganchand of waiver of the right flowing from the notice under
Rathi
s. 106 of the Transfer of Property Act. But it is difli-
-
cult to see how such a construction of the notice
Mudholkar J. can at all support a plea of waiver of the right accruing
from cl. (a) of s. 4.
As already pointed out, the
notice of April 11, 1959 in so far as it purported to
be under s. 106 of the Transfer of Property Act 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 s. 4 of the
Accommodation Act accruing by rea&en 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.
1,320 the plaintiffs waived all rights which accrued
to them under the notice dated April 11, 1959. As
we have already said, no right under s.
106 of the
Transfer of Property Act 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 s. 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
•
5 S.C.R.
SUPREME COURT REPORTS
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 I I, I 959 was not a valid notice with
reference to both the Jaws, that is, the Transfer of
Property Act and the Accommodation Act. We
have pointed out that though the notice could be
construed to be compo>ite notice it was ineffective
in so far as it purports to be under s. 106 of the Transfer
of Property Act. 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.
THE STATE OF ORISSA
v.
DABAKI DEVI AND OTHERS
(And connected appeals)
(A.K. SARKAR, K.C. DAS GUPTA AND N. RAJAGOPALA
AYYANGAR JJ.)
Sales Tax-Revision against order of assessment-Time limitOrissa Sales Tax Act, 1947 (Orissa 14 o/1947), ss. 12, 23.
The respondents were assessed to sales tax under the provisions
of the Orissa Sales Tax Act, 1947, by the Sales Tax Officer, who
rejected their claim to certain deductions from their taxable turnover,
but, on appeal, the Assistant Collector allowed the claim. The
Collector of Sales Tax, however, acting under s. 23(3) of the Act
revised the orders of the Assistant Collector by raising the taxable
turnover allowed by him to be deducted. The respondents moved
the High Court of Orissa under Art. 226 of the Constitution of
India to quash the orders of the Collector on the ground that
they were illegal under the Act as they had been made more than
thirty six months after the expiry of the quarters in respect of which
the assessments had originally been made. The High Court took
the view that the orders in revision were really reassessments
under sub-s. (7) of s. 12 of the Act of turnover which had escaped
assessment or been under assessed and as such they were barred
by limitation.
1963
Mangilal
v.
Suganchand
Rathi
Mudho/kar J.
1963
October 29