Yogeshwar Dayal, J.
(1) This appeal is directed against the order of the learned Rent Control Tribunal dated June 8. 1976 firming the order of eviction dated October 10. 1972 passed by Shri R. P. Gupta, Additional Rent Controller, Delhi, against the appellant-tenant under clause (e) of proviso to Section 14(1) of the Delhi Rent Control Act (hereinafter referred to as 'the Act').
(2) The main question which arises in the present appeal is whether the appellant was a contractual or statutory tenant at the time of termination of his tenancy by notice dated November 18, 1970 and if so whether the notice dated November IS. 1970 was valid.
(3) The respondent is the owner of the premises in dispute. No. C-86, defense Colony, New Delhi, while appellant was a tenant under him in respect of the ground floor only at Rs. 600.00 per month, excluding water and electricity charges. On or about 28th January, 1971 the respondent filed a petition against the appellant claiming eviction of the appellant on two grounds (i) non-payment of rent with effect from 1st April, 1970 despite service of notice of demand dated November 18. 1970 and (ii) bona fide personal requirement. Eventually, the eviction petition was accepted on the ground of bona fide personal requirement only.
(4) As regards the ground of personal bona fide requirement, the Additional Rent Controller accepted the petition on the solitary statement of the respondent. The case was fixed on October 9, 1972 for respondent's evidence and on that date, counsel for the appellant appeared but insisted that his application for modification of the order under Section 15(1) of the Act which was moved earlier by him be heard and disposed of first However, the Presiding Officer told him that the same would be heard after evidence of the respondent was recorded. Thereupon, learned counsel for the appellant requested for adjournment of the case without recording of the evidence as he was to move for transfer of the case from that court. The request on this ground for adjournment was refused and thereupon, counsel for the appellant withdrew from the case staling that he had no further instructions from the appellant. The case, thereforee, proceeded ex parte and the respondent closed his evidence after examining himself as A. W. 1.
(5) The order of the Additional Rent Controller proceeding ex parte has not been challenged before the Tribunal or before this Court. Before this Court, it is only the validity of the notice of termination of tenancy which has been argued by learned counsel for the appellant.
(6) In the application for eviction filed on behalf of the respondent it was averred, that the premises were let out with effect from October 17, 1968 but later on agreement of lease was executed on February 3, 1969 on the basis of which the premises were given only turn a fixed period of 11 months. Copy of the agreement was attached with the petition. It was also pleaded in the petition that a notice dated November 18, 1970 was duly served on the appellant which was received by the appellant on November 23, 1970. It was also pleaded that the premises were given for a fixed period of 11 months on the basis of an agreement of lease mentioned above. On the expiry of the said fixed period of tenancy, the tenant is liable to vacate the premises.
(7) In the written-statement, the appellant admitted receipt of the notice dated November 18, 1970 but took the plea that the tenancy of the appellant is not validly terminated as the tenancy of the appellant starts from 17th of each English calendar month and ends on the 16th of each subsequent-month and since the notice does not end with the month of the tenancy, the notice is, thereforee, illegal and invalid. it was. however, denied that the premises were let out for a , period of eleven months.
(8) In the replication, it was, however, reiterated by the respondent that the appellant was a tenant for a fixed period of eleven months on the terms and conditions of the lease executed on February 3. 1969 and on expiry of the said lease, the contractual tenancy came to an cad and the appellant is, thereforee, a statutory tenant- In any case. while termmating the tenancy of the appellant by notice dated November 18, 1970 two months time had been given which is quite sufficient under the law. It is also pleaded that strictly speaking no notice was required with respect to the said tenancy but the counsel representing the respondent by way of abundant caution, gave a notice in which the appellant was given two months' time.
