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Kishoredas P. Mangaldas Vs. Ahmed Suleman - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtMumbai
Decided On
Case NumberO.C.J. Suit No. 635 of 1925
Judge
Reported inAIR1925Bom516; (1925)27BOMLR1086; 94Ind.Cas.564
AppellantKishoredas P. Mangaldas
RespondentAhmed Suleman
Excerpt:
.....to give to the tenant a fresh notice to quit after the bent act has ceased to apply to the premises. - - the notice given is clearly one month's notice. apart from the provisions of the rent act it is not disputed, and it cannot be disputed, that the notice it-:a perfectly good notice to terminate the monthly tenancy which existed between the parties. apart from the statute the tenancy is a matter of contract between the plaintiff and the defendant and in spite of the statute it is perfectly open to the landlord to give a proper notice terminating that tenancy. such a person would not ordinarily be described as a tenant and in spite of the fact that he was described as a tenant in the parliamentary statute the notice given to quit was accepted as a good notice and no further notice..........to a certain period. in the present case there is no scope for the argument that by accepting the rent, the landlord has waived the notice to quit and has treated the contractual tenancy as subsisting. i am, therefore, of opinion that the notice given on july 29 to the defendant was effectual and valid and put an end to the tenancy between the plaintiff and the defendant, and the fact that he was in rightful possession of the premises under the statute for one day against the will of the landlord does not constitute any such change in the legal relationship of the parties as would render any further notice necessary to terminate the tenancy.9. my finding therefore on the first issue is in the affirmative.10. [the learned judge then proceeded to deal with the further point.....
Judgment:

Shah, J.

1. This is one of the three suits in which the question arises as to whether after the Bombay Rent (War Restrictions) Act, II of 1918, has ceased to apply to a particular set of premises, the tenant is entitled to a fresh notice to terminate the tenancy oven though a notice terminating the tenancy has been given by the landlord during the time when the act was in operation. This particular suit has been fully heard and the parties have adduced evidence on all the points At the instance of the learned Counsel for the defendants in the other two suits I have heard the parties in those suits also on the question of notice, which is common to all these three suits. But in dealing with the point 1 shall refer only to the facts of this case. The plaintiff sues to recover possession of a certain shop, which is described as shop No. 3, situated at the junction of Shaikh Memon Street and Janjirkar Street and which is one of a group of shops known as Green Market, The defendant was a monthly tenant on the basis of a lunar month. In 1918 ha used to pay Rs. 120 as rent, but after the Rent Act came into force he paid at Rs. 72-6-0 per month as standard rent. On July 29, 1924, the plaintiff gave one month's notice calling upon the defendant to vacate the premises on Shravan Vad 30th, Samvat 1980, corresponding with August 30, 1924. The premises in question were used for the purposes of business and not as a dwelling house, and the protection which the tenant had under the Rent Act terminated on August 31, 1924. There was some correspondence between the parties which commenced in January 1925. In the course of that correspondence the plaintiff stated that he would charge Rs. 200 per month for the period during which the defendant was wrongfully holding over. The defendant offered to pay sixty per cent, over and above the standard rent, which would be nearly the rent which he was paying before the Rout Act came into force, i. e., nearly Rs. 120. But the plaintiff did not accept the defendant's offer, and insisted upon his paying Rs. 200 per month if he wanted to continue as a tenant. He filed the present suit on March 3, 1925, to recover possession on the basis that the tenancy had been duly terminated by the notice of July 29 and claiming compensation for the period during which the tenant held over after the period of the notice at the rate of Rs. 200 per month.

2. The principal defence is that the notice of July 29 is ineffective because the defendant remained in possession according to law after August'30 under the provisions of the statute at least for one day. That gave him, it is contended, the position of a tenant according to the Act and as no notice terminating that tenancy wan given, there was no effectual termination of the tenancy. It is also contended that the amount claimed by the plaintiff is too high under the circumstances if the notice is found to be effective.

3. I shall first deal with the question which relates to the notice. Though the question has been argued at some length it seems to me that the point is very narrow. Apart from the provisions of the Bombay Rent Act (II of 1918) it is clear that the defendant was a monthly tenant of the plaintiff and his predecessor-in-title, and it was open to the plaintiff to terminate that tenancy by one month's notice according to the lunar month. The notice given is clearly one month's notice. Apart from the provisions of the Rent Act it is not disputed, and it cannot be disputed, that the notice it-: a perfectly good notice to terminate the monthly tenancy which existed between the parties. It is urged, however, that under the provisions of Section 9 of the Rent Act, so long as the defendant pays or is ready and willing to pay rent to the full extent allowable by the Act and performs the conditions of the tenancy, he is a tenant in spite of the notice to terminate the tenancy. No doubt the word 'tenant' is used in Section 9 of the Act; and it is contended that as a result of that provision his position on August 31 was that of a tenant of the defendant and that in spite of the notice the original tenancy continued under the statute which required a further notice to terminate it after the provisions of the Act ceased to apply after August 31. It seems to me that this contention is not sound. Apart from the statute the tenancy is a matter of contract between the plaintiff and the defendant and in spite of the statute it is perfectly open to the landlord to give a proper notice terminating that tenancy. It is equally clear that under the provisions of the Act in spite of the termination of such tenancy the tenant can continue in possession. No order for the recovery of possession of the premises can be made against the tenant so long as he pays or is ready and willing to pay rent to the extent allowable by the Act. In the view I take of the case, this would mean that on August 31 no order for the recovery of possession of these premises could be made against him if he was willing to pay the standard rent on that day. But when the provisions of the Act ceased to apply after August 31, 1924, there was in fact no tenancy to terminate. After August 30, on which the contractual tenancy terminated, he could remain in possession only under the provisions of the statute which gave him the right to remain in possession subject to the conditions as to payment of rent and other conditions with which we are not concerned. But the moment the statute ceased to have operation in his favour his position with reference to the premises is that of a tenant holding over, whose tenancy has been terminated On a consideration of all the arguments urged on both sides, I have come to this conclusion and I have stated the view which I take of the legal position of the defendant after the notice was given and after ha erased to have the benefit of the Rent Act. It has been urged that as the word 'tenant' is used in Sub-section (1) of Section 9, the legislature has given him the position of a tenant during the period in which the Act is in force and he is entitled to all the rights and remedies which a tenant would have against the landlord as if he was a monthly tenant under a contract with his landlord. I am unable to accept this contention and I do not see how the more use of the word 'tenant' in Section 9 can justify this position.

4. Certain English decisions have been referred to in the argument before me and I shall refer only to two of them to show that the view taken by the English Courts on this point is not that the tenant, or the statutory tenant as he is called, is in the position of a tenant apart from the statute, but that his rights and remedies, such as they are, are determined by the provisions of the statute. In Shuter v. Hersh [1922] 1. K.B. 438 it has been held that:-

Where a tenant remains in possession under the provisions of the Increase of Rent, etc, Restrictions Act, 1920, lifter receiving notice to quit, there is no necessity for the landlord to give the tenant a fresh notice to quit before raising the rent to the extent permitted by the Act unless a new tenancy has been actually created, and the mere fact that the landlord accepts rent after giving the notice to quit cannot be taken as a waiver by him of the notice to quit so as to create a new tenancy.

5. Scrutton L.J. refers to the entity described as the ' statutory tenant' as the person who holds the land of another contrary to the will of that other, who strongly desires to turn him out. Such a person would not ordinarily be described as a tenant and in spite of the fact that he was described as a tenant in the parliamentary statute the notice given to quit was accepted as a good notice and no further notice was considered necessary. 1 admit that the point which arises for decision in the present casts did not arise for decision in that case, but the observations with regard to the validity of the notice given during the continuance of the protection of the Act to the tenant are useful in dealing with the present point.

6. The other case is the case of Keeves v. Dean [1924] 1 K.B. 685 . With reference to the point that arose in that case as to whether a statutory tenant would have the right to assign his right to retain the position it was held that the right of a statutory tenant was merely a personal right to retain possession of the premises and could not be assigned to another person. The following observations of Scrutton L. J. are useful (p, 694) :-

This case is another stage in the unwelcome task which Parliament has imposed upon the Courts of defining the position o the 'statutory tenant.' My Lord has objected to his being called by that name, on the ground that he is not a ton nut at all. But it is a convenient expression, and, although it is true that before the passing of those Acts no one would have spoken of a person who after the expiry of his tenancy remained in possession against the will of his landlord as a tenant, Parliament has certainly called him a tenant, and he appears to me to have something more than a personal right against his landlord. I take it that he has a right as against all the world to remain in possession until he is turned out by an order of the Court), and that he could maintain trespass against any person who entered the premises without his permission. However, it does not much matter what he is called so long as it is clear that one is speaking of a person who holds over after the expiry of his tenancy against his landlord's will.

7. I may also refer to Kalianmal v. Dharamsey (1923) 26 Bom. L.B. 141 where the learned Chief Justice makes the following observations with regard to the position of a person entitled to remain in possession under the statute (p. 144):-

The plaintiff was entitled to terminate under the ordinary rules of law the contract which had been established between him and the defendants by the consent decree, and on August 31, 1922, when the plaintiff's notice expired that tenancy terminated. Had it not been for the Rent Act, the defendants would have been bound to vacate, but under its provisions they might remain in possession, and under Section 9 no order for the recovery of possession of the premises could be made so long as they paid or were ready and willing to pay rent to the full extent allowable by the Act, and perform the conditions of the tenancy. I presume that would mean the conditions of the tenancy existing between the parties before the agreement terminated, which would be continued to that extent by virtue of those words if the tenant remained in possession under the Act.

8. These decisions do not deal with the point which arises in the present case. But they throw a very useful light upon the position of the person who remains in possession under the protection of the statute after the contractual tenancy between him and his landlord has been duly terminated by a notice given during the period in which the Act is in force. I do not see any reason why on principle the landlord should be required to give a fresh notice to terminate a tenancy which in fact does not exist. So far as the contractual tenancy between him and his tenant is concerned it has been duly terminated and there is nothing in the provisions of the Rent Act to justify the contention that it cannot be terminated during the continuance of the Act. The mere fact that the tenant is entitled to retain possession while the Act remains in force is not sufficient, in my opinion, to create any such relationship of landlord and tenant between the parties as would require a fresh notice to terminate it. In fact it is a statutory right the limits of which are to be found in the terms of the statute; and the moment the statute ceases to extend that protection to him he ceases to have the protection as against the landlord which the statute gave him up to a certain period. In the present case there is no scope for the argument that by accepting the rent, the landlord has waived the notice to quit and has treated the contractual tenancy as subsisting. I am, therefore, of opinion that the notice given on July 29 to the defendant was effectual and valid and put an end to the tenancy between the plaintiff and the defendant, and the fact that he was in rightful possession of the premises under the statute for one day against the will of the landlord does not constitute any such change in the legal relationship of the parties as would render any further notice necessary to terminate the tenancy.

9. My finding therefore on the first issue is in the affirmative.

10. [The learned Judge then proceeded to deal with the further point above-mentioned, and hold that on the facts and circumstances of the case Rs. 125 a month was fair compensation].


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