Skip to content


Banchhanidhi Samantrai Vs. LachminaraIn Agarwala - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtOrissa
Decided On
Case NumberA.F.A.D. No. 31 of 1946
Judge
Reported inAIR1950Ori250
ActsTransfer of Property Act, 1882 - Sections 105, 106 and 110; Orissa House Rent Control Act, 1947 - Sections 5 and 13; Orissa House Rent Control Order, 1942 - Sections 13
AppellantBanchhanidhi Samantrai
RespondentLachminaraIn Agarwala
Appellant AdvocateM.S. Rao, Adv.
Respondent AdvocateS.K. Mukherji, Adv.
DispositionAppeal dismissed
Cases Referred(Firm Matrumall Satnarain and Ors. v. Mt. Rami
Excerpt:
.....me it appears that the only exception made in favour of the landlord is the failure of the tenant to pay rent or his committing a breach of the conditions of the tenancy. does not seek to protect, as it does not in express language protect, a tenant by sufferance or a person who is no better than a trespasser. in so far as the relief claimed by the plaintiff is based on his right to recover damages, the appellant has just ground to complain. in this view, this contention must fail. in the present case, the tenancy had terminated on a notice to quit and a decree for ejectment had been passed by the time the act came into force and yet, according to the definition, he is a tenant within the meaning of the act, for the purposes of section 5 as well as of section 13. according to..........the, suit. the defendant's plea wasthat he is protected against eviction by theprovisions of the house rent control order andthat he was willing to pay up all the arrears ofrent. he also questioned the validity of thenotice to quit and denied his liability to paydamages. 2. the corts below have concurrently found that the notice served on the defendant to quit, terminating the tenancy with effect from 10th august 1943, was a valid notice and satisfied the requirements of law. they also found that the house bent control order came into force on 1st november 1943, i. e., after the suit, and therefore did not apply to the facts of this case, as the suit had been filed as early as 28th august 1943. 3. in second appeal, mr. m. s. rao contends, on behalf of the appellant, that - the notice.....
Judgment:

Panigrahi, J.

1. This is a second appeal by the tenant against whom a decree for ejectment has been passed in a suit by the respondent-plaintiff. The plaintiff's case was that the defendant was let into his house as a monthly tenant on a monthly rent of Rs. 14, bat that the defendant was highly irregular in the payment of rent necessitating the filing of two suits by the plaintiff, to recover arrears of rent. The defendant again fell into arrears and the plaintiff was, therefore, obliged to terminate the tenancyby the service of a notice to quit on the defendant. The defendant refused to accept the noticeand hence the, suit. The defendant's plea wasthat he is protected against eviction by theprovisions of the House Rent Control Order andthat he was willing to pay up all the arrears ofrent. He also questioned the validity of thenotice to quit and denied his liability to paydamages.

2. The Corts below have concurrently found that the notice served on the defendant to quit, terminating the tenancy with effect from 10th August 1943, was a valid notice and satisfied the requirements of law. They also found that the House Bent Control Order came into force on 1st November 1943, i. e., after the suit, and therefore did not apply to the facts of this case, as the suit had been filed as early as 28th August 1943.

3. In second appeal, Mr. M. S. Rao contends, on behalf of the appellant, that - the notice (EX. 2) terminating the tenancy is not valid as, according to the plaintiff's allegation, the tenancy commenced on the nth of a month and the notice purports to terminate the tenancy with effect from 10th August 1943. Reliance is placed on Section 110, T. P. Act, which lays down that where the time limited by lease of immovable property is expressed as commencing from a particular day in computing the time, such day shall be excluded. His argument is that since, on the plaintiff's own showing, the tenancy commenced on the 11th of a month, the first day of the tenancy, namely, the 11th, has to be excluded from computation and consequently the tenancy would terminate on the 11th of the succeeding month. This argument appears to me to be fallacious. In the first place, Section 110, T. P. Act applies only to cases where there is an express agreement limiting the period of the lease from a particular day. In the case of periodic leases, such as weekly or monthly tenancies, it is well-settled that the tenancy terminates on the day with which the week or month ends. The leading case on the subject is Queen's Club Gardens Estate v. Bigneli, reported in (1924) 1 K. B. 117 : (93 L. J. K. B. 107), Lush J. observed:

'A weekly tenancy is a tenancy by the week just as a quarterly tenancy is a tenancy by the quater. If the week's notice to quit is cot given so as to expire at the end of a particular week, but at some other time, then another week begins before the notice expires, and this must mean that another complete week has begun. The tenancy being by the week, I do not see how it is possible for either party to give a notice to quit to expire during the currency of the week. When a fresh week begins the tenancy continues for another week just as in the case of a quarterly tenancy, when a fresh quarter begins, the tenancy continues for another quarter.'

