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Panchal Mohanlal Ishwardas Vs. Maheshwari Mills Ltd. - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtGujarat High Court
Decided On
Judge
Reported in(1962)3GLR574
AppellantPanchal Mohanlal Ishwardas
RespondentMaheshwari Mills Ltd.
Cases ReferredShah Bhojraj Kuverji Oil Mills and Ginning Factory v. Subhash Chandra Yograj Sinha
Excerpt:
- - 326/if we second party fail to pay in advance by the 5th of every month then we second party would pay to the first party the amount of rent with interest at the rate of eight annas per cent per month and if we second party are in arrears of 3 months rent at a time then the first party will be entitled to get the said property vacated without notice within the stipulated period together with the amount of rent of the remaining duration in that we second party cannot raise any objection. the defendant in his written statement denied that he was tenant-in arrears and contended that the plaintiffs had failed to give credit to the defendant for the sum of rs. amin urged that the new sub-sections (3)(a) and (3)(b) were prospective and not retrospective since they affected substantive.....p.n. bhagwati, j.1. this revision application arises out of a suit filed by the plaintiffs against the defendant to recover possession of certain premises situate on dudheshwar road ahmedabad. the premises consist of a structure known as chhagan kishor iron factory. it appears that from 1931 the defendant was in possession of the premises as a tenant of the plaintiffs. a deed of lease was executed by the between the plaintiffs and the defendant on 28 the november 1942 whereby a lease of the premises was granted by the plaintiffs to be defendant for a period of five years from 1st february 1942 at the rent and on the terms and conditions contained in the deed of lease. there was some dispute between the parties as to whether the plaintiffs were the lessors under the deed of lease or.....
Judgment:

P.N. Bhagwati, J.

1. This Revision Application arises out of a suit filed by the plaintiffs against the defendant to recover possession of certain premises situate on Dudheshwar Road Ahmedabad. The premises consist of a structure known as Chhagan Kishor Iron Factory. It appears that from 1931 the defendant was in possession of the premises as a tenant of the plaintiffs. A deed of lease was executed by the between the plaintiffs and the defendant on 28 the November 1942 whereby a lease of the premises was granted by the plaintiffs to be defendant for a period of five years from 1st February 1942 at the rent and on the terms and conditions contained in the deed of lease. There was some dispute between the parties as to whether the plaintiffs were the lessors under the deed of lease or whether the lessors were Dhirajlal Khushaldas and Company Agents of the plaintiffs. I shall discuss this aspect of the matter later but for the purpose of the present narration I shall proceed on the basis that the lessors under the deed of lease were the plaintiffs. The deed of lease provided for the rent to be paid by the defendant to the plaintiffs for the demise of the premises and also contained the terms and conditions on which the premises should be held by the defendant to the plaintiffs for the demise of the premises and also contained the terms and conditions on which the premises should be held by the defendant during the period of the lease. The deed of lease was in the Gujarati language and Clauses (1)(3)(7) and (9) of the deed of lease when translated provided as under:

(1) The rent of the said property has been fixed at Rs. 3 912 for one year i.e. 12 months. The amount of rent we will pay every month Rs. 326/in advance by the 5th date of every month.

xx xx xx(3). The amount of rent of Rs. 326/if we second party fail to pay in advance by the 5th of every month then we second party would pay to the first party the amount of rent with interest at the rate of eight annas per cent per month and if we second party are in arrears of 3 months rent at a time then the first party will be entitled to get the said property vacated without notice within the stipulated period together with the amount of rent of the remaining duration in that we second party cannot raise any objection.

xx xx xx(7). The said property has been taken on lease by we the second party for the duration of five years. In spite of that whenever and within the above stated duration if the first party wants to get vacated then the first party will give to us the second party a written prior notice of 3 months. So at once we the second party will within three months of the written notice vacate and give possession to the first party and will pay whatever amount of rent be due. And if in spite of being given written intimation we second party do not vacate and give possession to the first party and pay up rent due then we the second party and the heirs and legal representatives of we the second party will pay together with 6% interest all the cost and loss incurred by the first party in recovering possession of the property legally.

xx xx xx(9) Whatever municipal tax and property tax and government tax have to be paid for this property are the liability of the second party. Also whatever tax has to be paid on account of the business of the second party all that are the liability of the second party. And whatever penalty etc. are incurred on account of the business of the second party are the liability of the second party. For this amount we the second party would pay as soon as you of the first party intimate us and take the receipt of the first party. And if we the second party do not pay to the first party in spite of being intimated then you are entitled to recover together with interest at the rate of 6%.

2. I have set out the aforesaid clauses of the deed of lease in extenso since considerable controversy was raised before me as regards the question as to what was the rent payable by the defendant to the plaintiffs for the demise of the premises. After the execution of the deed of lease the defendant continued in possession of the premises as a tenant of the plaintiffs on the terms and conditions contained in the deed of lease. Since the lease was for a period of 5 years it came to an end by efflux of time on 31st January 1947 but the defendant held over and remained in possession of the premises with the assent of the plaintiffs and the tenancy of the defendant was therefore renewed on the same terms and conditions in so far as they were applicable to such tenancy. It was again a matter of controversy between the parties whether the tenancy of the defendant after the expiration of the period of the lease was a tenancy from month to month or a tenancy from year to year. But irrespective of this controversy it was common ground between the parties that the defendant continued to occupy the premises on the same terms and conditions as before. The defendant paid to the plaintiffs rent in respect of the premises upto 20th February 1945 as also municipal taxes upto 1944-45 but thereafter did not pay to the plaintiffs rent in respect of the premises from 1st March 1945 upto 31st December 1952 as also municipal taxes in respect of the premises from 1945-46 to 1952-53 barring two amounts namely Rs. 4 0 and Rs. 2 0 which were paid by the defendant to the plaintiffs on 13th April 1948 and 21st November 1950 respectively. It may be mentioned at this stage that apart from the business of running a factory in the premises the defendant also controlled two Companies namely Metal Moulders Limited and Rubber Products Limited and the defendant Metal Moulders Limited and Rubber Products Limited sold and delivered various goods to the plaintiffs and also supplied labour to the plaintiffs from time to time for which the plaintiffs became liable to pay a sum of Rs. 10 924 to the defendant a sum of Rs. 35 15 to Metal Moulders Ltd. and a sum of Rs. 4 315 to Rubber Products Ltd. On 6th August 1953 an adjustment or settlement of account was made between the plaintiffs on the one hand and the defendant Metal Moulders and Rubber Products Ltd. on the other whereby the items of plaintiffs claim against the defendant for rent from 1st March 1945 upto 31st December 1952 and municipal taxes from 1945-46 to 1952-53 were brought into account on one side and the items of claim of the defendant Metal Moulders Ltd. and Rubber Products Ltd. against the plaintiffs and the items of payment of Rs. 4 0 and Rs. 2 0 made by the defendant to the plaintiffs were brought into account on the other side and the items were set off against one another and the balance of Rs. 18 204 was agreed between the parties as due and payable by the defendant to the plaintiffs. It may be noted that some of the items of the plaintiffs against the defendant in respect of rent and municipal taxes were barred by limitation at the date of this adjustment or settlement of account and yet they were taken into account and set off by the items of claim on the other side of the account and the balance of Rs. 18 204 was struck after such adjustment or settlement. This adjustment or settlement of account was recorded in a letter dated 6th August 1953 addressed by the defendant Metal Moulders Ltd. and Rubber Products Ltd. to the plaintiffs. The defendants however did not pay the sum of Rs. 18 204 or any part thereof to the plaintiffs. The defendant also did not pay to the plaintiffs rent in respect of the premises from 1st January 1953. The municipal taxes in respect of the premises for 1953-54 also remained unpaid by the defendant to the plaintiffs. The plaintiffs therefore by their advocates letter dated 26th February 1954 pointed out to the defendant that the defendant was indebted to the plaintiffs in the aggregate sum of Rs. 28 677 made up of Rs. 18 204 in respect of the adjustment or settlement of account dated 6th August 1953 Rs. 4 230 in respect of rent for 13 months from 1st January 1953 to 31st January 1954 and Rs. 6 234 in respect of municipal taxes for 1953-54. The plaintiffs by this letter gave notice to the defendant demanding payment of Rs. 28 677 -3 from the defendant. The plaintiffs also by this letter gave notice to the defendant to quit the premises on or before 31st January 1955. No reply was given to this letter by the defendant nor was any payment made by the defendant in respect of the sum Rs. 28 677 demanded by the plaintiffs. The plaintiffs thereafter addressed another letter to the defendant through their advocate on 30th December 1954 intimating to the defendant that the plaintiffs wanted to put up a purification plant and that they would therefore seek to recover possession of the premises from the defendant not only on the ground of arrears of rent but also on the ground that they bona fide and reasonably required the premises for their own use and occupation. This letter was received by the defendant on 3rd January 1955. It was after the receipt of this letter that the defendant woke up and decided to send a reply which he did by his advocates letter dated 20th January 1955. The defendant did not in this letter deny the plaintiffs claim but stated that during the period in question the plaintiffs had purchased from the defendant goods worth Rs. 19 558 13 and that the plaintiffs were therefore bound to give credit to the defendant for the sum of Rs. 19 568 against the plaintiffs claim for Rs. 33 82 against the defendant. The defendant thus conceded that the sum of Rs. 33 82 was due and payable by the defendant to the plaintiffs and against that amount the defendant claimed credit only for the sum of Rs. 19 568 but in spite of this clear position the defendant did not choose to pay the balance which on the defendants own admission was due and payable by the defendant to the plaintiffs. The defendant instead of paying the balance to the plaintiffs stated that if after giving credit to the defendant for the sum of Rs. 19 568 against the plaintiffs claim for Rs. 35 82 against the defendant any amount was found due and payable by the defendant to the plaintiffs the defendant was ready and willing to pay the same. The defendant cryptically denied that there were any arrears of rent and stated that if there were any arrears the defendant had never refused to pay the same to the plaintiffs. The defendant also denied that the plaintiffs bona fide and reasonably required the premises for their own use and occupation. Having regard to this attitude of the defendant the plaintiffs filed a suit being Suit No. 43 of 1955 against the defendant on 1st February 1955 for recovering possession of the premises from the defendant. The ground on which the plaintiffs sought to recover possession of the premises from the defendant was two-fold. Firstly the plaintiffs contended that the defendant was a tenant-in-arrears and was therefore not entitled to the protection of the Bombay Rents Hotel and Lodging House Rates (Control) Act 1947 (hereinafter referred to as the Rent Act); and secondly the contention was that the plaintiffs bona fide and reasonably required the premises for their own use and occupation and were therefore entitled to recover possession of the premises from the defendant. According to the plaint as originally laid a sum of Rs. 28 556 was claimed in respect of the rent and municipal taxes which amount was arrived at after giving credit to the defendant for Rs. 11 580 in respect of certain goods sold and delivered to the plaintiffs by Metal Moulders Ltd. and Rubber Products Ltd. The plaintiffs claim against the defendant actually came to Rs. 38 137 and it was made up in the following manner:

Rs. 18,204-14-3 in respect of adjustment or settlement of accountdated 6th August 1953.Rs. 8,150-0-0 in respect of 25 months rent from 1st January 1953to 31st January 1955.Rs. 6,615-3-0 in respect of municipal taxes for 1953-54; andRs. 5,167-0-0 in respect of municipal taxes for ten months of theyear 1954-55.--------------Rs. 38,137-1-3--------------

3. The plaintiffs after giving credit to the defendant for the sum of Rs. 11,580-13-9, claimed to recover the balance of Rs. 26,556-3-6 from the defendant. The defendant in his written statement denied that he was tenant-in arrears and contended that the plaintiffs had failed to give credit to the defendant for the sum of Rs. 19 568 which according to the defendant was due and payable by the plaintiffs to the defendant in respect of the goods sold and delivered to the plaintiffs and that if the plaintiffs were prepared to give credit for that amount the defendant had never refused to pay the balance to the plaintiffs. The defendant alleged that he was ready and willing to pay up such amount as might be found due and owing from him to the plaintiffs on settling the accounts. The defendant also denied that the plaintiffs required the premises bona fide and reasonably for their own use and occupation. Now the sum of Rs. 19 568 in respect of which the defendant contended that the plaintiffs were liable to give credit to the defendant was claimed by the defendant in respect of the price of the goods sold and delivered by Metal Moulders Ltd. and Rubber Products Ltd. to the plaintiffs. According to the plaintiffs however the amount which was due and owing by the plaintiffs in respect of the price of the goods sold and delivered by Metal Moulders Ltd. and Rubber Products Ltd. to the plaintiffs was only Rs. 11 580 and the plaintiffs accordingly gave credit to the defendant for that amount in making their claim against the defendant in the suit. After the written statement was filed by the defendant Metal Moulders Ltd. filed a suit being No. 756 of 1956 against the plaintiffs on 24th April 1956 and Rubber Products Ltd. filed a suit being No. 758 of 1956 against the plaintiffs on 28th April 1956 for recovering the respective amounts due and payable to them by the plaintiffs. These suits were settled and as a result of the statement the plaintiffs paid Rs. 8 639 to Metal Moulders Ltd. on 7th September 1956 and Rs. 2 486 to Rubber Products Ltd. on 19 September 1956 in full and final settlement of the respective claims of Metal Moulders Ltd. and Rubber Products Ltd. against the plaintiffs. The claims of Metal Moulders Ltd. and Rubber Products Ltd. against the plaintiffs were thus settled by payment of an aggregate sum of Rs. 11 125 by the plaintiffs. Since the plaintiffs had given credit to the defendant in the plaint for Rs. 11 550 in respect of the claims of Metal Moulders Ltd. and Rubber Products Ltd. against the plaintiffs for the price of the goods sold and delivered by them to the plaintiffs the plaintiffs applied to the learned trial Judge on 11th February 1957 for leave to amend the plaint by deleting the credit and increasing the claim to Rs. 38 137 which amount represented the actual claim of the plaintiffs against the defendant without any credit being given to the defendant. The amendment was allowed by the learned trial Judge with the result that the ultimate claim of the plaintiffs against the defendant came to Rs. 38 137 It was on the amended plaint that the parties ultimately went to a trial of the suit.

4. The learned trial Judge after recording the evidence and hearing the parties came to the conclusion that the defendant was not a tenant in arrears and that the plaintiffs did not bona fide and reasonably require the premises for their own use and occupation. The learned trial Judge also found that even if the plaintiffs could be said to require the premises bona fide and reasonably for their own use and occupation the plaintiffs were not entitled to evict the defendant since greater hardship would be caused to the defendant by passing a decree for possession than that would be caused to the plaintiffs by refusing to pass a decree for possession. The learned trial Judge accordingly negatived both the grounds urged on behalf of the plaintiffs in support of the relief for recovery of possession and dismissed the suit on 30th April 1957. It may be mentioned here that so far as the plaintiffs claim for recovery of Rs. 38 137 was concerned no decree was required to be passed against the defendant since during the pendency of the suit and before the passing of the decree by the learned trial Judge the defendant deposited in Court all arrears of rent and municipal taxes due upto the date of the passing of the decree inclusive of the sum of Rs. 18 204 due and payable by the defendant to the plaintiffs on the adjustment or settlement of account dated 6th August 1953 with the result that nothing remained due and payable by the defendant to the plaintiffs at the time of the passing of the decree by the learned trial Judge. As a matter of fact a large over-payment to the extent of about Rs. 10,000/- was made by the defendant and the amount of such over-payment was refunded to the defendant.

5. Since the plaintiffs did not succeed in obtaining a decree for eviction against the defendant the plaintiffs filed an appeal in the District Court Ahmedabad. The appeal was heard by the learned District Judge The learned District Judge confirmed the finding of the learned trial Judge that the plaintiffs did not bona fide and reasonably require the premises for their own use and occupation and that even if the plaintiffs so required the premises greater hardship would be caused to the defendant by passing a decree for eviction than would be caused to the plaintiffs by refusing to pass the same. The learned District Judge however came to a different conclusion than the one reached by the learned trial Judge on the question whether the defendant was a tenant in arrears. The learned District Judge found that the case before him was governed by the provisions of Section l2(3)(a) of the Rent Act and that the plaintiffs were therefore entitled to a decree for eviction against the defendant. The learned District Judge accordingly set aside the dismissal of the suit and passed a decree for eviction against the defendant. The defendant was obviously aggrieved by the decree for eviction passed against him by the learned District Judge and he accordingly brought the matter in revision before this Court.

