# SUPR]jlME OOUR'I' REPORTS [1963] BHAIYA PUNJALAL BHAGWANDDIN v. DAVE BHAGWATPRASAD PRABHUPRASAD

- **Citation:** [1963] 3 S.C.R. 312
- **Court:** Supreme Court of India
- **Decided:** 1961-10-10
- **Bench:** J.L. KuuR, Das Gui'Ta, Raghubab Dayal Jj
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/supr-jlme-oour-i-reports-1963-bhaiya-punjalal-bhagwanddin-v-dave-bhagwatprasad-2620
- **Pages:** 20

## Headnote

Rent (]?nt~l-Eje,ctment for non-payment of arrear• of
rent-Delerm•nation of tonancy, whether noc .. sary before filing
of suit-Notice to quit, validity of Tenancy, according to IndU...
Calendar-Whether converted lo OTte uTtder British CalendarRelief against fdrfeiture-Bombay Rents, Hotel and Lodging
House Rate• Control Act, 19'7. (Bom. LVII of 19!17) a. 12( 3)(a).
The appellant was a tenant of the respondents in respect
of certain residential premises.
The tenancy was by the
Indian Calendar. The appellant did not
pay arrears of
rent for about 5 years and the landlords gave him notice to
f{Uit as he was in arrears of rent for more than 10: months
and asked him to quit on the last day of the Indian month.
On the appellant's failure to comply the landlords filed a suit
for ejectment under s. 12(3)(a) of the Bombay Rents, Hotel
and Lodging House Rates Control Act, 1947. Within two
months of the institution of the suit the appellant deposited the
arrears of rent. The suit for ejectment was decreed. The appellant contended that in view of•. 27 of the Act and r. 4 the
tenancy was deemed tojbe by the British Calendar· and the
notice to quit expiring ,with the end of the Indian month was
invalid and that he should have been relieved ·against
forfeiture. The landlords contended that no notice to quit was
necessary for filing the suit, that the notice given was valid
and that there could be no relief against forfeiture.
Held, that the suit for ejectment was rightly decreed.
It was incumbent upon the landlords to determine the
contractual tenancy by a proper notice before they could file
a suit for the ejeccment of the tenant on the ground of non.
payment of arrears under s. 12(3) (a) of the Act. The Act
did not create a new right in the landlord to evict the tenant
for non-payment of rent; the right to evict was dependent
upon a proper termination of the tenancy. The Act gave
extra protection to the tenant which he could avail of after hia
tenancy was determined. There was nothing in s.12 of the
Act which overrode the provisions of the transfer of Property
Act.
The right to possession had to be distinguished from
3 S.C.R.
SUPREME COURT REPORTS
313
'N
'the right to recover possession. The right to possession arose
on the determination of fhe tenancy and the right to recover
possession arose under the Act after the right to possession
had arisen.
Dr. K.A. Dhairyawan, v. J.R. Thakur, [1959) S.C.R.
799, Raghubir Narayan Lotlikar v. Fernandiz, (1952) Bom.
L.R. 505, Karsandas v. Karsanji, A.I.R. (1953) Sau, 1_13,
•Meghji Lakhamahi v. Furniture Workshop, (1954) A.G. 80 and
Ebner v. LaseeUes, ( 1928) 2 K.B. 486, referred to.
Rai Brij Raj Krishna v. S.K. Shaw and Bros. [195l]S.C.R.
145 and Shri Hem Chand v. Shrimati Sham Devi, I.L.R.
( 1955) Punj. 36, distinguished.
The notice to quit was a valid notice. The original
tenancy was . according to the Indian Calendar and there
.... was nothing in s. 27 of the Act or in r.4 which converted
it into a tenancy according to the British Calendar. Section
2 7 and r .. 4 merely provided for the recoverability of rent
ace ording to the British Calendar.
In view of the provisions of s.12 there could be no
relief against forfeiture in the presmt case, Section 12(3)(a)
empowered the court to pass a decree for eviction in case
of rent payable month by month if tbe arrears of rent had
_,been for a period of six months and the tenant had neglected
to make the payment within a month of the service of the
notice of demand. The payment of arrears after institution
of the suit did not afJ'ect his liability to eviction and the
court's power to pass the decree. The Court was bound to
pass the decree when the requirments of the section were
satisfied.
Where the legislature
intended to give relief
against forfeiture it made a specific provision.
~ ·
Civrr. APPELLATE JURISDICTION: Civil Appeal
No, 209 of 1962.
Appeal by epeoia.l leave from .the judgment
and order dated October 10, 1961, of the Gujarat
High Court in Civil .

## Text

Mq4.
312
SUPR]jlME OOUR'I' REPORTS [1963]
BHAIYA PUNJALAL BHAGWANDDIN
v.
