Skip to content


Faizubhai Mahmadbhai Vs. Balkrishna Naradlal Bhatt - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtGujarat High Court
Decided On
Case NumberSecond Appeal No. 59 of 1965
Judge
Reported inAIR1972Guj9; (1972)0GLR137
ActsSaurashtra Rent Control Act, 1951 - Sections 12, 12(1) and 12(2); Transfer of Property Act, 1882 - Sections 111
AppellantFaizubhai Mahmadbhai
RespondentBalkrishna Naradlal Bhatt
Appellant Advocate J.R. Nanvaty, Adv.
Respondent Advocate H.P. Sompura, Adv.
Cases ReferredMaganlal Naranda Thakkar v. Arjan Bhanji Kanbi
Excerpt:
tenancy - rent - sections 12, 12 (1) and 12 (2) of saurashtra rent control act, 1951 and section 111 of transfer of property act, 1882 - whether rent collector had right to file suit for eviction under section 12 against tenant on ground of non-payment of rent - landlord who had vested in him right to possession under general law is person who becomes entitled to recovery of possession - landlord includes rent collector - contractual tenancy validly determined by valid notice to quit - question referred answered in affirmative. - - the defendant failed to prove that he had executed the rent-note on the aforesaid representation. the defendant has failed to prove the alleged expenditure. the bombay as well as the saurashtra acts were evidently enacted, inter alia, with the object of.....j.m. sheth, j.1. this appeal arises out of the judgment and decree passed by the learned district judge, junagadh in civil appeal no. 150 of 1964, where under he confirmed the judgment and decree passed by the learned first joint civil judge, junior division, junagadh, in civil suit no. 32 of 1963. that suit was filed by one munshi abdulla miyan mahmad miyan, describing himself as the 'rent collector' of the house of datar estate committee of junagadh. the suit was filed for recovery of possession of the leased premises and arrears of rent on the ground that the appellant-tenant was a tenant in arrears. a valid notice to quit was given and the contractual tenancy was determinded. a notice contemplated under section 12 (2) of the saurashtra rent control act, 1951 (which will be hereinafter.....
Judgment:

J.M. Sheth, J.

1. This appeal arises out of the judgment and decree passed by the learned District Judge, Junagadh in Civil Appeal No. 150 of 1964, where under he confirmed the judgment and decree passed by the learned First Joint Civil Judge, Junior Division, Junagadh, in Civil Suit No. 32 of 1963. That suit was filed by one Munshi Abdulla Miyan Mahmad Miyan, describing himself as the 'Rent Collector' of the house of Datar Estate Committee of Junagadh. The suit was filed for recovery of possession of the leased premises and arrears of rent on the ground that the appellant-tenant was a tenant in arrears. A valid notice to quit was given and the contractual tenancy was determinded. A notice contemplated under section 12 (2) of the Saurashtra Rent Control Act, 1951 (which will be hereinafter referred to as 'the Act') was given. That notice was not complied with and hence the suit was filed as contemplated under section 12 (2) of the Act. That notice was given under the instructions of both the rent controller and the chairman of the Committee.

2. The contention raised by the tenant by his written statement. Ex. 8, was that a rent collector of the Datar Estate has no right to file a suit. The suit property did not belong to the Datar Estate at all. On the land on which the structure stood, which was originally a hut, his grand-mother was staying for the last 35 years. He had reconstructed the house. The land was the Government land. It was the municipal land. It was not the property belonging to the Datar Estate and he was not the tenant of the Datar Estate. It was represented to him on behalf of the said Estate that if he executed such a rent note, that would help said Estate in extending the extent of its property and that is how the rent note came to be executed by him in favour of the Datar Estate. He had not paid the rent due as the titled of the Datar Estate was under challenge and the Municipality was claiming its title over the property. He should be given credit for the amount spent by him for the reconstruction and repairs.

3. The learned trial Judge found that the plaintiff who is found to be a rent-collector of the Datar Estate, has a right to file such a suit in view of the provisions of the Act. The defendant failed to prove that he had executed the rent-note on the aforesaid representation. The defendant is estopped from challenging the title of his landlord. The defendant has failed to prove the alleged expenditure. He is not entitled to get any such amount even if he spent it, it being for reconstruction of the house and not for repairs. The defendant was not ready and willing to pay the rent. In view of these findings a decree for possession and for arrears of rent and for mesne profits was passed against the defendant. The suit was decreed with costs.

4. Against that judgment and decree, the defendant preferred Civil Appeal No. 150 of 1964. The learned District Judge who heard that appeal, confirmed that judgment and decree of the trial Court and dismissed the appeal. Each party was ordered to bear its own costs in the appeal. The defendant was directed to hand-over possession on or before 1st February, 1965.

5. Against that judgment and decree, the defendant has preferred the present appeal to this Court.

6. Our learned brother D. P. Desai, J.. has referred this matter to a larger Bench as he was of the opinion that the decision given by a single Judge of this Court in Civil Revn. Appln. No. 841 of 1966. D/- 26.8.1970 (Guj) was not correct and according to him, such a rent-collector was not competent to file such a suit.

7. In his referring judgment, our learned brother D. P. Desai, J.. has observed that who question only arise for determination in this second appeal and they are : (1) whether a person, who is a rent collector of properties let out to a tenant, which properties are governed by the Act has a right to file a suit for eviction of the tenant in his own name without impleading the real landlord, as a party, in a case, where the tenant has been found to be in arrears of rent, and (2) whether in the facts of this case, in the conclusion of the Courts below as regards construction of the rent-note. passed by the appellant tenant in favour of the real landlord that the tenant was in arrears of rent and was therefore, not entitled to the protection of the aforesaid Act, is correct.

8. So far as the construction put on the relevant term of the rent note was concerned, he has agreed with the two Courts below, observing:

'Therefore, I feel that the construction put upon this rent-note by the two Courts below, is quite reasonable. If that is so, the claim of the defendant tenant to set off the amount spent by him in raising the structure anew from the foundation, would not prevail. In that view, both the Courts were right in taking into consideration the conduct of the defendant on the question of his readiness, and willingness to pay rent. This conduct, as observed above, consisted of denying the titled of the landlord and also denying the contract of tenancy, on which the suit was based. If taking these circumstances into consideration the Courts below came to the conclusion that the defendant was not ready and willing to pay rent, there is no reason why I should differ from that finding.'

It is no doubt true that he has referred to us the entire matter.

9. Mr. J. R. Nanavati, appearing for the appellant - defendant, raised a contention before us whether a rent collector had a right to file a suit for eviction under section 12 of the Act against the tenant on the ground of non-payment of rent. He also submitted before us that the findings of the two Courts below that the plaintiff was the rent-collector of the Datar Estate were erroneous and were not supported by evidence. He had taken us through the evidence of the plaintiff. Ex. 32, Abdul Kadar, Ex. 33, Ahmed-bin-Mahomad, Ex. 34. Ultimately, he states that he does not press this contention and he only pursues his contention that such a rent-collector of the Datar Estate has no right to bring such a suit for eviction.