This case has been relied on in The Utility Articles . reported in I.L.R. (1943) Bom. 553 : (A. I. B. (30) 1943 Bom. 306), Beaumont C. J., in delivering the leading judgment in the case relied on the observation in the above case that the characteristic of a periodical tenancy is that as each period commences it is not a new tenancy; it is really an accretion to an old tenancy. . . . One result of that doctrine is that a notice to quit must always expire with the expiration of the period of the original tenancy. In other words, where a monthly tenancy commences on the 1st of the month, the notice determining the tenancy should expire on the last day of that month and not on the first day of the succeeding month. Reliance was placed by Mr. Rao on the Privy Council judgment reported in Benoy Krishna Das v. Salsiccioni reported in 59 I. A. 414 : (A. I. B. (19) 1982 P. C. 279), But this case does not really help the appellant. In that case there was a lease for four years from 1st June 1921. The tenants gave notice on 1st February 1928, terminating the tenancy and the notice stated that it was one month's clear notice to take effect from that date and possession would be given up on 1st March. It does not follow that the Privy Council applied the provisions of Section 110, T. P. Act to a monthly tenancy. All that they laid down was that, having regard to Section 110, the four year lease expired at midnight on 1st June 1925, so that the subsequent monthly tenancy began on 2nd June 1925, and could be determined by a notice expiring on the 1st day of the month. Reference was also made to a case reported in Calcutta Landing and Shipping Co. Ltd. v. Victor Oil Co. Ltd., A. I. R. (31) 1944 Cal. 84 ; (211 I. C, 503). All that was decided in this case was that Section 110 applies to both written and oral agreements; and it is significant that Mookherjee J. strikes a different note and holds that Section 110 does not apply to a verbal lease and is confined to written leases only. This case is no authority for the point debated before me, namely, whether the notice to terminate a periodical tenancy should terminate on the day with which the period ends or on the subsequent day. We have, therefore, no hesitation in holding that the notice that was served in this case is valid and had the effect of terminating the tenancy from 10th August 1943.

4. The next contention urged on behalf of, the appellant is that the House Rent Control Act of 1947 which holds the field now applies to the case before us. It may be observed that at the time the suit was pending in the Courts below the House Rent Control Order of 1942 was in force, but the word 'tenant' was not defined.in that Order. The Orissa House Rent Control Act of 1947 (Orissa Act V [5] of 1947) removes this lacuna, and defines 'tenant' as meaning

'any person by whom or on whose behalf tent is payable for any house and includes every person who, from time to time, derives a title under a tenant or a person continuing in possession after the termination of his tenancy otherwise than under the provisions of of this Act.'

Stress is naturally laid on the words 'a person continuing in possession after the termination of his tenancy' and it is contended that the defendant fulfils the character of a tenant who continued in possession though the tenancy had been terminated. This contention, however, though, valid, does not help the defendant in resisting the plaintiff's right to evict him. The operative section which protects tenant is Section 6, which, in Sub-clause (a), provides that

'he shall not be liable to be ejected, whether in execution of a decree or otherwise, except for non-payment of rent or breach of the conditions of the tenancy.'

Mr. Rao's contention is that, despite the existence of a decree for eviction, the tenant is protected under this sub-clause and that so long as he is willing to pay the rent' he can continue to occupy the house. On a plain reading of the sub-clause, it appears to me that the tenant is protected from ejectment on any ground other than non-payment of rent or breach of the conditions of the tenancy, whether such ejectment is brought about by execution of a decree or otherwise. That this is the true construction of the sub-clause would be apparent from the use of the word 'except'. To me it appears that the only exception made in favour of the landlord is the failure of the tenant to pay rent or his committing a breach of the conditions of the tenancy. It was then pointed out that the second proviso to Section 5 indicates how a landlord may obtain exemption from the provisions of Sub-clause (a) in respect of any house. To seek relief under the proviso would be to beg the question because, as I read Sub-clause (a), the landlord incurs no disability to his right to evict the tenant if such right is founded on non-payment of rent. It is only in cases other than those excepted by the sub-clause, that he has to approach the Controller for exemption and not otherwise. This interpretation does no violence either to the language of the Act or the policy underlying the Act, which seeks 'to prevent unreasonable eviction of tenants'.

