1. A shop was taken on rent by Sat Pal from the landlord Ram Chand on 30th March, 1963, in Samana Mandi, for a period of one year, i.e., from 1st April, 1963, to 31st March, 1964, at the rate of Rs.600 per annum. A sum of Rs.300 as the advance rent for the first six months was paid at the time of the execution of the rent note and it was agreed that for the second half of the year the balance of Rs.300 would be paid in advance after the expiry of the first six months. It is the common case between the parties that the tenant continued in possession of the shop in dispute even after the expiry of the period mentioned in the rent note Exhibit A-1.
2. The landlord put in an application under Section 13 of the East Punjab Urban Rent Restriction Act, 1949 (hereinafter referred to as the Act). The allegations were as follows:--
(i) That the respondent named above is a tenant under the petitioner at a six monthly rent of Rs.300/-. The respondent agreed to pay this amount of six monthly rent in advance.
(ii) That the amount of six months' advance rent fell due on 1-4-1968, which the respondent has not paid so far. The respondent is liable to be ejected on the ground of non-payment of rent.
3. In reply, paragraph No. 1 was admitted as correct. Regarding paragraph 2, it was mentioned that the tenant-respondent tendered rent to the petitioner on 1st April, 1968, and inasmuch as the petitioner refused to accept the same, the respondent deposited the rent on 4th April, 1968, amounting to Rs.300/- from 1st April, 1968 to 30th September, 1968, and interest amounting to Re.1/- in the Court of the Senior Subordinate Judge, Patiala, and that no rent was due against the respondent.
4. Later an amended reply was put in, in which another plea was taken that no notice was given under Section 106 of the Transfer of Property Act, which was necessary.
5. A number of issues were settled, but it is not necessary to reproduce them, because it was held and it is now conceded that the deposit in the Court of the Senior Subordinate Judge would not relieve the tenant from his liability of being ejected if it had arisen under Section 13 of the Act for non-payment of arrears of rent. The only issue which remains for consideration is issue No. 1 of the additional issues, which was as follows:--
'Whether any notice under Section 106 of the Transfer of Property Act was required to be served upon the respondent before the filing of the eviction application?'
6. It is again the common case between the parties that no such notice was, in fact, served. The learned Rent Controller and the Appellate Authority came to the conclusion that, after the expiry of the period of one year fixed under rent note Exhibit A-1, the tenant continued in possession of the shop as a statutory tenant.
7. One thing is clear that the tenant was either continuing on the basis of some contractual tenancy which came into being as a result of some implied agreement between the parties arising out of the fact that the tenant continued to pay six monthly rent in advance and the landlord continued to accept the same accordingly. Apart from this, as I have reproduced above, in the application for ejectment it was specifically stated, without any reference to the previous rent note that 'the respondent named above is a tenant under the petitioner at a six monthly rent of Rs.300/-.' This was admitted. If, however, it is held that no contractual tenancy arose and that this paragraph in the application for ejectment only loosely mentioned the fact, then the tenant can be treated to be a statutory tenant. The words 'statutory tenancy' were held to be a mere misnomer by a Full Bench of this Court in Bhaiya Ram v. Mahavir Parshad, 70 Pun LR 1011=(AIR 1969 Punj 110(FB). The head note (ii), which has been extracted out of paragraph 23 of the judgment, is to the following effect:--
'........... 'statutory tenancy' is a mere misnomer usually adopted because of the statutory definition of the word 'tenant' contained in Section 2(i) of the East Punjab Urban Rent Restriction Act. Since the statute calls a person whose tenancy has already been determined a tenant for the purposes of the Act, he is given the title of a statutory tenant. In fact it is a mere right or status of irremovability and does not amount to anything more than a restricted statutory protection against eviction to which a tenant has otherwise become liable under the general law.'
8. As given in head note (iv), it is not necessary to terminate a statutory tenancy by a notice under Section 106 of the Transfer of Property Act after the contractual tenancy has already come to an end.
9. The position taken up by the landlord was, and before me is that after the expiry of the contractual period, the tenant was only a statutory tenant. In fact, the landlord could not take any other position, because of the absence of the notice.
10. The learned counsel for the tenant, who has come up in revision, has urged that if it is accepted that it was a statutory tenancy, even then the tenant was not liable to ejectment because in that case he would not be in arrears of rent in the light of the provisions of clause (i) of sub-section (2) of Section 13 of the Act, though he vehemently urged, basing himself on the wording of paragraph 1 of the application for ejectment and the reply by the tenant that admittedly it was the common case of both the parties that Sat Pal was a tenant under the petitioner at a six monthly rent of Rs.300. If that be so, then he is certainly a tenant under an agreement between the parties by which the tenant had agreed to the following:--
(i) The tenancy was for a period of six months at a time.
(ii) The rent was to be paid in advance for the whole of the period of six months.
11. If it were only a statutory tenancy, then, as provided under Section 6 of the Act, the landlord cannot claim any sum in addition to the fair rent and he can stipulate for and receive in advance an amount not exceeding one month's rent. It is, however, not necessary to go into the question, whether the tenancy was contractual or not, because even on the assumption that it is statutory, the contention of the learned counsel that the tenant was not in arrears and, therefore, not liable to ejectment under Section 13(2)(i) of the Act, seems to have force. The relevant part of sub-section (2) of Section 13 of the Act runs as follows:--
'(2) A landlord who seeks to evict his tenant shall apply to the Controller for a direction in that behalf. If the Controller, after giving the tenant a reasonable opportunity of showing cause against the applicant, is satisfied--
(i) that the tenant has not paid or tendered the rent due by him in respect of the building or rented land within fifteen days after the expiry of the time fixed in the agreement of tenancy, with his landlord or in the absence of any such agreement, by the last day of the month next following that for which the rent is payable:
.. .. .. ...'
12. In view of the above, the tenancy being statutory, it has to be taken that rent for the month of April, 1968, became payable only by the end of May, 1968, and before that date the tenant could not be said to be in arrears. As already stated, the application for ejectment was filed on 20th May, 1968, and, therefore, on the date of the application, the tenant could not be said to be in arrears.
13. For the reasons given above, I find that the order of ejectment passed by the Courts below is not in accordance with law. I, therefore, accept this revision, set aside the orders of the Courts below and dismiss the application for ejectment with no order as to costs.
14. Revision allowed.