DAVE BHAGWATPRASAD PRABHUPRASAD
(J.L. KuuR, K.C, DAS GUI'TA, and
RAGHUBAB DAYAL JJ,)
Rent (]?nt~l-Eje,ctment for non-payment of arrear• of
rent-Delerm•nation of tonancy, whether noc .. sary before filing
of suit-Notice to quit, validity of Tenancy, according to IndU...
Calendar-Whether converted lo OTte uTtder British CalendarRelief against fdrfeiture-Bombay Rents, Hotel and Lodging
House Rate• Control Act, 19'7. (Bom. LVII of 19!17) a. 12( 3)(a).
The appellant was a tenant of the respondents in respect
of certain residential premises.
The tenancy was by the
Indian Calendar. The appellant did not
pay arrears of
rent for about 5 years and the landlords gave him notice to
f{Uit as he was in arrears of rent for more than 10: months
and asked him to quit on the last day of the Indian month.
On the appellant's failure to comply the landlords filed a suit
for ejectment under s. 12(3)(a) of the Bombay Rents, Hotel
and Lodging House Rates Control Act, 1947. Within two
months of the institution of the suit the appellant deposited the
arrears of rent. The suit for ejectment was decreed. The appellant contended that in view of•. 27 of the Act and r. 4 the
tenancy was deemed tojbe by the British Calendar· and the
notice to quit expiring ,with the end of the Indian month was
invalid and that he should have been relieved ·against
forfeiture. The landlords contended that no notice to quit was
necessary for filing the suit, that the notice given was valid
and that there could be no relief against forfeiture.
Held, that the suit for ejectment was rightly decreed.
It was incumbent upon the landlords to determine the
contractual tenancy by a proper notice before they could file
a suit for the ejeccment of the tenant on the ground of non.
payment of arrears under s. 12(3) (a) of the Act. The Act
did not create a new right in the landlord to evict the tenant
for non-payment of rent; the right to evict was dependent
upon a proper termination of the tenancy. The Act gave
extra protection to the tenant which he could avail of after hia
tenancy was determined. There was nothing in s.12 of the
Act which overrode the provisions of the transfer of Property
Act.
The right to possession had to be distinguished from
3 S.C.R.
SUPREME COURT REPORTS
313
'N
'the right to recover possession. The right to possession arose
on the determination of fhe tenancy and the right to recover
possession arose under the Act after the right to possession
had arisen.
Dr. K.A. Dhairyawan, v. J.R. Thakur, [1959) S.C.R.
799, Raghubir Narayan Lotlikar v. Fernandiz, (1952) Bom.
L.R. 505, Karsandas v. Karsanji, A.I.R. (1953) Sau, 1_13,
•Meghji Lakhamahi v. Furniture Workshop, (1954) A.G. 80 and
Ebner v. LaseeUes, ( 1928) 2 K.B. 486, referred to.
Rai Brij Raj Krishna v. S.K. Shaw and Bros. [195l]S.C.R.
145 and Shri Hem Chand v. Shrimati Sham Devi, I.L.R.
( 1955) Punj. 36, distinguished.
The notice to quit was a valid notice. The original
tenancy was . according to the Indian Calendar and there
.... was nothing in s. 27 of the Act or in r.4 which converted
it into a tenancy according to the British Calendar. Section
2 7 and r .. 4 merely provided for the recoverability of rent
ace ording to the British Calendar.
In view of the provisions of s.12 there could be no
relief against forfeiture in the presmt case, Section 12(3)(a)
empowered the court to pass a decree for eviction in case
of rent payable month by month if tbe arrears of rent had
_,been for a period of six months and the tenant had neglected
to make the payment within a month of the service of the
notice of demand. The payment of arrears after institution
of the suit did not afJ'ect his liability to eviction and the
court's power to pass the decree. The Court was bound to
pass the decree when the requirments of the section were
satisfied.
Where the legislature
intended to give relief
against forfeiture it made a specific provision.
~ ·
Civrr. APPELLATE JURISDICTION: Civil Appeal
No, 209 of 1962.
Appeal by epeoia.l leave from .the judgment
and order dated October 10, 1961, of the Gujarat
High Court in Civil . Revision Application No, 378
of 1960.
R. Ganapathy Iyer, B,R.G.K. Aokar and K.L •
..../Jatki, for the appellant.
M. S. K. Saatri and M. S. Narasimhan, for
respondents.
1962
Bhaiya Punja/al
Bltoqwanddin
v.
Dave Bhagwatprasatl
Prablwprasad
1~62
Bt.ai a Punja/al
Rh~guanJdin
v.
Dave BhfI:iwqlft~,as,ad
Prabh'l(P'.flsad
1 aghuliar Doyal J.