(9) The agreement of lease (Exhibit A. 1) dated February 3, 1969 is made with effect from October 17, 1968, the day of occupation of the premises by the appellant. Clauses 4 and Ii of this agreement are relevant. They read as under :
'4.That the lease has been granted for a period of 11 months in the first instance which is renewable further on, on the same terms and conditions with the mutual consent of both the parties. 11. That one month's notice will be necessary from either side to vacate the said premises after the expiry of the lease period.'
(10) Notice Exhibit A/3 was a composite notice of demand and termination of tenancy which stated that the tenancy commences on the 5th and ends on 4th of each English calendar month. It further recited that the appellant is harassing the respondent and that his extended period of lease has already expired and the respondent does not want to renew lease nor does he want to keep the appellant as a tenant as the tenated accommodation is required by him for his personal use and occupation. The notice then recited that 'notice is hereby given to you that your tenancy is terminated with the G expiry of two months from the date of receipt of this notice'. He was further called upon to give the vacant possession of the premises in his occupation within the said period.
(11) The Tribunal took the view that the notice was not in accordance with section 106 of the Transfer of Property Act but that Section did not come into play.
(12) The Tribunal also held that on the expiry of eleven months the tenant became a statutory tenant and, thereforee, no notice termination of tenancy is at all called for. The Tribunal also gave a finding in the alternative that even if it be assumed for the sake of argument that he was a contractual tenant, the notice was valid.
(13) For examining lie question whether a notice to determine the tenancy was necessary on the fact's of this case. one lias to find out the nature of tenancy at the time of the impugned notice. I have already extracted above the relevant clauses 4 and 11 of the said agreement.
(14) It will be noticed that under clause 4, the initial period of lease is for a fixed term but the fixed term is renewable further with mutual consent of both the parties. Under clause 11 the notice of one month from either side to vacate the premises is contemplated only after the expiry of the lease period. Since the lease was with effect from October 17, 1968 for eleven moths, the lease period initially fixed expired in October, 1969 and since admittedly the appellant continued in possession, notice as contemplated by clause 11 became imperative. One month's notice contemplated by clause 11 of the agreement can be given only after the expiry of the lease period.
(15) Rent Acts arc not ordinarily intended to interfere with contractual leases and are Acts for the protection of tenants and are consequently restrictive and not enabling, conferring no new rights of action but restricting the existing rights either under the contract or under the general law. It is well settled that statutory tenancy normally arises when a tenant under a lease holds over i.e. he remains in possession after the expiry or determination of the contractual tenancy. A statutory tenancy, thereforee, comes into existence where a contractual tenant retains possession after the contract has been determined. Right to hold over i.e. the right of irremovability thus is a right which comes into existence after the expiration of the lease and until the lease is terminated or expires by efflux of time the tenant need not seek protection under the Rent Act for he is protected by his lease in breach of which he cannot be evicted: (see the observations of Shelat, J. in Manujendra Dutt v. Purnedu Prosad Roy Chowdhury and others : : 1SCR475 . thereforee, so long as it was necessary to give notice as contemplated by clause 11 of the agreement, the tenant remained a contractual tenant and hence the necessity for determination of the lease in accordance with the contract. It has been held in P. Ramasami Naidu v. Venkataramanjulu Naidu and another : Air 1914 Mad 301 that where a lease provides expressly that after the expiration of the term, the tenancy is terminable by a notice, the lease is not determined until such a notice, as has been agreed upon., is given.
(16) Learned counsel for the appellant submitted that the wording of the notice suggests that the initial period of eleven months was extended in view of paragraph 7 of the notice which used the expression 'Your extended period of lease has already expired'. It was thus suggested that the period of lease must have been extended and, thereforee, he was a contractual tenant. It will be noticed that under clause 4 of the lease the lease could be extended only by mutual consent on the same terms and conditions. Extended period would, again, be for eleven months, if mutually agreed to. The first eleven months' period fixed by the lease expired on or about September 17, 1969. Even if, in view of the wording of the notice, it may be assumed that there Was mutual consent for further extension, that would again take us to August 17, 1970. I am merely assuming it though there is no such evidence except for the aforesaid wording of the notice- thereforee, even after expiration of the first extension, the lease expired by 17th August, 1970. There is r.o evidence that it was extended beyond this. Since clause Ii of the agreement contemplated one month's notice had to be given. thereforee, till the tenancy was terminated by notice, it continued to be contractual tenancy as opposed to a statutory tenancy.