10. It is significant to note that a contractual tenancy has been validly determined. There is no dispute in that behalf raised before us. Argument advanced on behalf of the appellant is that the right to possession had accrued in favour of the landlord, meaning thereby, that the lessor, i.e. the owner of the property, i.e. the Datar Estate. That was on account of valid determination of the contractual tenancy. The tenant was obliged to hand-over possession on determination of such tenancy to the lessor. The moment such a demand is made and that demand is not complied with, cause of action would no doubt arise in favour of the lessor to file a suit for recovery of possession. In view of the provisions of the Act, fetter was put on such a right to recovery of possession of the lessor. His right to recover possession was postponed in view of the provisions of the Act. The moment the tenant lost his right to protection under the Act, no new right is created in favour of the rent collector to file any suit. It is contended by Mr. Nanavati vehemently that no new right is created under section 12 of the Act and consequently this 'rent-collector' who falls within the definition of the word 'landlord' given in section 5 (1) of the Act, had no right to file such a suit. No such right has been created in his favour under the provisions of the Act. It was, therefore, contended by him that it is the lessor, meaning thereby, that the owner of the property in question, was the only person who will be entitled to file such a suit. That being the position, the suit filed by the rent-collector was not competent and consequently, the two Courts below were not justified in passing a decree for eviction. He has adopted the reasoning of our learned brother D. P. Desai, J. in the referring judgment.

11. To appreciate this contention, therefore, we would refer to it in extenso:

'The Bombay as well as the Saurashtra Acts were evidently enacted, inter alia, with the object of protecting tenants, who were ready and willing to pay rent and observe other conditions of tenancy from eviction. So long as the contract of tenancy between the landlord, i.e. the real landlord, and the tenant is subsisting, the possession of the tenant would be protected under the contract itself. The threat to this possession arises only when the landlord terminates the contract, or where the contract comes to an end. When the contract is terminated or comes to an end, the landlord gets the right of re-entry or the right to set possession of the rented premises. This right arises under the general law and has been recognised by S. 108 (q) of the Transfer of Property Act which says:

'108 (q) - On the determination of the lease, the lessee is bound to put the lessor into possession of the property.' It was with a view to put fetter upon this right arising under the general law that the Acts in question came to be enacted. Therefore, the definition of the tenant was so devised as to include, inter alia, a person remaining in possession with or without the assent of the landlord after the determination of the lease. Such a tenant, for the sake of convenience, may be said to be a statutory tenant. And Section 12 (1) of the Act, which has been reproduced earlier, puts a fetter upon the landlord's right to get a possession, which has arisen under the general law, by denying to the landlord the said right so long as the tenant pays and is ready and willing to pay the amount of standard rent and the permitted increases. If any, and observes and performs other conditions of the tenancy in so far as they are consistent with the provisions of the Act. The denial of the right to obtain possession is enacted by the phrase - 'a landlord shall not be entitled to the recovery of possession.' The most important provision for our purpose is the phrase 'entitled to the recovery of possession.' It is noteworthy that same phrase occurs in the opening portion of Section 13 (1) also, which reads:

'Notwithstanding anything contained in this Act, a landlord shall be entitled to recover possession of any premises if the Court is satisfied.' Section 13 remove the fetter placed upon the landlord's right to recover possession by section 12 of the Act in certain specified contingencies, which are to be found in clauses (a) to (I) of Section 13. Therefore, the denial of the right to recover possession by Section 12 is not effective in the aforesaid contingencies. If we, therefore, read Sections 12 and 13 together, it follows that in certain specified contingencies mentioned in Section 13, the landlord can enforce his right to possession of the premises, which had arisen under the general law upon the termination of the contract of tenancy. In other cases this right is fettered by denying to the landlord the enforcement of the right, In my opinion, the phrases 'entitled to the recovery of possession', and 'entitled to recover possession' occurring in sections 12 and 13 respectively postulate the existence of a right to possession. Having postulated that right to possession the phrase in one case puts a letter upon that right by denying its enforcement in a Court of law. In another case, whether certain specified contingencies exist, the law recognises the right to possession and allows its enforcement. Therefore, there is no absolute right to possession of premises upon termination of a contract of tenancy in view of the legislation, in question. The enforcement of right to possession is restricted to certain specified contingencies mentioned in S.13. the right can also be enforced in the case of a person who neither pays nor is ready and willing to pay the standard rent, and, who does not observe the other conditions of the tenancy. If we read phrase 'entitled to recover possession' as merely an enabling provision in a case covered by S.13 and as a restricting provision in a case covered by S.12, it is clear that the proper meaning to be given to this phrase is to get possession by enforcement of the right to possession, which had arisen under the general law. So far, as the definition of the term 'landlord' contained in Section 5 (1) of the Saurashtra Act is concerned, it may be noted that the definition only takes in, inter alia, a person who is entitled to receive rent in respect of any premises. Therefore, for certain purposes provisions enacted in the Act., a rent collector, may be included within the definition of tenant. But it is a fallacy to think that for the purposes of all the provisions contained in the Act, a rent-collector is included within the definition of landlord.'

He is of the opinion that the word 'landlord' used in Sections 9, 10 and 11 would take in and include such a rent collector. So far as Sections 12 and 13 of the Act are concerned, he would not be included. According to him, the 'landlord' contemplated by Sections 12 and 13 of the Act is a 'landlord' who is or would be 'entitled to the recovery of possession of any premises'. It is not the purport of any of S.12 or 13 to confer a new right to recover possession on persons, who are not real landlords, and who do not derive title to the rented premises from the real landlord, i.e. persons like servant of he landlord or rent collectors. In fact, it was not necessary at all to confer, in terms, a separate , and if one may say so, a special right to recover possession on such persons because the right to recover possession would already vest in the real landlord on the determination of the tenancy. If he were to hold that such a right is given by the terms of Sections 12 and 13 of the Act, it may mean that so far as recovery of possession from the tenant is concerned there are two distinct rights recognised by the legislature vesting in two persons. So far as the right to recover possession under the general law is concerned, that right vests in the landlord and therefore, the real landlord is also entitled to enforce that right under Section 12 and 13. So far as the right to recover possession enforceable by the rent-collector is concerned, that right may vest in the rent-collector independently of the landlord so that he may exercise the right without joining the landlord as a party to the suit. I do not think that the object of the legislation was to create a special right or recovery of possession and vest it in persons who would not be the real landlords. It is well settled that the legislature has only put fetters upon the general right of the real landlord to recover possession arising under the general law. Therefore, in his opinion, the phrase entitled to the recovery of possession is not enacted to confer a special right on a rent collector. Therefore under Section 12, the landlord. Therefore under Section 12, the landlord who had vested in him a right to possession under the general law, is the person who becomes entitled to the recovery of possession, i.e. entitled to enforce that right, if the tenant does not pay or is not ready and willing to pay the amount of standard rent and permitted increase, or if he does not observe and perform the other conditions of the tenancy, which are not inconsistent with the provisions of the Act.

12. After referring to certain provisions of section 13 (1) of the Act and especially the explanation given for the purposes of Clause (g) of Section 13 (1) of the Act. Occurring in sub-section (2) thereof, he has found that it has been done by way of abundant caution. Even in the absence of such an explanation, the purpose could have been served in view of the subject or context in different clauses of Section 13 (1) of the Act. That abundant caution, according to him, had to be exercised because of the definition of the term 'landlord' in very wide terms made by Section 5 of the Act. He has also referred to clause (I) of Section 13 (1) of the Act in support of his conclusion in that behalf. Finally, he has observed:

'In my opinion, it would be repugnant to the context in which the word 'landlord' is used in Sections 12 and 13 to interpret that word strictly according to the definition given by Section 5.'