5. Mr. Rao also referred to Section 13, House Rent Control Act, 1947, but in my opinion that section has no application to this case. All that Section 13 lays down is that if the landlord wants to evict a tenant on any of the grounds, specified in the second proviso to Section 6, he has to obtain the permission of the Controller by an order in writing before filing a suit. It has no application to a case where the right to evict is founded on non-payment of rent and this is certainly in consonance with the interpretation that I have put on Section 5 (a). This view has also been taken by the Patna High Court in a similar case and there is no reason to think that the terms of the Bihar Act are far different from the provisions of the Orissa Act. Section 13, Bihar Act lays downs :

'No order for recovery of possession of any house shall be made so long as the tenant pays, or ia ready and willing to pay rent to the full extent allowable by this order and performs the conditions of the tenancy.'

The difference lies only in putting the same idea in affirmative language in the Orissa Act, which says that if a tenant does not pay rent or commits a breach of the conditions of tenancy he shall be evicted. In the case reported in Firm Ganesh Das Ram Gopal v. Jamuna Das and Ors., A. I. R. (32) 1945 Pat. 385 : (24 pat. 449) the question was whether a tenant under Section 13 of the Bihar Order, included a person whose tenancy had been determined by a valid notice to quit. In this case also, the Bihar House Control Order came into operation after the notice to quit had been served on the tenant. Shearer J, observed :

It would be doing .... extreme violence to the language to construe the word 'tenant' as including a person in the position of the defendant whose tenancy had not merely been determined but against whom a decree in ejectment had been passed and who, if he was still ia possession of the house, was in possession, merely because the Civil Court had stayed the execution of the decree. The word 'tenant' in Section 13 must, in my judgment, to confined to persons who are either tenants under a tenancy agreement or are statutory tenants by reason of the provisions contained in either Section 4 or in Section 12 of the Order itself.'

I agree, if I may say so with respect, with this interpretation put on the word 'tenant' and would hold that the House Rent Control Order! does not seek to protect, as it does not in express language protect, a tenant by sufferance or a person who is no better than a trespasser. Reference may also be made to another case reported in the same series at p. 463 (Firm Matrumall Satnarain and Ors. v. Mt. Rami, (24 Pat, 454), where the retrospective character of the House Rent Control Order came up for decision and it was held that right of action already vested in a person cannot be deemed to have been taken away unless the language of the Legislature ia explicit. It was held in that case that a person whose tenancy by agreement had been determined by a valid notice to quit, but, who, despite that notice, declines to vacate the premises, is not a tenant within the meaning of that word as it occurs in a. 13 of the Bihar House Rent Control Order. Having regard to the fact that the Orissa House Rent Control Order came into force long after the tenancy had been terminated and after the suit in ejectment had actually been instituted, I have no doubt that the House Rent Control Order did not take away the right which had already accrued to the plaintiff to evict the tenant, nor did it confer the status of a statutory tenant on the defendant who was at the time a person in forcible occupation of the leased premises. Nor, as I have said, does the later House Rent Control Act improve the position of the tenant who had already suffered a decree of the Court. If be continued in possession at the time the Act came into force in 1947, it was under the orders of the Civil Court, and by no means could he claim the status of a 'tenant' within the meaning of the Act.

6. Finally it wag argued that the Courts below erred in awarding damages to the plaintiff. In so far as the relief claimed by the plaintiff is based on his right to recover damages, the appellant has just ground to complain. The plaintiff is certainly entitled to compensation for the occupation of the house by the tenant against the will of the landlord, but whether the remedy to be given to the plaintiff should be based on damages or compensation, it cannot be denied that he is entitled to be reimbursed for his having been kept out of possession of the house. Admittedly, the monthly rental is Rs. 14 and it is not disputed that the municipal assessment is based on the computation of the monthly rental at Rs. 20, The Courts below have there, fore, awarded Rs. 20 per month as damages. Having regard, however, to the peculiar circumstances of this case, we think that the defendant can be relieved against a portion of the damages awarded by the Courts below. We accordingly fix RS. 16 per month as a proper measure of the damages that the plaintiff can legitimately recover for his being deprived of the possession of his house. Mr. Rao also appealed to us to give his client come reasonable time to vacate the house, because it is not easy for the tenant to procure a house at short notice, the scarcity of housing accommodation being a notorious fact in all towns, and particularly at Cuttack, This is a fact which is not denied by the respondent. We have, therefore, decided to give time till 10th June 1949 to the appellant to vacate the house and surrender possession of the same to the plaintiff, on condition that rent at Rs. 16 per month is paid regularly to the plaintiff. It is represented to us that the defendant has already deposited in the Court below rent at the rate of Rs. 20 per month The plaintiff shall be at liberty to withdraw from out of the deposits so made at the rate of BS. 16 per month beginning with 10th August 1943 upto 10th June 1949, or an earlier date on which the defendant may vacate the house. If the defendant fails to vacate the house on or before the date fixed, viz., 10th June 1949, the plaintiff shall be at liberty to execute his decree and recover compensation at the rate of Rs. 16 a month until he actually gets possession. This will be in addition to the rent decree in favour of the plaintiff from 11th March 1948 to 10th August 1943 at the rate of Rs. 14 a month.