(17) How comes the question whether the notice for two months, which does not end with the month of tenancy, is valid or not. The contract contemplated merely notice of one month being given from either side after the expiry of the lease.
(18) Section 106 of the Transfer of Property Act deals with duration of certain leases in the absence of a written contract oi local law or usage. Under Section 106, a presumption is provided for the duration of certain leases in the absence of a contract or local law or usage to the contrary. This is the sole purpose of Section 106 and while determining a lease from month to month, in the absence of a contract, it provides how it will be determined i.e. it will be determined only by a fifteen days' notice expiring with the end of the month of the tenancy. As the opening words suggest this provision comes into play only in the absence of a contract to the contrary. The contract in this case expressly provides a lease for eleven months and its extension on the same terms and conditions with mutual consent and thereafter notice of one month, and thus the question of rating presumption as to duration of the lease under section 106 of the Transfer of Property Act does not arise.
(19) Learned counsel for the appellant, however, submitted that tliere is no contract with respect to the point of time when the notice of one month should expire and, thereforee, the second part of Section 106 of the Transfer of Property Act comes into play. I am afraid, I cannot agree to this submission. For purposes of the present ciise, relevant part of Section 106 of the Transfer of Property Act is extracted below :
'106.In the absence of a contract, .......to the contrary, a lease of immovable property............shall be deemed to be a lease from month to month, terminable, on the part of either Lesser or lessee, by fifteen days' notice expiring with the end of a month of the tenancy.'
The opening words of Section 106 'in the absence of a contract to the contrary' apply to the entire section and is not restricted merely to the question of duration of the lease being from month to month. The opening part of Section 106 cannot be dissected so as to apply to the first part of the section only.
(20) As I have stated earlier, the purpose of Section 106 is merely to provide for duration of lease in the absence of a contract or local law or usage. Its purpose was not to provide as to how the lease is to be determined. It is merely a rule of presumption, in the absence of a contract to the contrary, as to the duration of the lease.
(21) Learned counsel for the appellant, however, relied on the observations of Moti Sagar, J. in Chuni Lal son of Mul Chand v. Chuni Lal son of Jaggu Mal Air 1923 Lah 659 and the observations of the learned Judges in the cases reported as Sundarji Ratanshi v. Gangubai Jeshinghbhai : Air 1951 Sau 64. Vishwa Nath v. Bishsen Dass Air 1953 J & K 15, Utility Anicles Munfacturing Co. v. Raja Bahadur Motilal Bombay Mills Ltd: : AIR1943Bom306 and Baidayanath Bank and another : v. Onkarmul Manicklal and others: : AIR1938Cal656 .
(22) So far as the view of Moti Sagar, J. in the case of Chuni Lal (supra) is concerned, it will be noticed that we have two contra later decisions of the same High Court reported in Rure Khan v. Ghulam Muhammad . Air 1924 Lah 643 which was followed in Ram Nath v. Badri Nath: Air 1928 Lah 348. in the latter tow decisions, the view of Moti Sagar, J. was not considered at all. With all due respect to the learned Judge, it may also be stated that the purpose of Section 106 of the Transfer of Property Act was not kept in view. The purpose of Section 106 is to provide an artificial rule for computing the duration of a lease in the absence of a contract to the contrary. The learned Judge, however, notice's that Section 106 of the Transfer of Propetry Act applies when there is no contract and also notices that Section 106 codifies the earlier general law on the subject. The learned Judge also notices the observations of the learned author in Fos's Law of Landlord and Tenant at page 592 but again goes back to the general law when Sec. 106 itself does not apply. Once a law is codified one has not to go back to the general law. One looks at the codified law and applies it if it applies and if it does not apply, one lias not to go to the general law but has to apply the contract as it stands.