13. There is no dispute about the principle enunciated that after the contractual tenancy is determined, or the contractual tenancy comes to an end, a right to possession accrues in favour of the lessor, i.e. the real landlord, as referred to by the learned referring Judge. There is no doubt also that in view of the provisions of Section 108 (q) of the Transfer of Property Act, on the determination of the lease, the lessee is bound to put the lessor into possession of the property. It is, therefore, evident that on determination of the lease, the right accrues in favour of the landlord, i.e. the lessor to get possession of the leased property immediately. When such a demand is made and that demand is not complied with by the lessee the cause of action arises for filing a suit for recovery of possession. But for the provisions of the Act which came to the rescue of such a person whose tenancy has been determined, to remain in possession of the property, the landlord, i.e. the lessor could have enforced his right to recover possession and got delivery of possession through a Civil Court under the general provisions of law. The statute steps in. Such a person whose contractual tenancy has been determined or whose tenancy has come to an end, it given a status of irremoveability till certain statutory obligations imposed on him under the provisions of the Act are performed by him.

14. The material parts of S.12 of the Act for our purposes are S.12 (1) and Section 12 (2) which read as under:

'12 (1) 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 consistent with the provisions of the Act (2) No suit for recovery of possession shall be instituted by a landlord against a tenant on the ground of non-payment of the standard rent or permitted increases due, until the expiration of one month next after notice in writing of the demand of the standard rent or permitted increases has been served upon the tenant in the manner provided in S.106 of the Transfer of Property Act, 1882.'

In view of the provisions of Section 12 (1) of the Act, a fetter is put upon the right of a landlord to recover possession which had already accrued in his favour on account of valid termination of the tenancy. Under the general provisions of law, the tenant was obliged to deliver possession of the leased premises immediately consequent upon the termination of the contractual tenancy, and the landlord had a corresponding right to recover possession through the Court. This Act enacted for the protection of tenant from being evicted on account of acute shortage of houses gave a statutory right to the tenant to remain in possession of the property in spite of such determination of the contractual tenancy till he 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 which are consistent with the provisions of this Act. Statutory protection is given to the tenant. By the statute itself, such a right is created in his favour which will result in a statutory obligation against the landlord. So far as the landlord is concerned, he will not be entitled to recovery of possession and will not be entitled to remove such a statutory tenant unless such a tenant forfeits this statutory right of his by not performing the obligation imposed upon him under the Act. When such a tenant who has a mere personal right to remain in possession in view of this statutory provision of the Act, does not perform the obligation imposed upon him which entitles him to remain in possession and which disentitled the landlord to recover possession, the landlord becomes entitled to take steps to recover possession as contemplated under the Act. In our opinion, it is not the enforcement of his right under the general provisions of law. It is a statutory right that accrues in his favour to remove such a statutory tenant who was entitled to protection under the statute, on account of the non-fulfilment of the obligations imposed upon him. In our opinion, on account of such non-fulfilment of the obligations imposed against such a statutory tenant, the tenant forfeits his right and the corresponding statutory right arises in favour of the landlord to take a remedy under the provisions of the Act and remove such a tenant, by complying with the provisions of this Act. It is significant to note that such a landlord is not immediately entitled to recover possession. He is required to give a notice as contemplated by Section 12 (2) of the Act, making a demand for such arrears of rent. If the tenant who was a defaulter, complies with that demand, within a period of one month after the receipt of such notice, the landlord gets no right to recover possession from him and remove him from the premises. It is only if the tenant does not comply with it, then the landlord is permitted to file a suit. It is significant to note that the tenant was in arrears of rent from 1-7-1956 till 31-12-1962. A notice, terminating the tenancy, was given to the defendant on 28-11-1962. The tenancy was terminated with effect from the midnight of 31-12-1962. The provisions of the Act, in our opinion, point to the conclusion that when such a suit permitted to be filed is filed, it is for the enforcement of the right created under the Act. The liability of the statutory tenant that is the forfeiture of his right to statutory protection arises under the provisions of the Act. His right to remain in possession of the premises as a statutory tenant is lost as a result of his non-fulfilment of statutory obligation under the Act. We are, therefore, of the opinion that it could not be said that the landlord, by filing such a suit, is enforcing his right to recover possession under the general provisions of law. He is, in our opinion, enforcing his right to recover possession as a statutory tenant entitled to statutory protection did not discharge the statutory obligation. The right, therefore that is being enforced is a statutory right under the Act and such a right can be enforced not in an ordinary civil Court, but can be enforced in a special Court constituted under the Act. We have, therefore, to see whether the word 'landlord' used in S.12 (1) as well as Section 12 (2) of the Act would include a 'rent-collector' or not.

15. Section 5 (1) of the Act material for our purposes, reads:

'In this Act unless there is anything repugnant to the subject or context- (1) 'Landlord' means any person who is for the time being, receiving or entitled to receive, rent in respect of any premises whether on his own account or on account or on behalf or for the benefit of any other person, or as a trustee, guardian or receiver for any other person, or who would so receive the rent if the premises were let to tenant; and includes any person not being the tenant who for time to time derives title under a landlord; and further includes in respect of his sub-tenant a tenant, who has sub-let any premises.'

A perusal of this definition clearly indicates that a special meaning has been assigned to the word 'landlord' by this statute and that meaning has to be assigned to it for the purpose of this Act, unless there is anything repugnant to the subject or context. It is an admitted position that a 'rent-collector' is included within the special definition of the word 'landlord' given in section 5 (1) of the Act. We have therefore to consider whether there is anything repugnant to the subject or context in Section 12 (1) or 12 (2) of the Act which would justify us to come to the conclusion that a different meaning was intended to be assigned to the word 'landlord' used therein.

16. The statute itself provides a dictionary and in that statutory dictionary, meaning assigned to the word 'landlord' is such that it would undoubtedly include a 'rent-collector'. According to the rules of interpretation of statues, this meaning will have to be assigned while construing the provisions for the purposes of the Act unless we can give another meaning finding that this dictionary meaning finding that this dictionary meaning is repugnant to the subject or context. In our opinion, it will not be proper for us, in this case, the express the definite opinion, as to what would be meant or what was intended to be meant by the use of the word 'landlord' used in Sections 9, 10, 11 and different clause of Section 13 (1) of the Act. That will depend upon the subject or context. Surface it to say, that the legislature intended to give the dictionary meaning to word 'landlord' for the purpose of the Act, unless there is anything repugnant to the subject or context in the relevant section or clause.

17. Clause 13 (1) (g) of the Act reads:

'(1) Notwithstanding anything contained in this Act, a landlord shall be entitled of recover possession of any premises if the Court is satisfied - (g) that the premises are reasonably and bona fide required by the landlord, for occupation by himself of by any person for whose benefit the premises are held.'

If the word 'landlord' was given the dictionary meaning, it would mean that the rent-collector could get the possession of the leased premises even if he owner, i.e. the lessor, does not require that leased property for occupation of himself or of any person for whose benefit he holds the premises. Such a rent-collector could get such possession for the occupation of himself, i.e. the rent-collector. The legislature did not intend to give such a right to a rent -collector, and that is precisely the reason why the legislature has advisedly given an explanation to Section 13 (2) of the Act which reads:

'For the purposes of Clause (g) of sub-section (1), the expression 'landlord' shall not include a rent-farmer or rent-collector or estate-manager.'