314
· SUPREME COURT RE_I'Ol!-TS (1963)
1962. M;ay 4.
The "jμdgment of the Court was
delivered by
RAGHUBAR DAYAL, J.-This
appeal,
by
sp~cial leave, is against the judgment and decree
of the. High Court of Gujarat.
·
The appellant was a tenant of certain residential premi~es,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 Calenda~.
In 1951 -
the appellant applied for fixation of standard rent.
·On-March 31, 1\154, the standard rent was fixed at
• H~. 25/- per mensem. ·The appellant did not pay
the .arrears of rent froni July 27, I 949, to July 5,
19;'i4. On. Octoper lp, Hl54, the landlords gave
hiin 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
Y~ar 201,1.
T}ie appellant neither paid the arrears
of.rent nor.vacated the premises. Un December 16,
1954, the respondents filed the suit for ejectment basing their claim for ejectment on the provifjiO!JS of ·s.' 12(3) (a) of the BomJ:>ay Rents, Hotel
aq(l Lo~gi!Jg House ratef3. Cqntrol Act, 194 7 (Born.
I.VII of 194 7), hereinafter called the Act.
Within two months of the institution of the
, .,,
suit, t'.he •. appellant deposite'd
an _amhunt of
Rs. 1,075/- in Court, towards arrears of rent and,
wifJi. .. tj;ie perwjssion of the, Court, the respondents
wi~Jidr.e;w a sμm of Rs. 900/-
which was' the
ampunt . due for arrears up to that time. The
Trial Court decreed the suit for ejectment together
with arrears of rent for three years a.nd costs. An
appeal against the decree for ejyotment was di~
missed by the appellate· Court.
The revision to
\----•
thy Jii~p •9Rlfrt . )Vas , also q.μ,.suo.c1i~sful, and, it is
~·
•
3 s.c.R.
SUPREME OOURT REPORTS
315
against the order in revision that this appeal has
been preferred.
1962
Bhai~a Punjalal
Bhagwanddin
"·
Four points were urged before the High Court:
(1) That·the month of tenancy was not by the
Indian Calendar, but was by the British Calendar
and that the Courts below had ignored evi<len<-e in
that regard. (2) Assuming
that the month of
tenancy was by the Indian Calendar according to.
the lease, it would be deemed to be by the British
Calendar in view of the provision of s. 27 of the
Act. (3) As the arrears· of rent had been paid within two months of the institution of the suit, the
appellant be deemed to be ready and willing to
pay the rent and that therefore the landlord was
not entitled to recover possession of the premises.
(4) It is discretionary with the Court to pass a
decree for ejectment in a case under S· 12(3) (a)
of the Act, as the expression used in that subclause is 'the Court may pass a decree for eviction
in any such suit for recovery of possession.'
Davt Bhagwatprosad
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, notwithst!l.nding 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 t"enancy
under the Contract was bv a different Calendar.
The High Court also held that the tenant's depositing arrears of rent within two months of the
institution of the suit would not justify holding
that the tenant was ready and willing to pay the
amount of standard rent and that therefore the
landlord was not entitled to recover possession
Prabhuprasad
Raghubar Dayal J;
196B
Bhaiya Punjalal
Bhagwanddin
••
Dave Bh1gwalprasarl
Prabhupraaad
Raghubar Dayal J.
316
SUPREME COURT REPORTS [1963]
of the premises in view of sub-s.(l) of s. 12 of the ·
Act. Lastly, the High Court held that the Court'I'
is bound to pass a decree for ejectm&nt 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 r
of notice referred to in sub-s. (2) of that section.
As a result, the revision was dismissed.
Two points have been urged for the appellant in this Court. One is that th:e month of the
tenancy was to be by the British Calender in view
of s. 27 of the Act and r. 4 framed thereunder,
and that there could be no forfeiture of the tenancy ~
when the arrears of rent had _been paid within two
months of the institution of the suit.
.
The significance of the first question is that
. if the appellant's tenancy was to be by the month
of the British Calendar, notice to quit was a. bad
notice as it did not comply with the requirements
of s.106 of the Transfer of Property Act and
that therefore there had been no determination rof the tenancy which is a condition precedent for
the landlord being entitled to possession and, con.
sequently, for instituting a suit for ejectment on
any ground whatsoever, including the ground of
rent being in arrears.
The first point to determine, therefore. is
whether it is a condition precedent for the institution of a suit by a landlord for the recovery of
possession from a tenant who has b~en in arrears
of rent that there had been first a determination
of the contractual tenancy. If it is not a condition
precedent; it will not be necessary to determine
whether the month of the tanancy continued to
· be according to th() Indian Calendar according to r-
.~he contraot1 or had bee~ a,ooordin~ to tμe
Britμi~
_,,.