7. The appeal is accordingly dismissed subject to the directions given above. Each party will bear his own costs in this Court, but the decree relating to costs of the Courts below shall stand.

Ray, C.J.

8. I agree. The questions that have engaged our attention at the hearing of this appeal, being of some general importance, I wish to add a few words. These questions are : (1) Whether the notice to quit served in this case was sufficient in law ; and (2) whether the tenant (appellant) was entitled to protection against eviction under the provisions of the Orissa House Bent Control Act, 1947 (Orissa Act v [5] of 1947).

9. With regard to the first question, Mr. Rao's contention is based upon a construction of Section 110, T. P. Act. He submits that this section applies to the tenancy of the present case, which is not only a tenancy by oral lease, but also one not limited in time. Apart from the controversy whether this section applies to a written lease only or to both kinds of leases, I am certain that it does not apply to a tenancy which is not for a term. Mr. Rao wants to argue that if it is a monthly tenancy it is a tenancy for the term of a month. This contention is fallacious. Tenancy for a time means tenancy that is determined on efflux of time. This is the test. So far as tenancies from month to month are concerned, they are to be terminated on notice to quit at the option of either the lessor or the lessee. Under the circumstances, the tenancy in this case, not being a tenancy for a limit of time, Section 110 does not apply.

10. Besides, the very basis of Mr. Rao's argument in its factual aspect is not to be found on the records. There is no evidence that at the time of the granting of the lease the commencement of the tenancy was at all expressed as between the parties. His basis is the calculation for rent according to the schedule attached to the plaint. There rent is claimed from the 11th of a month till the 10th of the 5th following month, and accordingly arrears of rent for five months were claimed. Mr. Rao wants to argue that this mode of computation suggests that the tenancy commenced on the 11th day of a British calendar mouth. This argument, too, is fallacious. If 11th is included as one of the days foe which rent is claimed, this nth day cannot be claimed twice over by the landlord while calculating the duration of the term of the notice. If 11th is included within the month of the tenancy, the month must terminate on the 10th of the nest month, the rule being that no particular day of a month should be twice included in the month of the tenancy. In this view, this contention must fail.