6. Now the first contention of Mr. M.P. Amin learned Advocate appearing on behalf of the defendant was that it was the original Sub-section (3) of Section 12 which applied to the facts of the case and not Sub-section (3)(a) or Sub-section (3)(b) which sub-sections were substituted for the original Sub-section (3) in Section 12 by Bombay Act 61 of 1953. Sub-sections (1) and (2) of Section 12 were not amended by Bombay Act 61 of 1953 and they provided as follows:

(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 this 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 Section 10G of the Transfer of Property Act 1882.

The original Sub-section (3) of Section 12 was in the following terms:

No decree for eviction shall be passed in any such suit if at the hearing of the suit the tenant pays or tenders in Court the standard rent or permitted increases then due together with the costs of the suit.

Sub-sections (3)(a) and (3)(b) which were substituted for the original Sub-section (3) of Section 12 ran as follows:

(3)(a). Where the rent is payable by the month and there is no dispute regarding the amount of standard rent or permitted increases if such rent or increases are in arrears for a period of six months or more and the tenant neglects to make payment thereof until the expiration of the period of one month after notice referred to in Sub-section (2)1 the Court may pass a decree for eviction in any such suit for recovery of possession.

(b). In any other case no decree for eviction shall be passed in any such suit if on the first day of hearing of the suit or on or before such other date as the Court may fix the tenant pays or tenders in Court the standard rent and permitted increases then due and thereafter continues to pay or tender in Court regularly such rent and permitted increases till the suit is finally decided and also pays costs of the suit as directed by the Court.

7. If therefore the original Sub-section (3) applied to the facts of the case the tenant could pay or tender in Court the arrears of standard rent and permitted increases at the hearing of the suit and thus save himself from dispossession. Now it is a matter of history that according to the interpretation put by the High Court of Bombay on the original Sub-section (3) the tenant could pay or tender in Court the rent due even at the appellate stage and if he did so no decree for eviction could be passed against him. In the present case the defendant admittedly deposited in Court all arrears of rent due and payable by the defendant to the plaintiffs before the passing of the decree by the learned trial Judge and if therefore the original Sub-section (3) applied to the facts of the present case the defendant could not be. evicted by the plaintiffs. Mr. M.P. Amin therefore strenuously urged that it was the original Sub-section (3) which governed the present case and not the new Sub-sections (3)(a) and (3)(b) substituted for the original Sub-section (3) by Bombay Act 61 of 1953. This conclusion was sought to be pressed upon me by Mr. M.P. Amin in the following manner. Mr. M.P. Amin pointed out that Bombay Act 61 of 1953 became effective from 31st March 1954 with the result that the original Sub-section (3) continued to operate upto 31st March 1954 and it was only thereafter that the new Sub-section (3)(a) and (3)(b) took the place of the original Sub-section (3). Pounding himself on this provision Mr. M.P. Amin contended that the notice dated 26 February 1954 given by the plaintiffs to the defendant was a notice under Sub-section (2) of Section 12 and that at the expiration of the period of one month from the date of service of the notice on the defendant the provision of the law which applied was the original Sub-section (3) and not the new Sub-sections (3)(a) or(3)(b) and that consequently the defendant had a vested right at that date to prevent dispossession by making payment of the rent due at the hearing of the suit and the defendant could say in the exercise of such vested right that even if he did not comply with the notice dated 26th February 1954 he could pay the rent due at the hearing of the suit and save himself from dispossession under the provisions of the original Sub-section (3) of Section 12. This vested right argued Mr. M.P. Amin accrued to the defendant on the expiration of the period of one month from the date of service of the notice dated 26th February 1954 upon the defendant that is prior to 31st March 1954 and the new Sub-sections (3)(a) and (3)(b) which were substituted for the original Sub-section (3) from 31st March 1954 did not affect this vested right. Mr. M.P. Amin urged that the new Sub-sections (3)(a) and (3)(b) were prospective and not retrospective since they affected substantive rights and that the vested right of the defendant to plead the protection of the original Sub-section (3) was therefore not taken away by the introduction of the new Sub-sections (3)(a) and (3)(b) and the case of the defendant was governed by the provisions of the original Sub-section (3). This contention is in my opinion not well-founded for reasons which I shall immediately proceed to state.

8. Now it is a well-settled principle of construction authoritatively enunciated by judicial Committee of the Privy Council and approved by the Supreme Court that while provisions of a statute dealing merely with matters of procedure may properly unless that construction be textually inadmissible have retrospective effect attributed to them provisions which touch a right in existence at the passing of the statute are not to be applied retrospectively in the absence of express enactment or necessary intendment. Provisions of a statute which affect vested rights in Matters other than matters of procedure should be construed as prospective and not retrospective unless the language by express enactment or necessary implication declares that retrospective operation should be given to such provisions. In every case therefore where the Court is called upon to decide whether or not the case is governed by the provisions of a new statute enacted by the legislature two questions arise. Firstly whether there is any vested right which would be affected by the provisions of the statute if retrospective operation is given to the statute; and secondly whether there is any express enactment which requires the Court to give retrospective effect to the statute or whether there is anything in the statute which by necessary implication requires such retrospective effect to be given. Now in the present case Sub-section (3)(a) and (3)(b) of Section 12 came on the Statute Book on 31st March 1954. If therefore there was any vested right acquired by the defendant prior to 31st March 1954 to plead the protection of the original Sub-section (3) of Section 12 then only could the question arise whether such vested right has been taken away by the new Sub-section (3)(a) or (3)(b) of Section 12. I do not however think that the defendant acquired any vested right to plead the protection of the original Sub-section (3) at any time prior to 31st March 1954. Of course if the right to plead the protection of the original Sub-section (3) became vested in the defendant at any time prior to 31st March 1954 Mr. M.P. Amin could have contended with some force that Sub-section (3)(a) and (3)(b) should not be given retrospective effect so as to affect such vested right and in that event I would have had to consider whether the language of Sub-sections (3)(a) and (3)(b) requires either by express enactment or necessary intendment that retrospective effect should be given to them. This question however does not arise before me since I am of the opinion that no vested right to plead the protection of the original Sub-section (3) accrued to the defendant at any time prior to the introduction of Sub-sections (3)(a) and (3)(b). According to Mr. M.P. Amin the right to plead the protection of the original Sub-section (3) became vested in the defendant on the expiration of the period of one month from the date of service of the notice dated 26th February 1954 upon the defendant. But I must confess my total inability to follow the line of reasoning behind this submission. The Rent Act has been enacted for the benefit of tenants and the various provisions of Section 12 confer a right on the tenant to continue in possession of the premises notwithstanding the termination of his tenancy provided certain conditions are fulfilled. The right conferred by these provisions of the Rent Act is a right which accrues on the termination of the contractual tenancy for so long as the contractual tenancy subsists there is no question of protecting the tenant from dispossession Whilst the contractual tenancy subsists the tenant is entitled to continue in possession by virtue of the estate or interest which he has in the premises as a contractual tenant and it is only when the contractual tenancy is terminated by the landlord that the tenant requires to be protected from dispossession. It is therefore only on the termination of the contractual tenancy that the tenant becomes entitled to plead the protection of the provisions of the Rent Act and it is only at this stage that it can be said that the right to plead the protection of the provisions of the Rent Act becomes vested in the tenant. The tenancy of the defendant in the present case came to an end on 31st January 1955 and it is therefore obvious that until that date no right to plead the protection of the provisions of the Rent Act was vested in the defendant. The occasion and necessity for the exercise of the right to plead the protection of the provisions of the Rent Act arose for the first time on the termination of the tenancy on 31st January 1955 and the right to plead the protection of the provisions of the Rent Act therefore became vested in the defendant only on that date. There was therefore no vested right in the defendant to plead the protection of the original Sub-section (3) at any time upto 31st March 1954. I fail to see how any right to plead the protection of the original Sub-section (3) could accrue to the defendant on the expiration of the period of one month from the date of service of the notice dated 28th February 1954. The notice under Sub-section (2) of Section 12 is merely a notice which gives an opportunity to the tenant to make good the default in payment of the standard rent and permitted increases and it has nothing to do with the accrual of any right to the tenant to plead the protection of any of the provisions of the Rent Act. No right to plead the defence of the Rent Act can possibly accrue to the tenant during the subsistence of the contractual tenancy. The defendant had therefore obviously no vested right to rely on the provisions of the original Sub-section (3) at any time upto 31st March 1954 when the original Sub-section (3) was Sub-stituted by the new Sub-sections (3)(a) and (3)(b). If the defendant had no such vested right to rely on the provisions of the original Sub-section (3) there can be no question of the new Sub-sections (3)(a) and (a)(b) affecting any such vested right. At the date when the tenancy of the defendant came to an end namely on 31st January 1955 the new Sub-sections (3)(a) and (3)(b) were in force and it is therefore axiomatic that either the new Sub-section (3)(a) or the new Sub-section (3)(b) must govern the present case.