- '
....,. '
3 S.O.R.
S'EJ'PREME OOURT REPORTS
317
Calendar in view of s. 27 of the Act, when a tenancy
is created under a contract between the landlord
and the tenant, that contract must hold good and
continue to be in force till, according to law or
accordin~ to the terms of contract, it comes to an
end. Section III of the Transfer of Property Act
state11 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 qoit, 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 tile right to evict the tenant and recover
possession. This Act was enacted for the purpose
of controlling the rents and repair of certain
premises and of evictions due to the tendency of
landlords to take advant.age 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 neceesity for providing any
further protection in the Act against his eviction
so long as his tenancy continued to exist under the
contract.
Sub-section( I) of s. 12 of the Act provides that
·a landlord shall not be entitled to the recovery of
possession of any premises so long as the tenant
pays, or is ready and willing to pay, the amount of the
standard rent and permitted increases, if any, and
observes and performs the other conditions of the
tenancy, in so far as they are con~istent witll ~Ii~
'
.
196!
llhaiya Punjal•1l
Bht1Jiwanddi1.
v.
Dave IJhagwatprasa
Prabl.uprasad
318
SUPREME COURT REPORTS [1963]
1962
provisions of the Act. It creates a restriction on
Rha!Ja Pun],fol
the landlord's right to the recovery of possession.
Bh,g1"anddin
When the landlord will have such a right is not
D&,.Bha~"watpwsad. provided by it. Ordinarily, the landlord will have
·
Pdibhup,.sad
a right to recover possession from the· tenant when
Raghubar Ddyal J,
the tenancy had deter:mined. The provisiom:r of
this section therefore will operate against the landlord after the determination of the tenancy by any
of the .modes . referred to in A, III of the Transfer
of property Act. What this section of the Act
provides is that even after the determination of
the tenancy, a landlord will ·not be entitled to
recover possession, though a right to receiver possession gets vested in him, so long as the tenant complies with what he is required to do by this section.
It is this extra protection giveu by this section
which will be useful to the tenant after his tenancy
has determined. The section does not create a new
ri11ht 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 landlord's tight
to evict the tenant for default in payment of rent
will arise only after the tenancy is determined and
the continued possession of the tenant is not account
of the contractual terms but on account of the
statutory right conferred on him to continue in·
possession so long as he complies with what sub-s. l
requires of him; The landlord is restricted from
evicting ·the tenant till tbe tenant does not do
what he is required to do for peaceful possessiOn
under sub s.( 1) of s. 12. We are therefore of opinion that where a tenant is in possession under' a
lease from the landlord, he is not to be evicted for
a cause which would give rise to ·a suit for recovery
of possession under s. l 2 if his
tenancy has not
been determined already. It follows that whenever
a tenant Bets in a way which would remove the
bar on the landlord's right to evict him it is necessary for the landlord to serve him with a notice
•
-
.
...,,. .
3 S.C.R.
SUPREME COURT REPORTS
319
determining his tenancy. and also serve him with
a91otioe under sub-s.(~) of s. 12 of the Act.
In this connection reference may be made to
what was stated in Dr. K. A. Dhairyawan v. J. R.
Thakur (1). In that case, the landlord granted a
lease of a. pa.reel of land to the lessees for a certain
period. The lessee was to construct a building on
that land. On the termination of the lease, the
lessees were to surrender and yield up the demised
premi11es
including the building to the lessors.
After the expiry of the period of tha lease, the
lessor sued for a declaration that they were entit·
led to the building and were entitled to claim
possession of the same. The letlsees plead1.,d that
they were also lessees of the building and were
protected from eviction therefrvm by the provisions
of the Bombay Rents, Hotel and lodging House
Control Act, 1947, and that the covenant. for delive·
ring possession of that building could not be enforced as the lease in respect of the land could not be
terminated on account of the protection given by
the Act. It was held that under the lease there was a
demise only of the land and not of the building,
and, consequently, the provisions of th~ Act, dit not
apply to the contract ofdelivery of possession of
the building. It was contended that even in such
a case, possession of the building could not be given
until the lease had be11n determined, which in law,
could not be determined so long as the respondents
oould not be evicted from the demised land of
which they were tenants within the meaning of the
Act.
This contention was repelled. It was said
at p. 808:
"This contention is without force as the
provisions of the Act do not provide for the
-~
continuation of a lease beyond the specified
period stated therein.
.All that the Act does ·
is to · give to the person who continues to
(I) [1959] S.C.R. 799.
191JZ
BhaiJ• Punialal
Bhagw2nddin
v.
Dave Bhngwalprasad
Probhuprasad
Raghubar Dayal J.
1962
Bhai1a Punjalal
_ Bhogwanddin
v.
Dave Bhagwatprasad
Prabhuprasai
Raghubar iJOyal J.
320
SUPREME COURT REPORTS (1963j ·
remfl.in in possession of the land, although the
period of the lease had come to an end, ;j;he
status of a statutory tenant. That is to say,
although the lease had come to an end but
the lessee continued to remain in possession
without the consent of the lessor, he would
nonetheless be a
tenant of the iand and
could not be evicted save as provided by
the Act."
·
This means that the provisions of the Act did not
affect the terms of the lease according to which the
lease came to an end 11.fter the expiry of the period
for which it was given. The leesre's possession after
the expiry of the lease was by virtue of the provisions of the Act and not by virtue of the extension
of the period of the lease. It is a necessary consequence of this view that the restriction on the
landlord's right to reeover possession under s. 12 of
the Act operates after he haR determined the tenancy
and that till then the rights between the parties with
respect to eviction would be governed by the Ordinary law.
·
It was said in Ragbubir Narayan Lotlikar T,
Fernandez (').
(Born. Rents, Hotel and Lodging HoU!le
Rates Control Act (Bom. Act LVII of 1947):
"In our opinion, s.28 applies only to those
suits between a landlord and a tenant where
a landlord has become entitled to possession
or recovery of the premises demised. Under
the Transfer of Property Aot a landlord
becomes entitled to possession when there is a
determination of tenanoy. A tenanoy c&n be
determined in any of the modes laid down
in s. III; and once the tenancy is determined,
under s.108 (q) the lessee is bound to put
the lessor into possession of the property. It
(I) (19:i2) 54 Born. r.R. 505, 511.
3 s.c.R.
SUPREME COURT REPORTS
321
196f
Bhaiyo Punjalol
Bhogwanddin
v.
.
is, therefore, only on the determination of the
lease or the tenancy that the landlord becomes entitled to the possession· of the property, and when he has so becomes entitled to
possession, if he files a suit for a decree for
possession, then s.-28 applies and such a suit
can only be filed in the Small Causes Court."
Dave BhagwatproHl
Prabhupr••ad
Again it was said at the same page:
"Section 12 postulates the
fact
that
landlord is entitled to recovery of possession
and he is only entitled to possession under
the provisions of the Transfer of Property
Act. It is only when he so becomes entitled
that tho Legislature stepa in and prevents the
enforcement of his right, by the protection
. which it gives to the tenant. NI) question of
the application of s. 12 can arise if a landlord
is not entitled to possession at all."
A similar view w0s expressed in lforsandas v.
Karsanji (I) It was said:
" .•. that a tenancy must be duly determined either by a notice to quit or by efflux
of time or under one or the other of the
ch.uses of s. III, T. P, Act before a landlord
can one to evict his tenant on uny of the
grounds contained in the clauses of s.13 (I)
of the Bombay Rent Act as applied to SJJ.U·
rashtra. Therefore a notice determining the
tenancy and calling upon the tenant to quit
was in this case a necessary prerequisite to
the institution of the suit."
The cases reported as Rai Brij Raj Krishna v.
S. K. Shaw and, Brothers (2) and Shri Hem Chand v.
Shrimati Sham Devi (3) are distinguishable. In
the former case, s.11 of the Bihar
Buildings
(I) A.t.R. (1953) Sau. 113, 118. \2) [1951] S.C.R· 145, 150·
( 3) 1.L.R. (1955) Punj. 36.
Raghubar Dayal J,
1962
!Jhai~a· Puiijalal
'·' · Bhagi.vanddin
v.
-Oave Bllagwatpraead
·i
· !rabhuprasad
--
Raghubar ·Dayal J.
322
SUP~El\IE COURT REPORTS (1963]
(Lease, Rent and Eviction) Control Act, 1947, r
(III of 1947), ca'lle for interpretation by this Court
and, in that connection it was said :
"Section 11 beings with the words 'Not
withstanding anything contained in any agree·
ment or law to the contrary', and hence any
attempt to import the provisions relating to
the law of trarisfer of property for the interpretation of the section would seem to be out
of place. Section 11 is a self-contained section, and it is wholly unnecessary to go
outside the Act for determining whether a
tenant is liable to be evicted or not, and
under what conditions he can be evicted: It
clearly provides that a tenant is not liable
to be evicted except on certain conditions,
and one .of the conditions laid down for the
eviction of a month to month t~nant is non·
payment of rent.''
In the present case, s. 12 of the Act is differentl.Y
worded
and cannot therefore be said to ·be a
complete Code in itself.
There is nothing in it
which overrides the provisions of the Transfer of
Property Act.
Shri Hem Ghand's Gase (1) dealt with the
provisions of s.13(i) of the Delhi and Ajmer
Merwara Rent Control Act XXXVIII of 1952. ·
This section provided that no decree or order for
the recovery of possession of any promise11 shall be
passed by any court in favour of the landlord
against a tenant, notwithstanding anything to the
contrary contained in any other law or ~ny con·
tract. It was held that the Rent Control Act
provided the procedure for obtaining the relief
of ejectment and that being so the provisions of
s. 106 of the Transfer of property Act had no relevance, in considering an application for ejectment
(I} I.L.R. (1155) Punj 36.
\
3 S.C.R.
SDPREME COURT REPORTS
323
-.._, made under that Act. There is nothing in the Act
corresponding to the provisions of s. 13(1) of the
Delhi Ajmer Merwara Act. It is unnecessary for
us to consider whether Shri Hem Ohand's case (1)
was rightly decided or not.
In Meghji Lakhamahi and Brothers v. Furniture
Workshop (2) the Privy Council dealt with an appli_ _, cation for possession under s. 16 of the Increase
of reQt (Rebtriotion) Ordinance, No. 23 of 1949
(Kenya) whose relevant portion is :
''(l) No order for the recovery of possession of any premises to which this Ordinance
applies, or for the ejectment of a tenant
therefrom, sh!\11 be made unless ... \k) the landlord requires possession of the premises to
enables the reconstruction or rebuilding
thereof to be carried out ... "
It was said :
"In the pr1~sent case the only question is
whether section 16(i) (k) is so framed as to
envisage or make provision for such an
order.
An application
for possession under
section 16 presupposes that the contractual
tenancy of the demised premises has been
determined. It is not possible to determine
it as to part and keep it in being as to the .
remainder. In the present case the tenancy
of the entire demised premises had been
determined."
The right to possession is to be distinguished
from the right to recover possession. The right
to possession arises when the tenancy is determined.
The right to recover possession follows
the right to possession, and arises when the
person in
possession
does
not make
over
(l) 1.L.R. (1955) Punj.
(2) U95At) A.C. BO. 90.
J96:t
Bhaiva punjaial
B hagwandd in
v.
Dav• Bhagwitprasad
Prabh•prasad.
--
Raghubar z::ayal J• .
J9tl
~hai'a Punj,.,laZ
Bhagwanddin
v.
Dav6 Bhogwatpra•a'
· Prabhuprosad
Rt11J1t'ubar Dayal J •
possession as he is bound to do under law, and
there arises a neceesity 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 recove1 y of possession and not with the stages
prior to it and that they come into play only when
the tenancy is determined and a right to possession
has come in existence.
Of course, if there is not
contractual tenancy and a person is deemed to be
a tenant only on account of a statute giving him
right to remain in possession, the right to possession arises on the person in pos~ession 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 statutory tenancy ..
In Ebner v. Lascelles ( •) It was said, dealing
with the provisions of Increase of Rent and Mortgage Interest (Bestrictions) Act, 1920 (IO and 11
Geo. 5, c. 17):
"lt has been truly said that the main
rights conceded to a tenant under these Acts
are, first a right to hold over or 'status of
irremovability,' and, next, a right not to have.
his rent unduly raised.
The right to hold
over is a right that comes into existence after
the expiration of the contractual tenancy.
During the contractual tenancy the tenant,
being in possession under the protection of
his contract, has no need of the protection of
the Act to enable him to retain possession, but
(I) (1928) 2 KB. 486, 497.
'
-I
-
'
3 s.c.n ..
SUPR!TM:m COURT R:mPORTS
S25
during that tenancy the Act protects him in
reg trd to· rent by providmg that, notwithstanding any other agreements which he may
make with his landlord as to rent, he is not
to be charged a higher rent than the law
allows, and if he is charged a higher rent than
that he can have it reduced. The right to
hold over· after the termination of the con·
tr actual tenancy, and the right to protection
during the contractual tenancy are two rights
which must be kept
distinct from each
other.''
It may be mentioned that s. 5 of thfl aforesaid Act of 19::-:0 provided that no order or
judgment for the recovery of possession of any
dwelling house to which the Act applied or for the
ejectment of a tenant therefrom would he made or
given unless the case fell within one of the clauses
mentioned in sub. s.(1).
We are therefore of opinion that so long as
the contractual tenancy continues, a landlord cannot sue for the recovery of possession even if
s.12 of the Act does not bar the institution of such
a suit, and that ir.i order to take advantage of this
provision of the Act he must first determine the
· te:::!ancy in accordance with the provisions of the
Transfer of Property Act.
It is now necessary to determine whether a
notice served on the appellant to quit the tenancy
on October 16, 1954, the last date of the month
according to the Hindu Calendar, as October 16
happened to be Kartik Vad 30 of S. Y. 2011, the
tenancy having commenced from Kartik Sud 1 of
S.Y. 1963. It is not disputed that originally the
tenancy was according to the Hindu Calendar. The
contention for the appellant is that this month to
month tenancy, according to the Hindu Calendar, was
Bhaira Punjalr..Z
Bhaiwanddin
v. •
,.
Dau1 Bhagwatprasad
Prabhuprasad
Raghubar Dayal J.