11. As regards the second question, viz., the applicability of the provisions of Act XI [11] of 1947, I may take a slightly different view from that of my learned brother, but that has no bearing upon the conclusion that has been reached in my learned brother's judgment with which I entirely agree. According to me, even if a tenant has, in the eye of law, namely, the provisions of the Transfer of Property Act, become a trespasser by termination of the tenancy, and even if a decree has been passed against him for eviction, and even if the decree has been stayed from execution, yet he is entitled to protection under this Act unless, for reasons, which I am going to set out herein below, he is liable to be evicted. Having regard to the preamble of the Act, the language used in Section 6 (a), the provisos thereto, and the proviso to Section 13, it is clear that the Act aims at preventing unreasonable eviction of tenants The Act, on the whole, does not propose to force the landlord to put up with tenants who are either undesirable or disloyal to the landlord and to the terms of the tenancy. The Act is named, the House Rent Control Act, the object being that the landlord should not be allowed to demand and exact unreasonably high rent holding out eviction as a threat. The only protection that has been given to the tenant is under Section 5 read with Section 13 of the Act. The definition of the word 'tenant' makes it clear that the Act is intended for the protection of one who is continuing in possession at the time of the commencement of the Act even though his tenancy has terminated either on notice to quit or by a decree of the Court, The only case that is excluded is the case of termination of a tenancy under the provisions of this Act. In the present case, the tenancy had terminated on a notice to quit and a decree for ejectment had been passed by the time the Act came into force and yet, according to the definition, he is a tenant within the meaning of the Act, for the purposes of Section 5 as well as of Section 13. According to Section 5 (a) a landlord is entitled to eject a tenant, as defined in the Act, on the ground of non-payment of rent or a breach of the conditions of the tenancy. In Other words, the landlord's right to eject the tenant on any one of these grounds is not sought to be controlled by the provisions of this Act. Mr. Rao contends that notwithstanding the word 'except' the landlord requires the Controller's permission to eject a tenant even on any of these grounds. This, beyond all possibility of doubt, is a misconstruction. The proviso requiring the landlord to apply to the Controller is one which is intended to give the landlord an 'exemption.' The exemption will lose all its meaning if he were required by the Act to apply to the Controller for all suits or proceedings for ejectment without any distinction. The proviso itself indicates that the reasons, of which the Controller should make an enquiry, are those other than the reasons contained in the execution clause. As the landlord does not stand in need of any exemption, there being no prohibition from his prosecuting any suit or proceeding for ejectment, on grounds contained in the exception clause, he cannot be held to be under the necessity of approaching the Controller for an order of exemption. Mr. Rao seems to have misunderstood the words 'any other good and sufficient reason' occurring in Sub-clause (ii) of proviso 2 to Section 5. There the words ''any other good and sufficient reasons' must mean reasons other than those already excepted in Section 5 (a). He further argues that Section 18 also gives him protection inasmuch as it provides that the landlord cannot entertain a suit or proceeding for eviction of a tenant on grounds specified in proviso 2 to Clause (b) of Section 5 without the Controller's order in writing permitting him to institute such a suit or proceeding and without producing the same before the Court. Here, again, the position has been totally misconceived. This prohibition is confined to such grounds as are specified in proviso 2, namely, the grounds on which he can approach the Controller for exemption from the liabilities imposed upon him under Section 5 (a). If he suffers from no disability in relation to his right to eject on grounds of non-payment of rent and breach of the tenancy conditions, he does not require to apply to the Controller. The proviso to Section 13 throws a flood of light on the intention of the Legislature. The proviso says :

'Where the tenant denies the title of the landlord or claims the right of permanent tenancy, the landlord shall be entitled to sue for eviction ...... and the Court may paaa a decree (or eviction on any of the grounds mentioned in Section 13 or 3. 5 notwithstanding that the Court finds that such denial does not involve forfeiture of the lease.'

12. I will sum up the position to mean that where the tenant obeys the landlord in accepting his title, proves himself loyal to the conditions of the tenancy by fulfilling the same, and does not commit default in payment of rent, he is entitled to protection under the Act against the avarice of a greedy landlord. Nothing more and nothing less than this has been intended, so as to fetter the right of the landlord in exercising his option to get rid of a vexatious tenant or one who is a habitual defaulter.

13. In the course of his argument, Mr. Rao cited an illustration that if a tenant who has to pay rent on the 2nd of a particular month pays it, say, on the 3rd, he incurs the liability of ejectment, to the exclusion of the protection given under the Act. No doubt, as my learned brother observed, we are not to give an answer to a hypothetical question or to dispose of a hypothetical case, but to attribute a fair meaning to the terms occurring here, it is certainly necessary to take note of the point cited in Mr. Rao's illustration, Non-payment of rent must be such as to give a reasonable landlord sufficient cause of annoyance 30 as to intend to get rid of the tenant. Coming to the facts of this case, it is very clear from the written statement of the defendant himself that there have been three suits against him, including the present one, in respect of this disputed tenancy. The first two suits were for recovery of arrears of rent : one was S. C. C. case No. 253 of 1942 and the other No. 179 of 1948. Even after that, he did not become regular in payment of his arrears of rent. He was in arrears for five months before the institution of the suit. Therefore, this is a case of habitual default on the part of the tenant. Another argument that deserves notice is that' non-payment of rent' occurring in the exception clause must be such, according to Mr. Rao, as would entail forfeiture of the tenancy. The very manner in which the words 'non-payment of rent' have been used, as something distinct from breach of conditions of the tenancy, makes it perfectly clear that this non-payment is not one of the conditions of the tenancy, as a ground for forfeiture. Had it been so intended, the language should have been certainly different from what it is here. Secondly, as has been pointed out by Mr. Rao, where non-payment of rent entails forfeiture of the tenancy and ia made the cause of action for a suit in ejectment, the Court has got the discretion to relieve the defaulter against the hardship of forfeiture. In that case, the words 'non-payment of rent' occurring in Section 6 (a), if accepted as such non-payment which is a ground for forfeiture of the tenancy, the tenant will certainly be worse off under the Act, than he should be under the ordinary law, exclusive of the Act. That is just the reason why I say that non-payment of rent here is not that nonpayment which entails forfeiture.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //