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Mochi Narsinhbhai Gandabhai Vs. Shah Motilal Himatlal - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtGujarat High Court
Decided On
Judge
Reported in(1977)18GLR542
AppellantMochi Narsinhbhai Gandabhai
RespondentShah Motilal Himatlal
Cases Referred(Pravinchandra Shamlal v. Saraswatiben
Excerpt:
.....the court in such a case to rewrite the statutory language or to add words like 'as and when due' month to month 'punctually',or 'on a particular date in the next succeeding month' etc as we have already pointed out the legislature has even refrained, as in english 'from in corroborating in the statutory tenancy the term about payment of rent by using clear language in section 12(1) and has, therefore, left this matter advisedly to court's discretion by using this terms of wide import so that on hypothetical considerations of clock wise punctually periodicity or likewise regularity, protection intended for the tenant would not be whittled down and made illusory. the mandatory interpretation would clearly frustrate the whole purpose of this remedial measure where even after the 1953..........revision application may be stated in brief. by the rent note dated april 8, 1962 vide ex 24 the suit premises were let out for the residential purpose of the petitioner tenant and it was agreed in the said rent note that the petitioner tenant the petitioner-tenant should pay the rent to the opponent landlord after the expiration of 12 month. the yearly rent agreed between the parties is rs. 150/- as mentioned in the said rent note3. after the expiration of the aforesaid period of 12 month the petitioner-tenant continued to be in possession of the suit premises and hence on february 24, 1966 by the necessary notice to quit vide ex 15 the opponent-landlord terminated the tenancy of the tenant and filed the suit for obtaining an eviction decree on april 20, 1966. the only ground on which.....
Judgment:

A.N. Surti, J.

1. The petitioner-tenant was aggrieved by the eviction decree passed by the learned Extra Assistant Judge, Baroda in Regular Civil Appeal No. 52 of 1969, which had arisen out of the judgment and decree passed by the learned Civil Judge, (J.D.), Karjan in Regular Civil Suit No. 41 of 1966. The learned Extra Assistant Judge took the view that the petitioner-tenant is not entitled to any protection under Section (12)(3)(b) of the Bombay Rent Act. The learned trial Judge passed the decree against the petitioner-tenant under Section 12(3) (a) of the Rent Act and he also took the view that the petitioner-tenant is not entitled under Section 12(3) (b) of the Bombay Rent Act.

2. A few relevant facts giving rise to the present revision application may be stated in brief. By the rent note dated April 8, 1962 vide Ex 24 the suit premises were let out for the residential purpose of the petitioner tenant and it was agreed in the said rent note that the petitioner tenant the petitioner-tenant should pay the rent to the opponent landlord after the expiration of 12 month. The yearly rent agreed between the parties is Rs. 150/- as mentioned in the said rent note

3. After the expiration of the aforesaid period of 12 month the petitioner-tenant continued to be in possession of the suit premises and hence on February 24, 1966 by the necessary notice to quit vide Ex 15 the opponent-landlord terminated the tenancy of the tenant and filed the suit for obtaining an eviction decree on April 20, 1966. The only ground on which the suit was filed is the nonpayment of the arrears of rent from 16th November 1963 to 20th April 1966. The said suit was numbered a Civil Suit No. 44 of 1966 of the Court of the Civil Judge Sinor.

4. The trial Court took the view that under the circumstances aforesaid, it was necessary to give six month notice to emit the, and hence he dismissed the suit.

5. Thereafter, the opponent-landlord preferred Appeal No 59 p 1969 in the District Court at Baroda and the lower appellate Court took the view that the notice terminate the tenancy is valid at law and remanded the matter to prove the mode of payment of rent by the petitioner-tenant to the opponent-landlord. After the remand-the trial passed the decree for eviction under December 31, 1968.==

6. The petitioner-tenant was aggrieved by the decree passed by the trial Court arid preferred the appeal to the District Court, who dismissed the appeal and took the view that no decree of eviction can be passed against the petitioner-tenant under Section 12(3) (a) of the Rent Act, but took the view that a decree of eviction can be passed against the petitioner under Section 12(3)(b) of the Rent Act and accordingly, he dismi ssed the appeal on 18-7-1970.

7. Being aggrieved by the aforesaid decree passed by the District Court at Baroda, the petitioner-tenant has filed the present revision application in this Court.

8. At the time of hearing of this revision, I am told by the learned advocates that in the 'instant case in the trial Court the petitioner-tenant firstly deposited Rs. 650/-on 18-8-1966 before the first date of the hearing of the matter and Rs. 100/- were deposited by the petitioner-tenant in the trial Court before 1-11-1966. It may be mentioned at this stage that the lower appellate Court has passed the decree on 18th July, 1970 and the petitioner deposited Rs. 100/- in the trial Court on 25-3-1969, and he also deposited Rs. 150/- on 18-4-1970 in the appellate Court. In this manner, I am told by the learned advocates who appeared before me, that in all before the lower appellate Court passed the decree on 18-7-1970 the petitioner-tenant had deposited a sum of Rs. 1050/- towards the rent for 7 different years commencing from S.Y. 2019 to S.Y. 2025. It may be once again mentioned at this stage that the lower appellate Court had passed the decree on 18-7-1970, and hence the defendant-tenant was expected to pay the rent of S. Y 2026 somewhere in the month of October, 1910 or November, 910, if the petitioner-tenant had the Viability to pay the vent to the opponent-tenant yearly and not monthly. On these premises, it is urged before me that the petitioner-tenant is entitled to the protection conferred on him under Section 12 (3)(b) of the Rent Act.

9. Mr. Shah, the learned advocate appearing for the opponent-landlord submitted that the rent note Ex. 24, dated February 24, 1966 conferred on the petitioner-tenant a right to occupy the suit premises for only one year. He submitted that after a lapse of one year, the petitioner -tenant was holding over the suit premises as a monthly tenant. In order to justify his submission, Mr. Shah invited my attention to Sections 106 and 116 of the Transfer of Property Act, 1882 which are in the following words:

106. In the absence of a contract or local law or usage to the contrary, a lease of immovable property for agricultural or manufacturing purposes shall be deemed to be a lease from year to year, terminable, on the part of either lessor or lessee, by six month's notice expiring with the end of a year of the tenancy; and a lease of immovable property for any other purpose shall be deemed to be a lease from month to month, terminable, on the part of either lessor or lessee, by fifteen days' notice expiring with the end of a month of the tenancy.

Every notice under this section must be in writing, signed by or on behalf of the person giving it, and either be sent by post to the party who is intended to be bound by it or be tendered or delivered personally to such party, or to one of his family or servants, at his residence, or (if such tender or delivery is not practicable) affixed to a conspicuous part of the property.

116. If a lessee or under-lessee of property remains in possession thereof after the determination of the lease granted to the lessee, and the lessor or his legal representative accepts rent from the lessee or under-lessee, or otherwise assents to his continuing in possession, the lease is, in the absence of an agreement to the contrary, renewed from year to year, or from month to month, according to the purpose for which the property is leased, as specified in Section 106.

10. Mr. Shah submitted that as the petitioner was the monthly tenant, notwithstanding the terms of the rent note, Ex. 24 dated 24th February, 1966, the petitioner was having the liability to pay to the landlord rent of month to month and not after the expiration of 12 month. In this view of the that of, Mr. Shah submitted that the lower appellate Court was right in not granting the protection under Section 12(3)(b) of the Rent Act.

11. It is not possible for me to agree or accept the submissions of Mr. Shah, the learned advocate for the opponent-landlord. Mr. Shah is right in submitting that the tenant was holding over the suit premises as a monthly tenant after the expiration of 12 month as provided in the rent note Ex. 24 dated 24 2-1966. But the question still remains whether there was any liability on the petitioner-tenant to pay to the landlord the rent for residential premises which he is occupying from month to month. It may be emphasised that the aforesaid rent note clearly provides that the petitioner-tenant has to pay rent to the opponent-landlord after the expiration of 12 month. In this view of the matter, it is not possible for me to agree or accept the submission of Mr. Shah that the petitioner- tenant had liability to pay to the opponent-landlord the rent from month to month. The liability of the petitioner-tenant to pay the rent of the suit premises to the landlord only accrued after the expiration of 12 month, even though he held over the suit premises as a monthly tenant. Under the circumstances, no doubt, it is open to the opponent-landlord to minute the tenancy on any grounds available to him under the Rent Act, but for the purpose of deciding as to whether the petitioner-tenant regularly paid the rent to the opponent-landlord, the Court must necessarily take into consideration the agreement between the parties that the peti tioner-tenant's liability to pay the rent to the landlord accrued only after the expiration of 12 month and not before.

12. In Mulla's Transfer of Property Act, 1882, Fifth Edition, at pages 762-763 observed as follows:

Terms of holding over.-If there is no agreement fixing the terms of the new lease the implied tenancy is in English law subject to such of the terms of the old lease as are applicable to a yearly or monthly tenancy. In Digby v. Atiknson Lord Ellen-borough said: 'Where the tenant holds over after the expiration of the term, he impliedly holds subject to all the covenants in the lease which are applicable to his new situation.' This has been explained in Hyatt v. Griffithe to mean not merely the terms which are necessarily incident to a yearly or monthly tenancy, but the terms, which may be incident to such a tenure. This rule has been followed in Indian cases, for the word 'renewed' shows that there is no contract of tenancy. But in Kaikhusroo v. Bai Jarbai, the Federal Court held that a new tenancy was created, the terms of which by implication would be the same as the one which had expired. The lessee holding over with the assent of the lessor acquires an interest which he can assign and which the lessor can determine by notice to quit. The renewal of lease within the meaning of the section is not the continuance of the original lease.

The following are some terms which in England have been held to apply in the case of a tenancy by holding over: a covenant to pay rent in advance or to repair or a proviso for re-entry for non-payment of rent or a covenant as to the user of the premises. The time as to the notice contained in an expired lease should not be held to be a term of the tenancy arising by holding over under this section.

13. In view of what has been stated above, it is clear to my mind, that in the instant case, having regard to the terms of tenancy as set out in the rent note, by necessary implication, where a tenant holds over the residential premises, his liability to pay the rent accrues only after the expiration of 12 month, though he may be a monthly tenant in respect of the residential premises, and it is open to the landlord to give to the tenant the necessary notice to quit for obtaining an eviction decree on any of the grounds available to him under the Rent Act.

14. At this stage, I may usefully refer to the judgment of this Court in Civil Revision Application Nos. 525 of 1971, 601 of 1971,1178 of 1972 and 523 of 1971 decided on 22nd and 23rd December, 1975 (Coram:J B Mehta and D.P. Desai,) (Pravinchandra Shamlal v. Saraswatiben XVIII G.L.R. 8). In the said judgment the word 'regularly' is explained by the Division Bench in the following words:

The word 'regularly' as used in legal proceedings has a much broader meaning and ordinarily is used in the sense of duty. Therefore, the term is clearly capable of a variety of shades of meanings and when the legislative silence is eloquent not to show any particular periodicity or interval by way of contract of rent usage or practice or under the interim order of the Court, the legislature must be presumed to have advisedly made such broad provision so that the tenant could substantially observe it and earn his protection by liberal interpretation of his obligation and this term 'regularly' in such a context could never be rewritten by substituting anything by the Court. It would not be open to the Court in such a case to rewrite the statutory language or to add words like 'as and when due' month to month 'punctually', or 'on a particular date in the next succeeding month' etc As we have already pointed out the legislature has even refrained, as in English 'from in corroborating in the statutory tenancy the term about payment of rent by using clear language in Section 12(1) and has, therefore, left this matter advisedly to court's discretion by using this terms of wide import so that on hypothetical considerations of clock wise punctually periodicity or likewise regularity, protection intended for the tenant would not be whittled down and made illusory. We cannot proceed on any assumption in such a matter because the rent is penodic compensation for use and occupation and so only monthly periodicity must be intended by the legislature especially when the relevant clause has been made applicable to cases other than those where rent is payable by month even when distinction is made between the two clauses in Section 12(3)(a) and 12(3)(b) by the legislature and the legislature has not prescribed any particular periodicity or time interval or used appropriate lane age to suggest any particular time concept being introduced in this clause The legislature has not even treated non-periodical payment of rent as a ground of eviction and has confined the ground of eviction only to non-payment of the standard rent or permitted increases i.e. the ground of arrears only.

In the said judgment, the Court also observed that the term 'regularly' would have to be interpreted as a directory provision so far as the time interval of the deposits in the Courts is concerned for the fulfilment of the obligation to pay standard rent and permitted increases till the suit is finally decided. The mandatory interpretation would clearly frustrate the whole purpose of this remedial measure where even after the 1953 amendment the legislature intends to protect the tenant by conferring adequate protection on the tenant falling under the residuary clause under Section 12(3)(b).

Having taken into consideration the aforesaid judgment delivered by the Division Bench of this Court, in the instant case, I am convinced that the petitioner-tenant is entitled to the protection of Section 12(3)(b) of the Rent Act. In the instant case, the liability to pay the rent was not from month to month but the same accrued after a lapse of 12 month. I am told that even before the disposal of the appeal, the petitioner- tenant paid up all the arrears of rent as mentioned above. Under the circumstances, I am convinced that the petitioner tenant was holding over the suit premises as a monthly tenant and as is liable to pay the rent accrued after a lapse of 12 month. Under the circumstances aforesaid, he is completely entitled to the protection under Section 12(3)(b) of the Rent Act.

15. As a result of the aforesaid discussion, I set aside the impugned decree of eviction passed by the lower appellate Court against the peti tioner-tenant, and accordingly, the revision application is allowed, and the rule is made absolute with no order as to costs throughout in regard to the relief as to the possession only.


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