It is true that it can plausibly be urged that this may have been done by way of abundant caution as the legislature never intended that a rent-collector should evict the tenant for his own personal requirement and not for the lessor.

18. In the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 (which will be hereinafter referred to as 'the Bombay Act'), there was one more addition made by explanation (a) to sub-section (2) of Section 13 of the Bombay Act. If reads as under:

'For the purposes of Clause (g) of sub-section (1)- (a) a person shall not be deemed to be a landlord unless he has acquired his interest in the premises at the date prior to the beginning of the tenancy or the first day of January 1964, whichever is later, or if the interest has devolved on him by inheritance or succession, his predecessor- title had acquired the interest at a date prior to the beginning of the tenancy or the first day of January 1964, whichever is later.'

So far as Section 12 of the Act is concerned. We do not find anything repugnant to the subject or context which would justify us to restrict the meaning of the word 'landlord' given in the statute itself of section 5 (1) of the Act.

19. In Civil Revn, Apln. No. 646 of 1968, D/-21-12-1970 (Guj), by me as a single Judge, there was an occasion to consider the question whether the word 'landlord' used in Section 12 of the Bombay Act could be given a meaning different from the meaning given in the definition clause, in the context of facts and circumstances whether the landlord would includes a 'transferee' of the leased premises with a right to recover the arrears of rent. After referring to the provisions of Section 12 of the Bombay Act, the observations made are:

'There is nothing repugnant to the subject or context in Section 12 of the Act to indicate that the word 'landlord' referred to therein should be given a meaning other than the meaning given in the definition clause (3) of Section 5 of the Act.

If we now refer to Section 13 of the Act, there is an indication that wherever the legislature intended to give a different meaning to the word 'landlord' it has expressly done so. In section 13 (1) of the Act, the word 'landlord' has been used. Section 13 of the Act enumerates several grounds on the basis of which the 'landlord' is entitled to recover possession of the leased premises. One of them is Section 13 (1) (g).'

After referring to explanation clauses (a) and (b) given to Section 13 (2) of the Bombay Act, it is observed:

'It is significant to note that if this explanation had not found place in this section, a person who has acquired interest even after the first day of January, 1964, would be a 'landlord' within the meaning of Section 5 (3) of the Act. Similarly, a rent-farmer or rent-collector would also be a landlord within the meaning of the word 'landlord' defined in that clause. For the purposes of Section 13 (1) (g) the legislature intended to exclude such persons and that is why a specific provision is made therein. The legislative intent is thus indicated by giving this explanation. That also fortifies my, conclusion that the word 'landlord' referred to in Section 12 of the Act would have the same meaning as that finds place in Section 5 (3) of the Act. It is therefore, evident that the plaintiff who has acquired interest in this property by a sale-deed, Ex. 91 and has acquired a right to recover the arrears of rent due from 1-7-1959, would be included within the meaning of the word 'landlord' given in Section 5 (3) of the Act and consequently in view of the provisions of Section 12 of the Act he would he entitled to get possession on this ground. He had, after acquisition of his rights, given a notice as contemplated by Section 12 (2) of the Act. I am of the opinion that a distinction can be made between a person who is only an assignee of the arrears of rent and a person whom the right to recover arrears of rent as well as the property itself have been transferred. The obvious reason is that in the letter case it is not only the right to recover rent that is transferred, but on account of selling of the property, the right to get possession is also transferred. The person to whom these rights have been transferred, would be a landlord within the meaning of the word 'landlord' given in Section 5 (3) of the Act. Such a landlord has been given a right to recover possession on the ground of non-payment of rent. The tenant is bound to pay such rent to such a landlord when demanded within one month after the receipt of the notice, as contemplated by S.12 (2) of the Act and if he does not comply with such notice, in my opinion, he is not entitled to claim protection under the Act.'

20. The scope and ambit of Section 12 of the Act, in our opinion, is very material and has got material bearing on the question that arises for decision.

21. In Shah Bhojraj Kuverji Oil Mills & Ginning Factory v. Subhash Chandra Yograj Sinha, AIR 1961 Sc 1956, the Supreme Court, while considering the question whether S.12 of the Act is retrospective or not, observed:

'Section 12 (1) contained in part II of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 enacts a rule of decision, and it says that a landlord is not entitled to possession if the tenant pays or shows his readiness and willingness to pay standard rent and to observe the other conditions of the tenancy. The word 'tenant' is defined in the Act to include not only a tenant, whose tenancy subsists but also any person remaining, after the determination of the lease, in possession with or without the assent of the landlord. Thus, a statutory tenant is within the rule enacted by Section 12 (1) and entitled to its protection.

Sub-section (1) of S.12 contained in Part II of the Act applies from the date on which Part II of the Act is extended to the particular area by a notification issued under Section 6. The sub-section says 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 standard rent, etc., and observes and performs the other conditions of the tenancy. In other words, no decree can be passed granting possession to the landlord, if the tenant fulfills the conditions above mentioned. The point of time when the sub-section will operate is when the decree for recovery of possession will have to be passed. Thus, the language of the sub-section applies equally to suits pending when Part II comes into force and those to be filed subsequently. The contention that the operation of Section 12 (1) is limited to suits filed after the Act comes into force in a particular area cannot be accepted. 'Use of the phrase 'shall not be entitled to the recovery of possession' is significant to note. The Court will not be entitled to pass a decree for eviction in view of these provisions of the Act. It does not prohibit the filing of a suit, but the relief regarding possession cannot be given in such a suit filed, if the statutory tenant is fulfilling the obligation imposed under this sub-section (1) of S.12 of the Act.

22. In Emperor v. Dattatraya Sitaram Biniwala, 50 Bomb LR 169 = (AIR 1948 Bom 239) a Division Bench of the Bombay High court, while dealing with the provisions of Section 10 of the Bombay Rent Restriction Act, has observed at page 172:

'During the course of arguments, Mr. Desai has raised a point of law and it is this. According to the evidence of Kalewar, the landlord, no one has authority to consent to the transfer of a room standing in the name of one person to a different person. It is, therefore, argued that as the accused is merely a collector of rent and not a landlord, acceptance of a premium by him is not within the purview of Section 10 (4) of the Bombay Rent Restriction Act. The contention is that any 'person' contemplated by Section 10 (1) is the person who has the power or authority to grant, renew or continue a tenancy and it is he who is prohibited from accepting a premium as a consideration for such grant, renewal or continuance. In other words, the submission is that the word 'person' in effect means a landlord and this submission is sought to be reinforced by reference to sub-section (2) of S.10 which enables a person who has paid a premium to recover it from he 'landlord'.'

After referring to certain English decisions and the language of the corresponding Section 8 (1) of the Increase of Rent and Mortgage Interest (Restriction Act, 1920, at page 174, the pertinent observations made are:

'The most striking difference between the two Acts lies in the definition of the word 'landlord'. Under the English Act 'landlord' includes a person deriving a title under landlord (Section 12 (f) and also includes, in relation to a dwelling house, a person other than a tenant who is or would be but for this Act entitled to possession of the dwelling house (Section 12 (g). The whole scheme contemplates relation between such landlord and tenant. In such a scheme, the imposition of a liability on a third person under Sec.8 (1) was somewhat foreign to the purpose of the Act and restricting the operation of Section 8 (1) to landlord as defined in that Act made the section consistent although the words used in that section were reasonably capable of the other broader construction. The Bombay Act, however, uses the word landlord in a much wider sense. Under Section 4 (1) the expression 'landlord' means:

'any person for the time being entitled to receive rent in respect of any premises whether on his own account or on account of or on behalf of or for the benefit of any other person.' Thus a person entitled to receive rent on behalf of any person is a landlord within the meaning of this section. When the expression has been used in that wider sense throughout the Act, it would introduce a discordant element if Section 10 (1) was restricted in its application to 'landlord' in the ordinary sense of the term as meaning the owner.'