1961
Bhai,Ja Punja/al
Bhagwanddin
••
DatJ1 Bltagwatprasatl
Prabhuprasad
Bazhubar DaJ·al J.
•
326
SUPHE1\fE COURT REPORTS (1963]
converted to a similar tenancy according to the British Calendar in view of the provisions of s.27 of
the Act.and r. 4 of the Rules framed under the Act.
Section 2 7 of the Act reads:
"(I) Notwithstanding anything contained in
any Jaw for the time being in force or any
contract, custom or local usage to the
comrary, rent payable by the month or
yrnr or portion of a year shall be recovered according to the British Calendar.
(2) 'lhe State Government may prescribe the
manner in which rent recoverable according to any other calendar before the
coming into operation of this Act shall be
ca,JcuJated and charged in terms of the
Brit.ish Calendar."
Rule 4 of the Bombay Rents, Hotel and Lodging
House hates Control Rules, 1!!48, hereinafter called
the Rules, reads:
"Calculation of rent according to British
Calender.-If, before the Act comes into
force, the rent in respect of any premises·
was chargeable according to a calendar
other than theBritish Calendar, the landlord
shall recover from the tenant rent for the
broken period of the month, year or portion of the yeax· immediately preceding
the date on which the Act comes into
force, proportionate amount according to
the aforesaid Calendar month, year or
portion of the year at which the rent was
then chargeable. After such date the
landlord shall recover rent according to
the British Calendar. The rent chargeable per month according to the British
...,.
. '
-
,/
-i
3 S.C.R.
SUPRF.ME COURT REPORTS
327
Calendar shall not exceed the rent which
was chargeable per month according to
the other calendar followed immediately
before such date."
There is nothing 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 recoverability of the rent according to the British Calendar. Since the enforcement of the Act on Fabruary 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
ra.te and thereafter after the expiry of each Calendar
month. There is nothing in the section or the rule in
regard to the date from which the month for recovery
of rent should commence. This provision was made
probably, as a corollary to the statute providing for standard rents. Standard rents necessitate
standard months. There are a number of calendars
in use in this country. The Hindus themselves use
. several calendars. The Muslims use a different one.
Some calendars are used for particular purposes. It
appears to be for the sake of uniformity and standardisation that a common calendar was to govern the
period of the month of the tenancy and the date for
the recovery of the rent. Rule 4 provided a procedure for adjustment of the recovery of the rent
according to a calendar other than the British Calendar, and further provided that the rent chargeable
per month, according to the British Calender, would
not exceed the rent which was chargeable per month
according to the other calendar followed immediately before that date. In the absence of any specific provision in the Act with respect to any alteration to be made in the period of the month of the
Bhaiia Punjalal
Bhagwanddip
v.
Dave Bhagwatpras••
Prabhuprasad
Raghubar Dayal J.
1962
Bhai.Ja Pu11jalrJ-l
B/Jagwandd.n ·
••
D«vt Blzugwltprnssd
·
Prabhu/J1a8~d
Roghub .. r Day11/ J.
a2s
StJPRll;ME COt:rR1.' REPORTS (198~)
ten:i.ncy, it cannot be held merely on the basis of an
:i.lteration 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 Jaw to make the month
for the period of r(lcovering rent synchronize with
the period of thb month of the tenancy. The tenancy must start on a particular date, and, c::msequently, its month would be the month from that
date, according to the calendar followed. The month
of tenancy according to that calender are settled by
contract from the commencement of the tenancy.
The tenancy under a lease for a certain period starts
from a certain date, be it according to the British
Calendar or any other Calendar. The period of
lease. and consequently the tenancy, comes to an
end at the expiry of that · period according to the
calendar followed by the parties in fixing
the
commencement of the tenancy.
A lease. even according to the British Calendar, can start from any
intermediate date of the calendar month. There
is nothing in s. 27 to indicate 'that the month of the
tenancy to such a lea.se 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 commenoes on the 14th of
a month, would be from the 14th to the 13th
of the next month, according to the British Calendar. The rent would be recoverable with respect
to this period of a month. No intereference 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
-
.
-\
,
---
)
a S.C.tt.
SUPREME COURT REPORTS
329
the Rules, do not in any way convert the month of
the tenancy according to the Indian Calendar to
the month of the British Calendar.
The High Court said in the judgment that
Mr. Parghi, who was appearing for the appellant,.
was unable to cite any decision in support of the
contention raised by him. Our attention, however,
has been drawn to two cases decided by the
Bombay High Court.
They are Civil Revision
Applications Nos. 247 of 1956 and 1583 of 1960
decided by Dixit and Te11dolkar, JJ and Patwardban J., on February 22, 1957, and August 16,
1961, respectively.
The latter decision had to
follow the earlier one. In the earlier case, the
notice to quit required the tenant to give possession
on May 1, 1953.
The tenancy had . commenced
according to th<;J Hindu Calendar.
The notice was
given according to the British Calendar. The High
Court held the notice to be valid, agreeing with the
contention that the effect of the provisions of s. 27
of the Act was to make the tenancy which was
· originally according to the Hindu Calendar, a
tenancy according to the British Calendar. The
ratio of the decision, in the words of the learned
Judges, is:
"Now rent is payable for occupation by
the ~efendant and therefore, the tenancy
must be deemed to be one according to the
British Calendar from the first of the month
to the end of the month ..................... Here
is a local law which by section 27 makes the
tenancy as one accordi.tig to the British
Calendar".
We are 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
appellant.
1962 -
Bhaiya Punja/al
Bhagwanddin
v.
D, v• Bhaflwatp asad
Prabl.upr .sad
Raghubar DJyal J.
11162
B!tai,Jo Punja/(1.l
Bhagwanadin
v.
'Jave Bh'lgwatprosad
Prabhuprasad
r::ag!.ubar DaJal J,
330 . SUPREME COURT REPORTS [1!!63)
The second contention that, the ap;:ielhnt's
having paid the arrears of rent within 2 months of
the institution of the suit, there would be no forfeiture of the tena.ncy has no force in view of the
provisionsofs. 12 of the Act. Sub-section (2) permits
the lan':ilord to institute a suit for the eviotion of
a tenant on the ground of non-payment of rent
after the expiration of one month from the service
of the notice demanding the arrears of tent, and
cl. (a) of sub-s.(3) empowers the Court to pass a
decree in case the rent had been payable by the
month, there was no dispute about the amount of
standard rent, the arrears of rent had been for a
period of six months and the tenant had neglected
to make the payment within a month of the serviee
of the notice of demand. The tenant's paying the
arrears of rent after the institution of the suit therefore does not affect his liability to eviction and the
Court's power to pass a decree for eviction. It is
true that the expression used in cl. (a) of sub-s.(3)
is 'the Court may pass a decree for eviction in any
such suit for recovery of possession', but this does
not mean as contended for the appellant, that the
Court has discretion to pass or not to pass a decree
for eviction in case the other conditions mentioned
in that clause are satisfied. Tbe landlord became
entitled to recover possession wheri the tenant
failed to pay rent and this right in him is not taken
away by any other provision in the ·Act.
The
Court is therefore bound in law to pass the decree
when the requirements of sub-s-(2) of s.12 are
satisfied. This is afao clear from a comparison of
the language used in cl. (a) with the language used
in cl. (b) of sub-lf.(3) which deals with a suit for
evictfon which does not come within cl.( a) and
provides that no decree for eviction shall be passed
in . such a suit if on the first day of hearing of the
suit or on or before such other date as the Court
may fix, the tenant pays or tenders in Court the
r
I"""
..._'
po:,
3 S.O.R.
SUPREME OOCJRT REPORTS
331
standard rent then due and thereafter· continues to
pay or tender in Court regularly such rent till the
sait is finally decided and also pays costs of the
suit as directed by the Court. It is clear that
where the legislature intended to give some benefit
to the tenant on account of ·the p'l.yment of the
arrears during the pen iency of the suit, it made a
specific provision. In the circumstances, we are of
opinion that the Court haa no discretion and has to
pass a. decree for eviction if the other conditions
ofsub.s. (2) of s. 12 of the Act are satisfied.
The result therefore is thalr this appeal fails,
and is accordingly dismissed with costs.
Appeal dismissed.
MAHABIIt GOPE
v.
ST ATE OF BIHAR
(P.B. G.AJENDR.AGADKAR K. SuBBA. RAo and
J.R. Mu:i>HOLKAR, JJ.)
Criminal .L7w -Life convict guilty of constructive murderSentence of derith-Legality-lndian Penal· Gode, 1860 (Act
45 of 1860) SS. 34, 149, 302, 303.
.
The appellant along with eleven others was charged and
tried for offences under ss. 147, 302 read with s.34 of the
Indian Penal Code.
The prosecution alleged that these
twelv~ persons fo:med thems~lves into an .unlawful assembly
and m prosecution of their common object committed the
offence of rioting armed with deadly weapons assaulted the
Cl.ief Head Warder and Watchmen and some of the member
in I?rosecution of t_he common object caused the death of the
C h1ef Warder. Smee the appellant was undergoing sentence
of imprisonmen~ for life there was. a f~rther charge under
s.303. of the Indian Penal Code agamst him. The trial court
c0 nv1cted all the accused for the ofl'ences for which they were
1962
Bhaiy a Punjalal
Bhagw.anddin
v.
Dave Bhagwatprasad
Pr4b/1uprasad
Raghubar D:zyi! J.
1962
,'\-Jay 4