(23) In the case of Sundarji Ratanshi's Air 1951 Sau 64, the observations of Chagia, J. in Utility Articles Manufacturing Co., : AIR1943Bom306 supra while deciding the case as a single Judge, were taken into consideration. This judgment of Chagia, J. went up in appeal before the Latters Patent Bench and the judgment of the Lalters Patent Bench proceeded on different basis and did not go into the question of construction of Section 106 of the Transfer of Property Act and, thereforee, the observations of Chagia, J., as single Judge, were hardly a precedent as the Latters Patent Bench decided the case on different aspect.
(24) The judgment in the case of Vishwa Nath: ALR 1953 J & K 15 (supra) is based on the observations of Moti Sagar, J. in tiic case of Chuni Lal and a single Judge of Bombay High Court in thc case of Utility Articles Mfg. : AIR1943Bom306 supra. The Jammu and Kashmir High Court, however, took a different view in the case reported as Munshi Ram v. Sain Dass : Air 1959 J & K 87. It is true that in a latter reported as 1959 J & K 87, the earlier case i.e. 1953 J & K 15 was not considered but the same question came up again for consideration before a Bench of Rajasthan High Court in the case reported as Sliraj Mal v. Sita Ram and others: , and the learned Judges of the Rajasthan High Court expressly dissented from the view expressed by Saurashtra High Court in A.I.R. 1951 Sau 64 (suora) and relied on the view expressed in Seik H Kasam v. Haji Jusuf : Air 1924 Nag 220 and Ram Nath v. Badrintah: A.I.R. 1928 Lah 348 (supra). This view of the Rajasthan High Court was again affirmed in Seth Rajmal v. Dr. Krishan Swaroop: a learned single Judge. The same view was also taken in Madhav Rao Balwantrao Daphale v. Bhagwandas Surajmal : AIR1961MP138 where the learned single Judge took the view that where there is an agreement as to the period of notice, it is a contract to the contrary for all purposes of Section 106 of the Transfer of Property Act.
(25) The matter also came up before the Patna High Court in the case reported as Ganesh Sonar v. Purnendu Narayan Singha and others : Air Patna 201(15) where Ramaswami, C. J. and N. L. Untwalia, J. (as their Lordships then were) took the view that in the case of a contract providing for a period for termination of tenancy. Section 106 of the Transfer of Property Act goes out of the picture.
(26) The aforesaid view was also taken in the cases reported as Arunachala Naicker v. Ghulam Mahmood Saheb: : AIR1951Mad408 and Nani Gopal Bhattacharjee v. Smt. Rani Ujjala Debi and others : Air 1956 Tri 30.
(27) The view of Panckridgc, J, in the case reported as Baidyanath Basak and another v. Onkarmul Manicklal and others: : AIR1938Cal656 (supra), in fact, goes against the submission of the learned counsel for the appellant. On the facts of that case, the learned judge took the view that the agreement was either a definite agreement for monthly tenancy or it could not be so construed; it certainly was not a contract to the contrary within the meaning of Secion 106 of the Act.
(28) Section 106 of the Transfer of Property Act cannot apply where a lease is expressed to be determinable by notice but the notice is not of the kind required by this Section. The parties may provide for a longer or a shorter notice than that required under this Section for determination of the lease. In either case. Section 106 will go out completely.
(29) As I have stated earlier. Section 106 is merely a deeming provision and provides an artificial period as to duration of lease and its determination. Since the notice given is in accordance with the contract, it is perfectly valid even if it did not end with the end of the month of the tenancy.
(30) For these reasons, the appeal fails and is dismissed with costs. The appellant is, however, granted one month's time to vacate the premises.