23. Similar question arose for decision before the supreme Court in Vithal Krishnaji Nivendkar v. Parduman Ram Singh, 64 Bom LR 770 = (1964-1 Cri LJ 491 (SC). Section 8 (1) of the Bombay Act was the subject-matter of interpretation. At page 771, the contention raised in that case has been noted by stating:

'The appellant admits the receipt of this amount of Rs.3,251/- for donation to the building fund. He contended that he was not a 'landlord' as defined in the Act.'

At page 772, it is observed:

'The contention that the appellant does not come within the expression 'landlord' defined in sub-section (3) of S.5 had no force. The expression 'landlord' includes a person who is receiving, or is entitled to receive, rent in respect of any premises on account, or on behalf, or for the benefit of any other person, or as a trustee for any other person. The appellant was a trustee of the Sangh. He was receiving rent on account and on behalf of the Sangh and clearly, therefore, he comes within the expression 'landlord' as defined in the Act.'

It appears to us that to achieve the objects of the Rent Act and to see that rigours of this Act are tightened up and the interests of the tenants are well protected, as contemplated by this Act, this, wide, definition of the word 'landlord' has been given in the Act.

24. We will now refer to certain observation made by the Supreme Court in Bhaiya Punjalal Bhagwanddin v. Dave Bhagwatprasad Prabhuprasad : [1963]3SCR312 . We will quote the observations made therein in extenso as considerable emphasis has been laid by Mr. Nanavati on the observations made in this decision. At pages 122 and 123, in paras 8 and 9, the pertinent observations made are:

'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 been 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 tenancy continued to be according to the Indian Calendar according to the contract, or had been according to the British Calendar in view of Section 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 according to the terms of the contract, it comes to an end. Section 111 of the Transfer of Property Act states 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 of determine the lease, or to quit, or of intention to quite, 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 the right to evict the tenant and recover possession. This Act was enacted for the purpose of controlling the rents and repairs of certain premises and of evictions due to the tendency of landlords to take advantage 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 necessity for providing any further protection in the Act against his eviction so long as his tenancy continued to exist under the contract.'

These observations underlines by us have to be borne in mind to understand the significance of the observations that are made later on in para 9 to which we will not make reference:

'Sub-section (1) 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 consistent with the provisions of the Act. It creates a restriction on the landlord's right to the recovery of possession. Where the landlord will have such a right is not proved by it. Ordinarily, the landlord will have a right to recover possession from the tenant when the tenancy had determined. The provisions of this section therefore will operate against the landlord after the determination of the tenancy by any of the modes referred to in Section 111 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 recover 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 given by this section which will be useful to the tenant after his tenancy has determined. The section does not create a new right 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 right to evict the tenant for default in payment of rent will arise only after the tenancy is determined and the continued and the continued possession of the tenant is not on 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-section (1) requires of him. The landlord is restricted from evicting the tenant till the tenant does not do what he is required to do for peaceful possession under sub-section (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 Section 12 if his tenancy has not been determined already. If follows that whenever a tenant acts 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 determining his tenancy and also serve him with a notice under sub-section (2) of S.12 of the Act.'

25. Mr. Nanavati has laid considerable emphasis on the observations made by the Supreme Court that this section does not create a new right in favour of a landlord to evict the tenant, when the tenant does not pay rent. It was urged that the right to recover possession of the suit premises did not arise under the Act as no such new right had been created under the Act. A right to possession arose in favour of the lessor, i.e. the owner, on account of determination of the tenancy by a valid notice to quit. That right arose in favour of the Committee of the Datar Estate and did not arise in favour of a rent-collector of that Estate. If is, therefore, the Committee or the Chairman of that committee who could file a suit for recovery of possession when the statutory tenant did not fulfil the obligations contemplated under the Act. In our option, this argument, though it may appear to be attractive at the first blush, is not a well founded argument. The Supreme Court has laid emphasis on the position of law that this Act does not create such a right under the Act in favour of a landlord, so that the tenant whose contractual tenancy is subsisting and is entitled to protection under the contract itself, will lose that protection only on account of non-payment of rent. It is only after the tenant loses that contractual protection on account of termination of the tenancy or the tenancy having come to an end and is entitled to protection under the statue itself to remain in possession of the property till he fulfils the obligations imposed by the Act, that protection will be lost on account of non-fulfilment of the obligations. Determination of contractual tenancy is a condition precedent. It is in that context that the Supreme Court has observed that it does not create any new right in favour of the landlord enabling him to take the benefit of the provisions of this Act even though the tenant is entitled to protection under the contract itself. We are, therefore, of the opinion that this decision does not run counter to our conclusion in any manner.

26. At page 124, the observations made in Dr. K.A.Dhairyawan v. J.R.Thakur : [1959]1SCR799 of that report have been quoted. They are:

'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 remain in possession of the land, although the period of the lease had come to an end, the 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 none the less by a tenant of the land 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 after the expiry of the period for which it was given. The lessee'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 restriction on the landlord's right to recover possession under Section 12 of the Act operates after he has determined the tenancy and that till then the rights between the parties with respect to eviction would be governed by the ordinary law.'

These observations, in our opinion, are be applied for testing the validity of the argument advanced by Mr. Nanavati. After the determination of the contractual tenancy, the lessee's possession is by virtue of the provisions of the Act and not under the contract. On account of the determination of the tenancy, the lessor's right to get immediate possession has come into existence. As this statute steps in, a fetter is placed on that right of the lessor and a statutory right is created in favour of such a statutory tenant to remain in possession of the property till he fulfils the obligations imposed upon him under the provisions of the Act. It is thus evident that it is a necessary consequence of this view that the restriction on the landlord's right to recover possession under Section 12 of the Act operates after the contractual tenancy is determined. Till then, the rights between the parties with respect to eviction would naturally be governed by the ordinary law, i.e., by the general provisions of law. But thereafter, the rights would be governed under the provisions of the Act, as the tenant has been given a personal right to remain in possession of that property till he fulfils the obligations imposed under the Act. The cause of action would arise in such a case in favour of a landlord when the statutory tenant does not fulfil his obligations imposed upon him under the Act and it is that cause of action which entitled the landlord to take such a proceeding for evicting him and that could be done by complying with the provisions of Section 12 (2) of the Act. It is, therefore, evident that it is a case to enforce rights and obligations under the Act and not under the general provisions of law.

27. At page 125, in para 16, the pertinent observations made are:

'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 possession as he is bound to do under law, and there arises a necessity 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 Section 12 deal with the stage of the recovery 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 was no 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 possession 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 arise, 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.'

This distinction between the right to possession and the right to recover possession has got to be borne in mind. In the instance case, by determining the contractual tenancy, the right to possession had already accrued in favour of the lessor. The lessor could not get immediately the delivery of the property as the statute created a right in favour of such a statutory tenant to remain in possession till he fulfils the obligations imposed upon him under the Act. It is only when he commits a breach and does not fulfil these obligations, a right to recover possession would accrue in favour of the landlord under the Act. That distinction has got to be borne in mind and it is that right that is being enforced in the present case and that is under the provisions of the Act.

28. Other significant observations made are in para 19. They are:-

'We are, therefore, of opinion that so long as the contractual tenancy continues a landlord cannot sue for the recovery of possession even if Section 12 of the Act does not bar the institution of such a suit and that in order to take advantage of this provision of the Act he must first determine the tenancy in accordance with the provisions of the Transfer of Property Act.'

These observations lend support to our conclusion reached earlier that Section 12 (1) of the Act does not bar the institution of the suit. It only puts a fetter on the right of the statutory tenant fulfills the obligations imposed upon him under the Act.

29. At page 127, in para 23, the pertinent observations made are:

'The second contention that, the appellant's having paid the arrears of rent within 2 months of the institution of the within 2 months of the institution of the suit, there would be no forfeiture of the tenancy has no force in view of the provisions of Section 12 of the Act. Sub-section (2) permits the landlord to institute a suit for the eviction of tenant on the ground on non-payment of rent after the expiration of one month from the service of the notice demanding the arrears of rent, and Clause (a) of sub-section (3) empowers the Court to pass a decree in case the rent had been payable by a 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 service 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 Clause (a) of sub-section (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. The landlord became entitled to recover possession when the tenant failed to pay rent and this right in him is not taken away by any other provision in the Act.' These observations further indicate that the landlord is permitted to file a suit as contemplated by sub-section (2) of section 12 of the Act when steps are taken as contemplated therein and there is non-compliance with it by the statutory tenant. This decision, therefore, in our opinion, does not support the submission made by Mr. Nanavati, but, on the contrary, if these observations are critically examined, they lend support to our conclusion.'

30. In Anand Nivas Pvt. Ltd., v. Anandji Kalyanji's Pedhi : [1964]4SCR892 , in the majority judgment of the Supreme Court, in para 27, at page 422, after referring to the provisions of Section 12 (1) of the Bombay Act, it is observed:-

'For the protection of tenants the clause impose a prohibition against the landlord against recovery of possession of the premises demised to a tenant so long as he pays or is ready and willing to pay the standard rent and permitted increases and also observes and performs the other conditions of the tenancy consistent with the provisions of the Act. A person remaining in occupation of the premises let to him after the determination of or expiry of the period of the tenancy is commonly though in law not accurately, called 'a statutory tenant'. Such a person is not a tenant at all; he has no estate or interest in the premises occupied by him. He has merely the protection of the statute in that he cannot be turned out so long as he pays the standard rent and permitted increases, if any, and performs the other conditions of the tenancy. The terms and conditions of the lease are extinguished, and the rights of such a person remaining in possession are governed by the statute along. Section 12 (1) of the Act merely recognises his right to remain in possession so long as he pays or is ready and willing to pay the standard rent and permitted increases and performs the other conditions of the tenancy, but not the right to enforce the terms and conditions of the original tenancy after it is determined.'

After referring to the English decisions and the difference in language in the relevant Section 15 (1) of the Increase of Rent and Mortgage Interest (Restriction) Act. 1920, certain observations made are:

'Under the provisions of the aforesaid English Act, the tenant was protected so long as he retains possession, to the benefit of all the terms and conditions of the original contract of tenancy so far as they are consistent with the provisions of the Act, the Bombay Act merely grants conditional protection to a statutory tenant and does not invest him with the right to enforce the benefit of any of the terms and conditions of the original tenancy. This differences in the phraseology of the two enactments is vital to the matter under discussion, and we are unable to hold, assuming that the tenant was entitled to sub-let the premises under the terms of the lease, that he cold, relying upon section 12 (1), exercise the right to sublet granted under the lease after he became a statutory tenant.'

It will, therefore, be significant to note that the liability imposed upon the tenant to pay rent and fulfil other conditions of tenancy is not on account of the terms of the contract of tenancy, but this liability is crated under the statute itself. The statutory tenant is given a personal right to remain in possession of the leased premises till he discharges that liability.

31. Mr. Sompura, appearing for the respondent, invited our attention to the observations made by the Supreme Court in Mrs. Manorama S. Masurekar v. Mrs. Dhanlaxmi G. Shah : [1967]1SCR135 , in para 3, it is observed:

'Sub-section (1) of section 12 imposes a general restriction on the landlord's right to recover possession of the premises so long as the tenant pays or is ready and willing to pay the rent and observes and performs the other conditions of the tenancy. Sub-section (2) of section 12 imposes the further restriction that no suit recovery of possession on the ground of non-payment of rent shall be instituted by the landlord until the expiration of one month after a notice in writing demanding the rent. Sub-section (3) (a) provides for the consequences which will follow where the rent is payable by the month, there no dispute regarding the amount of the rent, the rent is in arrears for a period of six months or more, and the tenant neglects to make payment within one month of the service of the notice under sub-section (2).' In part 5, it is observed : The landlord is vested with the right to recover possession of the premises if the rent is in arrears for a period of six months or more, the 'the tenant neglects to make payment thereof until the expiration of the period of one month after notice referred to in sub-s. (2)' and the other conditions of sub-section (3) are satisfied.'

These observations lend support to our conclusion that a tenant whose contractual tenancy has been determined has been given a personal right to remain in possession of the property on fulfilment of certain obligations imposed upon him under the Act. Despite the fact that the lessor has got a right to possession on account of determination of the contractual tenancy he is not entitled to recover possession as the statute intervenes and comes to the rescue of such a person. When he does not fulfil the obligations imposed under the Act he forfeits that right. He will not be protected then under the Act. The landlord would, therefore, be entitled to recover possession by resorting to a remedy provided under the Act by taking necessary steps in compliance with the provisions of Section 12 (2) of the Act. It is such a right that is being enforced. In that context one will have, therefore, to see what is meant by the word 'landlord' used in sub-sections (1) 'and (2) of Section 12 of the Act.

32. As we have said, the dictionary meaning given in Section 5 (1) of the Act, includes a 'rent-collector' within the meaning of the word 'landlord'. We have, therefore to see whether there is anything, to see whether there is anything repugnant to the subject or context in Sub-section (1) or (2) of Section 12 of the Act which would indicate that the dictionary meaning is not to be given to the word 'landlord' used therein. We do not find anything in the language or in the subject or context which is repugnant and which would justify us not to give that dictionary meaning to the word 'landlord' used therein. We are, therefore of opinion that our learned Brothers S. H. Sheth. J. was justified to a large extent in observing in Civil Revn. Appln. No. 841 of 1966. D/- 26.8.1970 (Guj) :

'If I turn once again to the definition of the word 'landlord' in Sub-section (3) of Section 5 it appears clear to me that a person who is for the time-being receiving rent in respect of any premises on his own account or on account, or on behalf or for the benefit of any other person is also a landlord indeed except for the purpose of Section 13 (1) (g) of the Bombay Rent Act. Similarly a person who is for the time-being entitled to receive rent in respect of any premises on his own account or on account, or on behalf, or for the benefit of any other person is also a landlord. The definition of 'landlord' given is Sub-section (3) of Section 5 is all pervasive. It brings with in its compass even the rent-collector and rent-farmer. For the purpose of the Bombay Rent Act they are also the landlords entitled to file the suit except for the purpose of Section 13 (1) (g) of the Bombay Rent Act.'

33. We will make it clear that our observations are only confined to the meaning of the word 'landlord' to be given so far as Section 12 of the Act is concerned. We need not express any opinion in this case whether the same meaning could be given to that word used in different clauses of Section 13 or Section 9, 10 or 11 of the Act or any other section as it does not arise for decision in this case.

34. In Mishrimal Chhogalal v. N. B. Patel, : (1963)65BOMLR15 , learned single Judge of the Bombay High Court, Shah. J., has taken a similar view. He has observed:

'The expression 'landlord' as defined in Section 5 (3) of the Bombay Rents Hotel and Lodging House Rates Control Act. 1947 includes a person who merely receives the rent of the demised premises, on account of himself or entirely for the benefit of somebody else and consequently such a person is entitled not only to give notice of ejectment on any of the grounds mentioned is Section 13 except clause 13 (g) of the Act but also to institute a suit for ejectment in any such ground.'

It appears from the aforesaid observations that according to the learned judge, a 'rent-collector' can also give a notice of ejectment under the Transfer of Property Act. It is true that he has observed after referring to the definition of the word 'landlord' at page 17 :

This part of the definition of a 'landlord' would obviously include a person who merely receives for the time being rent in respect of the demised premises whether on his own account or on account of anybody else obviously entitled to the property. Mr. Jungalwalla, the learned Advocate for the tenant, however contended that it was a very starting proposition, indeed, that a mere rent-collector should be entitled to give a notice of ejectment on the ground of arrears of rent or to institute a suit for ejectment on any such ground. I have no doubt that this part of the definition of 'landlord' is very starting one, but I am afraid that cannot be helped. We have got to give effect to the definition of the word 'landlord' as it stands and even if that definition includes a mere rent-collector, who by no stretch of imagination can ever be called a landlord in the true sense of the term, we have no alternative but to treat rent-collector as a landlord for the purpose of the Rent Act as and when the occasion arises in that behalf.'

In our opinion, there is really no such startling consequence of this definition if we bear in mind that this definition of the word 'landlord' given in Section 5 (1) of the Act is only for the purposes of the Act. A mere rent-collector who would be included within the meaning of the word 'landlord' given in this definition, would not be, in our opinion, entitled to determine the contractual tenancy which could be done only under the relevant, provisions of the Transfer of Property Act. That could be done only by the lessor or lessor's authorised agent. One has to fall back on the relevant provisions of the Transfer of Property Act to see whether the contractual tenancy has been validly determined or not. In the instant case, it is an admitted position that the contractual tenancy has been validly determined by a valid notice to quit. Controversy arises only in relation to the question whether the landlord, i.e. the rent-collector, is entitled to the such a suit as the statutory tenant has not fulfilled the obligations Under the Act and has thereby lost his personal right under the statute to remain in possession of the property. It is in the context that we have to consider whether such a rent-collector who is undoubtedly included within the definition of the word provided under the Act and enforce this right to recover possession that has arisen on account of non-fulfilment of the obligations by the statutory tenant. The answer, in our opinion, should be undoubtedly in the affirmative.

35. At this stage we will refer to the decision of a Division Bench of the Bombay High Court in Mirabelle Hotel Co. Pvt. Ltd, v. Manu Subedar : AIR1971Bom38 . We may say with respect that Tarkunde, J., Speaking for the Division Bench has very succinctly made the statement of law in regard to certain provisions of the Bombay Act. At page 40 in para 5, the observations made are:

'In substance and in effect. Section 12 (1) provides that after the termination of a contractual tenancy by efflux of time or by a notice to quit, the relation of landlord and tenant will continue between the parties and that the tenant will be bound by the conditions of the contractual tenancy in so far as they are consistent with provisions of the Act. Since the statutory tenant is thus bound by operation of law to observe and perform the conditions of the contractual tenancy, he can be restrained by a permanent injunction from committing a breach of any of those conditions. Thus the claim of the plaintiffs in the present suit for permanent injunction against the defendants arises out of Section 12 (1) of the Bombay Rent Act and the Bombay Court of Small Causes has been invested by Section 28 (1) of the Act with the exclusive jurisdiction of dealing with that claim.'

It is further observed in para 7, after referring to Section 15 (1) of the Increase of Rent and Mortgage Interest (Restrictions) Act, 1920, as under :

'It will be notices that whereas Section 12 I1) of the Bombay Rent Act provides that the tenant is bound to perform the conditions of the contractual tenancy. Section 15 (1) of the English Act lays down that the tenant is not only liable to perform the conditions of the contractual tenancy but is also entitled to the benefit of any of those conditions. This difference between Section 15 (1) of the English Act and Section 12 (1) of the Bombay Rent Act was noticed by the Supreme Court in : [1964]4SCR892 . The difference however, has no bearing on the question which falls for determination in the present case. Just as the obligation of a statutory tenant to perform the conditions of the original agreement of tenancy arises under Section 15 (1) of the English Act, so the obligation of the statutory tenant to perform the conditions of the tenancy arises under Section 12 (1) of the Bombay Rent Act. It follows that the landlord's claim to enforce the conditions of the contractual tenancy against his statutory tenancy is covered by Section 28 (1) of the Bombay Rent Act and can only be dealt with the Special Court specified in that Section.'

It thus appears from this decision also that the statutory tenant who remains in possession of the property in virtue of the provisions of the Act, after the contractual tenancy has been determined, has to perform the obligations specified in Section 12 (1) of the Act, not in virtue of the terms of the contract entered into between him and the lessor, but in vies of the liability imposed upon him to fulfil such obligations under the Act. When he does not fulfil those obligations, the landlord has been given a right to pursue his remedy under the Act. He has, therefore, to resort to that remedy by complying with the provisions of the Act and also to approach the forum specified therein itself.

36. In view of these observations made by us. Mr. Nanavati cannot get any assistance in support of his conclusion from the observations made in para 12 by the Supreme Court in N. P. Ponnuswami v. Returning Officer, Namakkal : [1952]1SCR218 . Those observations are:

'It is now well-recognised that where a right or liability is created by a statute which gives a special remedy for enforcing it, the remedy provided by that statute only must be availed of. This rule was stated with great clarity by Willes, J.. in Wolverhampton New Water Works Co. v. Hawkesford. (1859) 6 C. B. NS 336, at page 356 in the following passage: 'There are three classes of cases in which a liability may be established founded upon statute. One is, where there was a liability existing at common law, and that liability is affirmed by a statute which gives a special and peculiar form of remedy different from the remedy which existed at common law; there, unless the statute contains words which expressly or by necessary implication exclude the common law remedy, the party suing has his election to pursue either that or the statutory remedy. The second class of cases is, where the statute gives the right to sue merely, but provides no particular form of remedy; there, the party can only proceed by action at common law. But there is a third class, viz, where a liability not existing at common law. But there is a third class, viz, where a liability not existing at common law is created by a statute which at the same time gives a special and particular remedy for enforcing it .......... The remedy provided by the statute must be followed, and it is not competent to the party to pursue the course applicable to cases of the second class. The form given by the statute must be adopted and adhered to.' '

This decision has no bearing on the question that arises for our decision.

37. Mr. Nanavati invited our attention to the observations made by a Division Bench of this Court in Maganlal Naranda Thakkar v. Arjan Bhanji Kanbi, (1969) 10 Guj LR 837. Those observations are:

'Having regard to the scheme of the Rent Control Act, particularly the scheme of Sections 12 and 13 of the Act and the context in which the words 'has sublet' are used, it appears to us that that is not the way in which the meaning of the words 'has sub-let' should be gathered. If the Rent Control Act were not in force and the parties were left to their ordinary rights under the Transfer of Property Act, the landlord will have a vested right to recover possession in him as soon as he terminates the tenancy of the tenant in the manner provided in the Transfer of Property Act. After terminating the tenancy he can immediately call upon the tenant to hand over possession to him. By enacting Section 12 of the Rent Control Act, the landlord's right to terminate the tenancy is not affected, but the enforcement of this right to recover possession immediately thereafter from the tenant is affected. The provisions of Section 12 prevent a landlord from recovering possession of the property from a tenant even after a lawful termination of his tenancy, provided the tenant fulfils the conditions mentioned in Section 12. Section 12 does not take away the right of the landlord to recover possession of the premises but merely postpones the enforcement of this right of the landlord so long as the tenant fulfils the conditions laid down in that section. Having put this impediment in the enforcement of the right of possession of the landlord or in other words, having clothed the tenant with an immunity from dispossession, the legislature proceeds in Section 13 to lay down those conditions on the fulfilment of which the landlord is entitled to recover possession of the premises from the tenant. Section 13. Therefore, provides for those contingencies on proof of which the tenant loses the immunity from dispossession under Section 12. Some discussion took place on the question whether the tenant has right of possession or whether he has merely an immunity from being dispossession or whether in be called a personal right of possession the fact remains that by Section 13 the legislature has provided for dispossession of tenant, despite provisions of Section 12, if the Court is satisfied that any one of the grounds mentioned in Section 13 does exist.'

In our opinion, these observations do not point in any manner any ratio which runs counter to our conclusion. As seen earlier, the Supreme Court has in terms stated that after the contractual tenancy is determined, such a tenant has a right to remain in possession in virtue of the provisions of the Act and not by extension of the lease and that right is a personal right to remain in possession till he fulfils the obligations imposed upon him under the Act. It is the protection given under the provisions of the statute itself. When he does not discharge that liability and commits a breach, the landlord is entitled to take the remedy provided under the Act after compliance with the provisions of Section 12 (20 of the Act as pointed out by the Supreme Court in the decisions referred to by us earlier.

38. It is significant to note that even under the general provisions of law, an agent authorised to file a suit by the lessor could file a suit to recover possession after the right to possession had accrued in favour of the lessor. Under the provisions of the Act, a rent-Collector has been included within the definition of the word 'landlord' for the purpose of the Act. It would mean, therefore, that such statutory agency is recognised under the statute for the purposes of the Act. When a remedy is, therefore, to be taken against such a statutory tenant, under the provisions of the act for the purposes of the Act, such a rent-collector included within the definition of the word 'landlord' is a person entitled to take such a remedy.

39. Mr. Nanavati has laid considerable emphasis on the provisions of Order III. Rule 1 of the Civil procedure Code. 1908. It reads:

'Any appearance, application or act in or to any Court, required or authorised by law to be made or done by a party in such Court, may, except where otherwise expressly provided by any law for the time being in force, be made or done by the party in person, or by his recognised agent, or by a pleader appearing, applying or actin, as the case may be, on his behalf.'

Mr. Nanavati has laid considerable emphasis on the phrase, 'except where otherwise expressly provided by any law for the time being in force,' and urged that Order III, Rule 1 of the Civil Procedure Code states that only a person who has the cause of action can file a suit except where it is otherwise expressly provided by any law. We may say that this would be the mis-reading of the provisions of this Order. What this Order III, Rule 1 lays down is that any appearance, application or act in or to any Court which is required or authorised by law to be made or done by a party in such Court, could by made either by the party in person or by his recognised agent or by a pleader appearing, applying or acting, as the case may be, on his behalf. Any of the persons could do that act. The only restriction put upon that right is. If there is any other express provision of law in force which suggests the contrary position. If there is any express provision of law in force indicating that a party himself would have to do a particular act, then other persons referred to above cannot act on its behalf. That is the only object of this rule. We will illustrate this by referring to one of such cases by referring to Order 33, Rule 1 of the Civil Procedure Code where a pauper himself is required to do an act in person at the time of filling a pauper petition : he has to act personally, as the suit is to be filed by a pauper and that is the mode contemplated. The rule has nothing to do with the question as to who can file a suit.

40. As said earlier, such a suit can be instituted by a person who is a landlord within the meaning of the definition of the word 'landlord' given in Section 5 (1) of the Act, if he is enforcing the right that has arisen under the Act against a person who has not discharged that liability imposed upon him under the Act. Such a landlord is not enforcing a right to possession under the general provisions of law. The right to possession had already accrued in favour of the lessor. The lessor, under the general provisions of law, was entitled to immediate possession of the property. But the provisions of this special law intervene and give a right to a person whose contractual tenancy was determined to remain in possession of the property till he fulfils the obligations imposed upon him under the Act. That was a personal right that had arisen in his favour in virtue of the provisions of the Act. It was a conditioned right. When he did not fulfil the obligations imposed upon him under the Act, the corresponding statutory right accrued in favour of the landlord to get immediate possession of the property by evicting him by taking necessary steps under the Act. Without complying with those provisions he could not evict such a person, relying upon the general provisions of law. He has to comply with the provisions of the Act and pursue the remedy under the Act, and that is the reason why we have to look to the definition clause which defines the word 'landlord' and see whether in this Section 12 itself there is anything repugnant to the subject or context to justify us not to give that meaning to that word 'landlord'. There is nothing repugnant to the subject or context in this Section 12 to justify us not to give that meaning. It is significant to note that a rent-collector, does not take possession for himself. He takes possession for the lessor. There is, therefore, no question arising that two different persons would be in a position to enforce two rights, one under the general provisions of the Act and other under the special provisions of the Act. There is no likelihood of any conflict. If a lessor, i.e. owner, himself chooses that a particular statutory tenant should not be evicted, he can always step in and defeat the desire of a rent-collector to evict such a tenant. We are, therefore, of the opinion that the two Courts below have rightly come to the conclusion that this rent-collector who is a landlord within the meaning of the word 'landlord' given in the relevant section , has a right to file such a suit to evict the statutory tenant on the ground of non-payment of rent.

41. Mr. Nanavati had urged another contention whether the two Courts below were right in coming to the conclusion that the appellant - defendant was not ready and willing to pay. Ultimately, he gave up that contention. That contention had not found favour with the referring Judge also. We would have dealt with that question as the entire matter has been referred to us, but it is not necessary to deal with it, as Mr. Nanavati has in terms stated that he gives up that contention and he only urges that the rent-collector has no right to file such a suit. It is on that basis alone that he challenged ultimately decree of the two Courts below. This contention, in our opinion, is not well founded. The result is that the appeal fails.

42. The appeal is dismissed. In view of the interesting legal question involved, it will be proper and just to order each party to bear its own costs in this appeal. Each party is, therefore, ordered to bear its own costs in this appeal.

43. Appeal dismissed.


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