9. Mr. M.P. Amin relied on a decision of the Calcutta High Court in I Jatindra Nath De v. Jetu Mahato and Ors. A.I.R. 1946 Calcutta 339. But I do not see how this decision can at all help Mr. M.P. Amin. In this case Section 26F of the Bengal Tenancy Act conferred a right of preemption on the landlord which arose as soon as the transfer was made by the tenant. This section was substituted by another section which did not provide for the right of pre-emption in favour of the landlord but confined the right of pre-emption on the co-sharer tenants of the holding in those cases in which a portion or a share of the holding was transferred. The tenant in this case transferred the holding but before an application could be made by the landlord for enforcing the right of pre-emption Section 26 F was substituted by the new section. The question which arose in these circumstances was whether any right accrued to the landlord before the amendment of Section 26F and if any such right accrued whether it was saved notwithstanding the amendment of that section. Dealing with that question the Full Bench of the Calcutta High Court held that Section 26P of the Bengal Tenancy Act as it stood prior to its amendment contemplated the right of pre-emption as arising from the transfer and did not merely give a right to the landlord to create it for himself by making an application. The true construction of that provision according to the Pull Bench was that under it the right of pre-emption accrued immediately on the transfer without any application to enforce that right and there being nothing in the amending Act to take away that right it survived by virtue of Sub-sections (c) and (e) of Section 8 of the Bengal Tenancy Act and the general principle of construction. The landlord was therefore held entitled to make an application even after the amendment of Section 26F to enforce the right of pre-emption which accrued to him on the transfer. In this decision a reference was made to a previous decision of the Privy Council in (1895) A.C. 425 in which the Judicial Committee of the Privy Council held on the facts of that case that no right had accrued prior to the repeal of the relevant Act and that no right founded on such Act could therefore be enforced after the repeal of such Act. The Pull Bench of the Calcutta High Court distinguished that decision of the Privy Council on the ground that in the case before the Privy Council the right had not accrued before the repeal of the relevant Act whereas in the case before them the right accrued to the landlord before the amendment of Section 26P of the Bengal Tenancy Act. This decision thus clearly goes to show that if a right has become vested in a party before the amendment of the statute the amendment does not affect such vested tight unless it is clear by express enactment or necessary intendment that the amendment should have such effect. If however no vested right has accrued to the party prior to the amendment the amended legislation would apply for it would be that legislation which would be in force at the date when it is alleged that the right arises. If therefore in the present case the right to plead the status of irremovability conferred by the provisions of the Rent Act arose to the defendant for the first time on the termination of the contractual tenancy on 31st January 1955 the provisions of the Rent Act as they existed at that date would apply and the case would be governed by the new Sub-section (3)(a) or (3)(b) and not by the original Sub-section (3) of Section 12.

10. The view which I am inclined to take receives considerable support from a decision of the Supreme Court in Jivabhai Purshottam v. Chhagan Karson and Ors. (1961) II G.L.R. 33. Of course in that case the question arose under the Bombay Tenancy and Agricultural Lands Act 1948 but the principle on which that case was decided by the Supreme Court would equally apply in the decision of this point. The landlord in that case gave a notice of termination of tenancy to the tenant on 31st December 1951 under Section 34(1) of the Tenancy Act. The notice was of one year as required by Section 34(1) of the Tenancy Act and the tenancy was to terminate from 31st March 1953. The landlord therefore made an application to the Mamlatdar on 7th April 1953 under Section 29(2) of the Tenancy Act for obtaining possession of the land from the tenant. In the meantime an amendment was made to the Tenancy Act by the insertion of Sub-section (2-A) in Section 34 by amending Act No. XXXIII of 1952 which came into force from 12 January 1953 By this amendment certain further restrictions were placed on the right of the landlord to terminate the tenancy of a protected tenant. The question arose whether the restrictions imposed by Sub-section (2-A) applied in relation to the landlords claim for recovery of possession of the land from the tenant. The argument urged before the Supreme Court was that if Sub-section (2-A) was applied to notices issued before the Amending Act carne into force that would have the effect of taking away the vested right of the landlord. The Supreme Court repelled this contention by observing as follows:

As we have already pointed out the notice under Section 34(1) is merely a declaration to the tenant of the landlords intention to terminate the tenancy and no further proceedings may be taken by the landlord in consequence thereof. It is only when the period of notice has expired and the tenancy has terminated that the landlord acquires a vested right to obtain possession of the land. Therefore the Amending Act did not affect any vested right of the landlords till the tenancy actually stood terminated after the expiry of the notice. Consequently the provisions of the Amending Act which came into force before the tenancy stood terminated by the notice will have to be taken into consideration in determining the right of the landlord in the matter of the termination of tenancy for the Amending Act put certain fetters on the right of termination. In the circumstances we are of the opinion that the view taken by the High Court is correct and Sub-section (2-A) would apply to all cases where notices might have been given but where the tenancy had not actually terminated before the coming into force of the Amending Act.

11. These observations clearly support the view which I am inclined to take viz. that it is only when the contractual tenancy is terminated that the tenant acquires a vested right to plead the defence under the Rent Act and that it is at that stage that we have to see what are the provisions of the Rent Act which apply and what is the protection to which the tenant is entitled. If therefore any amendment has come into force before the termination of the contractual tenancy such amendment would have to be taken into account in determining whether the tenant is entitled to any protection in the matter of possession of the premises. In this view of the matter it is clear that the tenancy of the defendant having come to an end on 31st January 1953 the defendant cannot rely on the provisions of the original Sub-section (3) of Section 12 since it was substituted by the new Sub-sections (3)(a) and (3)(b) from 31st March 1954 and the case must be governed by the provisions of the new Sub-sections (3)(a) or (3)(b) as the case may be. The present contention of Mr. M.P. Amin must therefore be rejected.

12. That takes me to the main question that was debated before me namely as to what is the true interpretation of Sub-section (3)(a) of Section 12. The learned District Judge took the view that on the facts of the case Sub-section (3)(a) of Section 12 applied and that the plaintiff was therefore entitled to obtain a decree for eviction against the defendant. Mr. M.P. Amin challenged this view of the learned District Judge and contended that it was not Sub-section (3)(a) but Sub-section (3)(b) which applied to the facts of the case. Now it is very much relevant to consider whether the case fell within Sub-section (3)(a) or Sub-section (3)(b) of Section 12 for if the case fell within Sub-section(3)(a) of Section 12 the decree for eviction was bound to go against the defendant; whilst if the case fell within Sub-section (3)(b) of Section 12 no decree for eviction could be passed against the defendant since the defendant had paid up all arrears of rent and permitted increases before the date of the decree passed by the learned trial Judge and complied with the requirements of Sub-section (3)(b) of Section 12. Almost the entire controversy between the parties therefore centered round the question as to which provision applied to the facts of the case Sub-section (3)(a) or Sub-section (3)(b). Mr. M.P. Amin strenuously urged before me that not a single requirement of Sub-section (3)(a) of Section 12 was fulfilled in the present case and that the case therefore fell within Sub-section (3)(b) of Section 12. Now if Mr. M.P. Amin could show that even one requirement of Sub-section (3)(a) of Section 12 was not fulfilled it would be sufficient to bring the case within Sub-section (3)(b) of Section 12 and in that event the defendant would be able to successfully resist the plaintiffs claim for possession of the premises. The question which I must therefore proceed to consider is whether the requirements of Sub-section (3)(a) of Section 12 were fulfilled so as to entitle the plaintiffs to obtain a decree for eviction against the defendant.

13. I have already reproduced the provisions of Sub-section (3)(a) of Section 12 Under that Sub-section it is clear that in a case where the rent is payable by the month and there is no dispute regarding the amount of standard rent or permitted increases if such rent or increases are in arrears for a period of six months or more and the tenant neglects to make payment thereof until the expiration of the period of one month after notice referred to in Sub-section (2) of Section 12 the Court may pass a decree for eviction in a suit for recovery of possession instituted by the landlord against the tenant on the ground of non-payment of the standard rent and permitted increases. The word may in this Sub-section has been interpreted by the High Court of Bombay in the case of Kurban Hussein Sajauddin Belgaumwall v. Ratikant Nilkant Zanker LIX Bombay L.R. 158 to mean must. The High Court of Bombay has taken the view in that case that when the requirements of Sub-section (3)(a) of Section 12 are fulfilled the Court has no discretion but is obliged to pass a decree for eviction against the tenant. I shall refer to this aspect of the matter a little later but one thing is clear that in order that the case may come within Sub-section (3)(a) of Section 12 it is necessary that all the requirements of that sub-section should be satisfied. One of these requirements is that the rent should be payable by the month and Mr. M.P. Amin contended before me very forcefully that in the present case the rent was not payable by the month. If Mr. M.P. Amin is right in his contention that the rent was not payable by the month then obviously Sub-section (3)(a) would not apply and the case would come within Sub-section (3)(b) of Section 12 and in that event no decree for eviction could be passed against the defendant. It is to this aspect of the matter that I will now address myself and proceed to consider whether the contention of Mr. M.P. Amin that the rent in the present case was not payable by the month is well-founded.

14. On this aspect of the matter Mr. M.P. Amins contention was three fold. The first contention was that the expression where the rent is payable by the month in Sub-section (3)(a) of Section 12 referred to tenancy from month to month and that since the tenancy in the present case was from year to year this expression could not possibly apply and the case could not fall within Sub-section (3)(a) of Section 12. This contention is patently unsound and cannot be accepted by me. The expression used in Sub-section (3)(a) of Section 12 is where the rent is payable by the month and not where the tenancy is from month to month. There is a clear distinction between a tenancy which is a tenancy from month to month and a tenancy in which the rent is payable by the month. Ordinarily the mode in which the rent is expressed to be payable raises the presumption that the tenancy is of character corresponding thereto and if consequently the rent is payable by the month the presumption would arise that the tenancy is a tenancy from month to month unless there is something to rebut the presumption (vide A.I.R. 1952 S.C. 23. But the rent may be payable by the month even in an annual lease or a lease for a period certain. Such lease may expressly provide that the rent under it shall be payable by the month. The nature of the lease is not necessarily dependent upon the mode in which the rent is expressed to be payable under the lease. There are two different concepts. What Sub-section (3)(a) of Section 12 requires is that the rent should be payable by the month and not that the tenancy should be from month to month. It does not therefore follow that merely because the tenancy of the defendant was from year to year Sub-section (3)(a) of Section 12 could not apply to the facts of the present case.

15. the second branch of the contention of Mr. M.P. Amin was that the rent was payable by the year and not by the month and that this particular requirement of Sub-section (3)(a) of Section 1 was therefore not fulfilled Now in order to appreciate this contention of Mr. M.P. Amin one must turn to Clauses (1)(3) and (9) of the Deed of Lease It is no doubt true that the Deed of Lease was for a period of five years from 1st February 1942 and that it came to an end by efflux of time on 31 January 1948. But as I have pointed out above it was common ground between the parties that the defendant held over and continued in possession of the premises with the assent of the plaintiffs and the tenancy of the defendant was therefore renewed on the same terms and conditions as were contained in the Deed of Lease in so far as they were applicable to such tenancy. The lease being a lease for manufacturing purposes the tenancy of the defendant was renewed from year to year and was subject to such of the terms and conditions contained in the Deed of Lease as were applicable to a yearly tenancy. Clauses (1)(3) and (9) of the Deed of Lease were applicable to a yearly tenancy and the defendant therefore held the premises as a tenant from year to year subject inter alia to Clauses (1)(3) and (9) of the Deed of Lease. Under Clause (a) of the Deed of lease the rent of the premises was fixed at Rs. 3 912 per year but the defendant was bound to pay Rs. 326/p.m. as and by way of rent in advance on or before the 5th day of every month. Clause (3) provided that if the defendant failed to pay the rent of Rs. 326/-p.m. in advance on or before the 5th day of every month the defendant would be liable to pay to the plaintiffs interest on the amount of such rent at the rate of eight annas per cent per month. The defendant was also liable under Clause (9) of the Deed of Lease to pay to the plaintiffs municipal taxes property taxes and Government taxes in respect of the premises as soon as the plaintiffs intimated to the defendant about the same and if the defendant failed to make payment in spite of being intimated by the plaintiffs to do so the plaintiffs were entitled to charge interest at the rate of 6 per cent per annum. The contention of Mr. M.P. Amin based on these clauses was that the rent of the premises was Rs. 3 912 and that it was payable by the year and that merely because a provision was made prescribing the mode of payment of annual rent by monthly instalments of Rs. 326/it could not be concluded that the rent was payable by the month. Mr. M.P. Amin for the purpose of this argument also relied very strongly on the fact that the tenancy was a tenancy from year to year and not a tenancy from month to month. This circumstance is however in my opinion for reasons already stated above not very material or relevant for the purpose of considering whether the rent was payable by the month or by the year for the rent can be payable by the month even in an annual lease or a lease for a period certain. The decision of this question must therefore ultimately turn on the true interpretation of Clauses (1)(3) and (9) of the Deed of Lease. I may mention at this stage that this particular contention of Mr. M.P. Amin proceeded on the basis that the rent of the premises was only that which was provided in Clauses (1) and (3) of the Deed of Lease and that the municipal taxes property taxes and Government taxes in respect of the premises which were payable by the defendant to the plaintiffs under Clause (9) of the Deed of Lease did not form part of the rent. Now it is true that the rent of the premises was fixed under Clause (1) of the Deed of lease at Rs. 3 912 per year but the same clause provided that the defendant should pay to the plaintiffs Rs. 326/p.m. as and by way of rent in advance on or before the 5th day of every month. The rent for the period of one year was fixed at Rs. 3 912 but it was made payable every month at the rate of Rs. 326 p.m. Under Clause (1) of the Deed of Lease the defendant was under an obligation to pay to the plaintiffs Rs. 326/p.m. as and by way of rent in advance on or before the 5th day of every month. If there was an obligation on the defendant to pay to the plaintiffs every month in advance rent at the rate of Rs. 326/per month I do not see how it can be contended that the rent was not payable by the month but was payable by the year. But the matter does not rest there. Clause (3) of the Deed of Lease provided in clear and unmistakable terms that if the defendant failed to pay the monthly rent of Rs. 326/ in advance on or before the 5 day of every month the defendant would be liable to pay to the plaintiffs the amount of such rent together with interest thereon at the rate of eight annas per cent per month. This clause made it abundantly clear that not only was the rent payable by the month on or before the 5 day of every month but if the defendant failed to make payment of the same the defendant was liable to pay interest at the rate of eight annas per cent per month. I find it impossible to reconcile this clause with the rent being payable by the year. If the rent was payable by the year I do not see how a provision could be made that the defendant should pay Rs. 326/p.m. as and by way of rent in advance on or before the 5th day of every month and that if the defendant did not do so the defendant should be liable to pay interest at the rate of eight annas per cent per annum. I am therefore of the opinion that the contention of Mr. M.P. Amin that the rent provided under Clauses (1) and (3) of the Deed of Lease was payable by the year and not by the month must be rejected.

16. That brings me to the last branch of the contention of Mr. M.P. Amin that the rent of the premises was not payable by the month as required by Sub-section (3)(a) of Section 12 and that the case did not therefore fall within the scope and purview of that sub-section. This contention was put by Mr. M.P. Amin in the following form. Mr. M.P. Amin contended that the rent of the premises was not only the sum of Rs. 326 p.m. as provided in Clauses (1) and (3) of the Deed of Lease but it also included municipal taxes property taxes and Government taxes in respect of the premises which were payable by the defendant to the plaintiffs under Clause (9) of the Deed of Lease. The rent of the premises according to Mr. M.P. Amin consisted of two parts one part being the sum of Rs. 326/p.m. payable by the defendant to the plaintiffs in advance on or before the 5th day of every month and the other part being the amount of municipal taxes property taxes and Government taxes in respect of the premises payable by the defendant to the plaintiffs. Both the parts argued Mr. M.P. Amin constituted rent of the premises since they were payable by the defendant to the plaintiffs for the use and occupation of the premises. Mr. M.P. Amin contended that though the first part might be payable by the month the second part was certainly not payable by the month and that it could not therefore be said of the rent which consisted of both the parts that it was payable by the month; and if it could not be said of the rent that it was payable by the month then obviously Sub-section (3)(a) of Section 12 could not apply. There is in my opinion great force in this contention of Mr. M.P. Amin. The word rent has not been defined in the Rent Act and it must therefore be given the same meaning which is given to it in the Transfer of Property Act which embodies the ordinary law of landlord and tenant. Rent has been defined in Section 105 of the Transfer of Property Act to mean money share of crops service or other thing of value to be rendered periodically or on specified occasions by the tenant to the landlord in consideration of the transfer of the right to enjoy the premises. By a lease the landlord transfers to the tenant the right to enjoy the premises for a certain time express or implied or in perpetuity in consideration of a price paid or promised or of money a share of crops services or any other thing of value to be rendered periodically or on specified occasions to the landlord by the tenant and the money share service or other thing to be so rendered is called rent. Rent is in other words consideration for the transfer of the right to enjoy the premises. Whatever forms the consideration for the transfer of the right to enjoy the premises would therefore be rent whether it be money or a share of crops or service or any other thing of value.

17. In every case therefore where the question arises as to what is the rent the test must be: what is the consideration for the transfer of the right to enjoy the premises that is for the demise and whatever be the consideration and howsoever it be described that would be the rent. As observed by Sir Dinshah Mulla in his commentary on the Transfer of Property Act 4 Edition at page 609In Indian law any payment by the lessee that is part of the consideration of the lease is rent. Applying this test it is clear that the municipal taxes property taxes and Government taxes in respect of the premises payable by the defendant to the plaintiffs under Clause (9) of the Deed of Lease formed part of the rent. For the purpose of the present revision application I am concerned only with the question whether the municipal taxes and property taxes in respect of the premises could be said to form part of the rent payable by the defendant to the plaintiffs; for it was not the case of either party that any Government taxes were payable in respect of the premises It was not disputed before me and in fact the learned Advocate General appearing on behalf of the plaintiffs with his usual can our conceded that the municipal taxes and property taxes in respect of the premises were the liability of the plaintiffs under the Bombay Provincial Municipal Corporations Act 1949 which was the relevant municipal law which applied at the material time. The learned Advocate General obviously could not do otherwise since it is clear on a plain reading of the Bombay Provincial Municipal Corporations Act 1919 that the liability to pay the municipal taxes and property taxes is primarily on the landlord. Since the liability to pay the municipal taxes and property taxes in respect of the premises was primarily on the plaintiffs Clause (9) of the Deed of Lease provided that the municipal taxes and property taxes in respect of the premises should be paid by the defendant to the plaintiffs as soon as the plaintiffs informed the defendant about the same and that if the defendant failed to pay the same in spite of being intimated by the plaintiffs the defendant should pay interest at the rate of six per cent per annum. Clause (9) of the Deed of Lease therefore imposed an obligation on the defendant to pay to the plaintiffs the municipal taxes and property taxes in respect of the premises as soon as the plaintiffs intimated to the defendant about the same. The liability of the plaintiffs to pay the municipal taxes and property taxes in respect of the premises was thus taken over by the defendant under Clause (9) of the Deed of Lease and the defendant was liable to pay to the plaintiffs in consideration of the demise of the premises not only the sum of Rs. 326/p.m. as provided in Clauses (1) and (3) of the Deed of Lease but also the municipal taxes and property taxes in respect of the premises as provided in Clause (9) of the Deed of Lease. The municipal taxes and property taxes in respect of the premises form as such a part of the consideration for the right to enjoy the premises as the sum of Rs. 326/ p.m. and in my opinion no distinction could be made between these two payments in so far as the nature of the payments was concerned. The learned Advocate General contended that the obligation to pay the municipal taxes and property taxes in respect of the premises under Clause (9) of the Deed of Lease was an independent obligation and did not form part of the consideration of the lease. I on my part however find it extremely difficult to agree with this contention of the learned Advocate General. The learned Advocate General had to concede in the course of his arguments that the obligation to pay the municipal taxes and property taxes in respect of the premises under Clause (9) of the Deed of Lease was supported by consideration since if there was no consideration to support such obligation it could not be binding on the defendant. But when I asked the learned Advocate General as to what was the consideration for the obligation apart from the demise of the premises the learned Advocate General was not in a position to point out any. It is obvious that the Deed of Lease was a bilateral transaction and the consideration which proceeded from the plaintiffs was the demise of the premises and it was in consideration of the demise of the premises that the defendant undertook various obligations such as the obligation to pay Rs. 326/-. p.m. in advance on or before the 5th day of every month and the obligation to pay the municipal taxes and property taxes in respect of the premises on being intimated about the same by the plaintiffs. It is therefore obvious that the consideration for the obligation to pay the municipal taxes and property taxes in respect of the premises under Clause (9) of the Deed of Lease was the transfer of the right to enjoy the premises that is the demise. If that is so it is impossible to resist the conclusion that the municipal taxes and property taxes in respect of the premises formed part of the rent payable by the defendant to the plaintiffs for the demise. The learned Advocate General also relied on the distinction which in his submission was made by the parties themselves in the Deed of Lease between the payment of Rs. 326/p.m. and the payment of the municipal taxes and property taxes in respect of the premises. The learned Advocate General contended that whereas the payment of Rs. 326/p.m. was described as rent the payment of the municipal taxes and property taxes in respect of the premises was not described as such and that the parties did not therefore intend that the payment of the municipal taxes and property taxes in respect of the premises should be regarded as rent. This contention of the learned Advocate General is also in my opinion not well-founded. It is true that in the Deed of Lease only the payment of Rs. 326/p.m. was referred to as rent and that the payment of the municipal taxes and property taxes in respect of the premises was not described as rent but that cannot make any difference to the real position. I cannot assent to the proposition that an obligation to pay cannot be an obligation to pay rent unless the payment is called rent in the lease or the agreement. It is the substance of the thing that matters. It is entirely immaterial whether the payment is described as rent or not. Any other view would involve an emphasis on form rather than on substance and the introduction of an artificiality and a technique which would be foreign to the general tenor of the rent legislation. Regard must be had to the substance of the matter and it must be ascertained as to what is the consideration payable by the tenant to the landlord for the demise of the premises and that consideration howsoever it be described or allocated would be the rent of the premises. Here I find that the consideration payable by the defendant to the plaintiffs for the demise of the premises was the sum of Rs. 326/p.m. and the municipal taxes and property taxes in respect of the premises and even if one part of the consideration was described as rent and the other part was not described as such I do not see how it can be said that it did not form part of the rent. The learned Advocate General also drew my attention to the fact that the right to forfeiture provided by Clause (3) of the Deed of Lease was conditioned only on the non-payment of three months rent and that the nonpayment of the municipal taxes and property taxes in respect of the premises was not expressed to give rise to the right of re-entry and that the municipal taxes and property taxes in respect of the premises should not therefore be regarded as rent in the same manner as the rent of Rs. 326/p m. Now it is true as the learned Advocate General contended that the payment of the rent of Rs. 326/p.m. alone constituted the condition of the right to enjoy the premises and that the nonpayment of the municipal taxes and property taxes did not involve the forfeiture of the lease of the premises. But this circumstance to my mind is not determinative of the matter. It may be that the parties might have chosen to give the right of reentry to the plaintiffs only in those cases where one part of the rent was in arrears for a period of three months and they might have preferred not to visit the nonpayment of the other part of the rent with the same consequences. The only test which must be applied in determining the question must be to ascertain the compensation payable by the defendant to the plaintiffs in consideration of the demise howsoever it be allocated; and if that test is applied it is obvious that the rent of the premises consisted not only of the sum of Rs. 326/p.m. payable by the defendant to the plaintiffs in advance on or before the 5th day of every month but also of the municipal taxes and property taxes in respect of the premises payable by the defendant to the plaintiffs on the necessary intimation being given by the plaintiffs to the defendant.

18. In this view which I am inclined to take I am supported by two decisions; one a decision of a Division Bench of the Calcutta High Court in Watson and Co. v. Sreekristo Bhumick and Ors. XXI Calcutta 132; and the other a decision of a Division Bench of the Bombay High Court in Maharana Jaswantsinhji Ranmalsinhji Thakore Saheb ofSanand v. The State of Bombay LVI Bom. L.R. 1054. I may at once mention that the latter decision is binding on me and even if I was of a different opinion I would have subordinated my opinion to that decision and respectfully followed that decision treating it as binding on me. In the Calcutta case the dak cess was claimed by the plaintiffs from the defendant under a contract by which the rent was payable and the question arose whether the dak cess formed part of the rent for if the dak cess formed part of the rent the dak cess being in dispute the amount of rent could be said to be in dispute so as to take the case out of the provisions of Section 153 of the Bengal Tenancy Act. A Division Bench consisting of Macpherson and Gordon JJ. held that the dak cess must be regarded as rent though it was not described as rent and was in fact provided separately in the contract from what was described as rent. The learned Judges adopted the same line of reasoning as I have in the preceding paragraphs of this judgment and observed as follows:

The dak cess is claimed under the contract by which the rent is payable; it is claimed practically as part of the rent and according to the definition of that word as contained in the Bengal Tenancy Act we think it must be regarded as rent that is to say as part of what is lawfully payable in money for use and occupation of the land which forms the consideration for the payment of the dak cess and that being so the amount of rent is in dispute and this takes the case out of the provision of Section 153 which in certain cases bars an appeal.

19. If the dak cess could be regarded as rent on the ground that it was part of what was lawfully payable in money for use and occupation of the land held by the tenant even though it was not described as rent and was provided for separately from rent so described I do not see why the municipal taxes and property taxes in respect of the premises in the present case could not also be regarded as forming part of rent.

20. The decision of the Bombay High Court in Jaswantsinhji v. The State of Bombay (supra) makes the position abundantly clear and concludes the present question in favour of the defendant. In this case a talukdar leased certain lands situated in his village to tenants under agreements which provided for payment by tenants of certain amounts as rent and also whatever local fund cess which he was liable to pay to Government. On these facts the question arose whether the amount which the landlord was recovering from the tenants was cess or rent. If it was cess the argument was that it could not be recovered by reason of the provisions of Section 11 of the Bombay Tenancy and Agricultural Lands Act 1948 Dealing with this question Chagla C.J. as he then was observed as follows:

the agreement mentions the amount of the cess and the landlord becomes entitled to receive from the tenant an amount corresponding to the cess which he is liable to pay under the agreement. But what the landlord in law receives from the tenant and what the tenant in law pays to the landlord is not a cess but is the rent reserved under the agreement. It is rightly pointed out that the consideration paid by the tenant in this case for the use and occupation of the land was twofold One was the payment of an amount which is described as rent and the second was the payment of the local fund cess. The payment of the local fund cess was as much a part of the consideration as the amount described as rent and it is pointed out that when one turns to the definition of rent in the Act it means any consideration in money or kind or both paid or payable by a tenant on account of the use or occupation of the land held by him and it is suggested that there can be no dispute whatsoever in this case that the tenant agreed to pay the local fund case as consideration for the use and occupation of the land. There was no obligation on him to pay the local fund cess the obligation was upon the landlord he took over the obligation upon himself because he wanted the land and the landlord insisted upon the tenant paying the local fund cess as part of the consideration.

21. The facts of this case are indistinguishable from the facts of the present case and I do not see how in view of this decision apart from the fact that I have also independently come to the same conclusion it is open to me to reach any other conclusion. To borrow the words of the learned Chief Justice in that case the consideration payable by the defendant to the plaintiffs for the transfer of the right to enjoy the premises was twofold; one was the payment of an amount which was described as rent viz. Rs. 326/p.m. and the other was the payment of the municipal taxes and property taxes in respect of the premises. The payment of the municipal taxes and property taxes in respect of the premises was as much part of the consideration as the amount described as rent and both formed part of the rent payable by the defendant to the plaintiffs.

It would thus be seen that the rent payable by the defendant to the plaintiffs under the Deed of Lease was made up of two parts; one part consisting of the sum of Rs. 326/p.m. described as rent and the other part consisting of the municipal taxes and property taxes in respect of the premises. Since the defendant held over the premises after the termination of the period of five years provided in the Deed of Lease and the tenancy of the defendant was removed from year to year on such of the terms and conditions contained in the Deed of Lease as were applicable to a yearly tenancy the rent payable by the defendant to the plaintiffs under the renewed tenancy also remained the same namely Rs. 326/ p.m. and the municipal taxes and property taxes in respect of the premises. The question which must therefore be considered for the purpose of deciding whether the provisions of Sub-section (3)(a) of Section 12 applied to the facts of the present case is whether the rent consisting of Rs. 326/p.m. and the municipal taxes and property taxes in respect of the premises payable by the defendant to the plaintiffs could be said to be rent payable by the month. One part of the rent namely Rs. 326/p.m. was clearly payable by the month but so far as the other part of the rent namely municipal taxes and property taxes in respect of the premises was concerned that other part was equally clearly not payable by the month. The learned Advocate General frankly stated before me that the municipal taxes and property taxes in respect of the premises were an annual charge and if that was so it is obvious that the municipal taxes and property taxes could be demanded by the plaintiffs from the defendant only at the end of every year and the obligation of the defendant to pay the municipal taxes and property taxes in respect of the premises to the plaintiffs could also arise only at the end of every year. Clause (9) of the Deed of Lease provided that the defendant was liable to pay the municipal taxes and property taxes in respect of the premises to the plaintiffs as soon as the plaintiffs intimated about the same to the defendant and the defendant could not admittedly be intimated by the plaintiffs about the payment of the municipal taxes and property taxes in respect of the premises unless the plaintiffs received the bills in respect of the municipal taxes and property taxes which could happen only at the end of every year. The municipal taxes and property taxes in respect of the premises were therefore payable by the defendant to the plaintiffs by the year and not by the month. That part of the rent which consisted of the municipal taxes and property taxes in respect of the premises was thus not payable by the month. The net result of this discussion would therefore appear to be that the rent payable by the defendant to the plaintiffs in respect of the premises consisted of two parts of which one part was payable by the month whilst the other part was not payable by the month. But even if one part of the rent was not payable by the month it is obvious that the rent could not be said to be payable by the month; and if that was so the provisions of Sub-section (3)(a) of Section 12 could not be attracted. I am therefore of the opinion that Sub-section (3)(a) of Section 12 did not apply to the facts of the present case and that the present case therefore fell within the provisions of Sub-section (3)(b) of Section 12. It was not disputed before me that if the present case was governed by Sub-section (3)(b) of Section 12 the defendant had complied with the requirements of that sub-section and so decree for eviction could in that event be passed against the defendant. In this view of the matter it is clear that the learned District Judge was in error in passing a decree for eviction against the defendant and that the decree for eviction passed against the defendant must therefore be set aside.

22. Having regard to this view which I have taken on the question whether the rent was payable by the month it is not necessary for me to consider the other questions raised by Mr. M.P. Amin in support of the revision application. Whatever I say now in regard to those questions would be mere obiter dictum. I am aware that obiter dicta like the proverbial chickens of destiny come home to roost sooner or later in a very uncomfortable way to the Judge who has uttered them and that normally a Judge should not say more than is necessary to get a safe resting place for his decision; but in this matter I have heard full and detailed arguments on those questions and I do not think that sitting as a Single Judge it would be right on my part not deal with those questions. I will therefore now proceed to examine how far the contentions urged by Mr. M.P. Amin in regard to those questions can be sustained.

23. Mr. M.P. Amin contended that it was a condition precedent to the ?^-applicability of Sub-section (3)(a) of Section 12 that a valid and proper notice under Sub-section (2) of Section 12 should be given by the landlord to the tenant. The contention of Mr. M.P. Amin was that a notice in order to be a valid and proper notice under Sub-section (2) of Section 12 should demand only the standard rent and permitted increases and no more and that if any amount was demanded by the notice in excess of the standard-rent and permitted increases the notice was invalid and it could not afford a foundation for the applicability of Sub-section (3)(a) of Section 12. Mr. M.P. Amin urged that in the present case the notice dated 26th February 1954 which was relied upon by the plaintiffs as the notice under Sub-section (2) of Section 12 was not a valid and proper notice since it contained a demand for an amount in excess of the standard rent and permitted increases. This contention of Mr. M.P. Amin was based on the premise that the sum of Rs. 18 204 claimed in the notice dated 26th February 1954 was not due and payable by the defendant to the plaintiffs on account of the standard rent or permitted increases but was due and payable on an entirely different cause of action namely account stated. The argument which was built up on this premise was that since the sum of Rs. 18 204 was due and payable by the defendant to the plaintiffs on account stated and not on account of the standard rent or permitted increases the demand of that amount contained in the notice dated 26th February 1954 was a demand in excess of the standard rent and permitted increases and that the notice dated 26th February 1954 was therefore not a valid and proper notice. Stripped of all details the contention was that the notice under Sub-section (2) of Section 12 should demand nothing more than the standard rent and permitted increases and that if it did so it would not be a valid and proper notice. I shall now turn to examine the validity of this contention.

24. Sub-section (2) of Section 12 requires that before a suit for recovery of possession can be instituted by the landlord against the tenant on the ground of non-payment of the standard rent or permitted increases a notice in writing of the demand of the standard rent and permitted increases should be served on the tenant in the manner prescribed by Section 106 of the Transfer of Properly Act and that a period of one month should be allowed to expire from the date of service of such notice on the tenant. The notice contemplated by Sub-section (2) of Section 12 must be a notice in writing and it must demand the standard rent or permitted increases from tenant. So long as the notice satisfies these two requirements it would be a valid and proper notice under Sub-section (2) of Section 12. The question which must therefore be considered is whether the notice dated 26th February 1954 satisfies these two requirements. The notice dated 26th February 1954 was admittedly a notice in writing but could it be said of that notice that it demanded the standard rent or permitted increases from the defendant? The contention of Mr. M.P. Amin was that the notice dated 26th February 1954 was not a notice demanding the standard rent or permitted increases from the defendant since it contained a demand for an amount in excess of the standard rent or permitted increases and this contention was based as I have pointed out above on the premise that the sum of Rs. 18 204 claimed in the notice was due and payable by the defendant to the plaintiffs on account stated and not on account of the standard rent or permitted increases. Before therefore the contention of Mr. M.P. Amin can be accepted it would have to be considered how far the premises on which the contention of Mr. M.P. Amin is founded is correct.

The question whether the sum of Rs. 18 204 claimed by the plaintiffs from the defendant by the notice dated 26th February 1954 was due and payable by the defendant to the plaintiffs on account of the standard rent or permitted increases or on account stated must depend on the determination of the true nature of the transaction recorded in the letter dated 6th August 1953. According to the defendant the transaction recorded in the letter dated 6th August 1953 represented the adjustment or settlement of account between the plaintiffs on the one hand and the defendant Metal Moulders Ltd. and Rubber Products Ltd. on the other and that the sum of Rs. 18 204 was the balance struck on adjustment or settlement of account and that the same was therefore payable by the defendant to the plaintiffs as on account stated. The plaintiffs on the other hand contended that the transaction recorded in the letter dated 6 August 1953 represented merely a set off by agreement between the parties of the respective claims of the defendant Metal Moulders Ltd. and Rubber Products Ltd. for the price of goods sold and delivered and labour supplied by them to the plaintiffs against the plaintiffs claim for rent and municipal taxes and that after such set off the balance of Rs. 18 204 remained due and payable by the defendant to the plaintiffs on account of rent and municipal taxes. The plaintiffs contended that no new cause of action accrued to the plaintiffs as a result of the transaction recorded in the letter dated 6th August 1953 and that the cause of action of the plaintiffs remained the same namely for recovery of the balance of the claim for rent and municipal taxes. The demand of Rs. 18 204 contained in the notice dated 26th February 1954 was therefore according to the plaintiffs a demand for arrears of rent and municipal taxes. This contention of the plaintiffs is however in my opinion untenable for it ignores the true meaning and effect of the transaction recorded in the letter dated 6th August 1953. What really transpired on 6th August 1953 was that the plaintiffs on the one hand and the defendant Metal Moulders Ltd. and Rubber Products Ltd. on the other sat down together and made up accounts between the parties. The plaintiffs had various items of clients against the defendant in respect of rent from 1 March 1945 to 31st December 1952 and municipal taxes from 1945-46 to 1952-53. The defendant Metal Moulders Ltd. and Rubber Products Ltd. had also various items of claims against the plaintiffs in respect of the price of goods sold and delivered and labour supplied by them to the plaintiffs. The defendant had also paid to the plaintiffs two amounts namely Rs. 4 0 on 13th April 1948 and Rs. 2 0 on 21st November 1950 towards part-payment of the amount of the rent and municipal taxes. These were the items of claim on either side. The items of the plaintiffs claim against the defendant were brought into account on one side and the items of claim of the defendant Metal Moulders Ltd. and Rubber Products Ltd. in respect of goods sold and delivered and labour supplied and the items of Rs. 4 0 and Rs. 2 0 paid by the defendant to the plaintiffs were brought into account on the other side and the items were set off against one another and the balance of Rs. 18 204 was agreed between the parties as due and payable by the defendant to the plaintiffs. It is apparent that some of the items of claim of the plaintiffs against the defendant were barred by the law of limitation and yet they were taken into account and set off by the items of claim on the other side of the account. So far as the items of the claim of the defendant Metal Moulders Ltd. and Rubber Products Ltd. against the plaintiffs are concerned it does not appear from the record as to when the claims in respect of those items arose but it is not improbable that some of those claims were also barred by the law of limitation and yet they were taken into account and set off by the items of claim on the other side of the account. The items on each side were treated as paid off and discharged by the items on the other side and the balance of Rs. 18 204 was struck and it was agreed between the parties that the same should be paid by the defendant to the plaintiffs. If this is not a case of account stated I do not see what other case can there be of account stated. It must be remembered that there are two forms of account stated. An account stated may only take the form of a mere acknowledgment of a debt and in those circumstances though it is quite true that it amounts to a promise and the existence of a debt may be inferred that can be rebutted and it may very well turn out there is no real debt at all and in those circumstances there would has no consideration and no binding promise unless of course the case comes within Section 25(3) of the Contract Act. There is also another form of account stated which is a very usual form as between merchants in business in which the account stated is an account which contains entries on both sides and in which the parties who have stated the account between them have agreed that the items on one side should be set against the items on the other side and the balance only should be paid: in such a case the items on the smaller side are set off and deemed to be paid by the items on the larger side and there is a promise for good consideration to pay the balance arising from the fact that the items have been so set off and paid in the way described. The character or origin of debits or credits on either side is entirely immaterial Whatever be the consideration for the item all that is required is that each item must appear in terms of money and must be brought into account on one side or the other. A real account stated comes in to being as observed by Viscount Cave in Camillo Tank Steamship Company Limited v. Alexandria Engineering Works (1921) 38 T.L.R. 134 when several items of claim are brought into account on either side and being set against one another a balance is struck and the consideration for the payment of the balance is the discharge of the items on each side. It is the same as if each item was paid and a discharge given for each and in consideration of that discharge the balance was agreed to be due. It is not necessary in order to make out a real account stated that the debts should be debts in praesenti or that they should be legal debts. The debts or items of claim may be barred by the law of limitation and yet they can be taken into account and be treated as paid off or discharged by the debts or items of claim on the other side. The account stated thus results in an agreement by one party to pay to the other the balance found due on account stated and it furnishes a new cause of action to the party in whose favour the balance is found due. Vide Siqueira v. Noronha A.I.R. 1934 P.C. 144 and Bishun Chand v. Girdharilal . Now applying this test it is clear that what happened in the present case on 6th August 1953 was that an account was stated between the plaintiffs on the one hand and the defendant Metal Moulders Ltd. and Rubber Products Ltd. on the other and the sum of Rs. 18 204 was struck as the balance due and payable by the defendant to the plaintiffs. The transaction recorded in the letter dated 6th August 1953 therefore furnished a new cause of action to the plaintiffs and the original character of the items of plaintiffs claim against the defendant was lost and the sum of Rs. 18 204 became due and payable by the defendant to the plaintiffs as on account stated. The plaintiffs claim against the defendant for Rs. 18 204 was therefore a claim for monies due on acgount stated and not a claim for arrears of standard rent or permitted increases.

25. But even if it were so the question still remains whether the inclusion of the demand for Rs. 18 204 in the notice dated 26th February 1954 had the effect of invalidating the notice dated 26th February 1954 as a notice under Sub-section (2) of Section 12. That again brings me to the question whether the notice dated 26th February 1954 could in spite of the inclusion of the demand of Rs. 18 204 be said to be a notice demanding the standard rent or permitted increases from the defendant. It was not disputed before me that on the view taken by me that the municipal taxes and property taxes in respect of the premises formed part of the rent the notice dated 26th February 1954 did demand the standard rent to the premises from the defendant excluding the demand of Rs. 18 204 The only argument was that the inclusion of the demand of Rs. 18 204 invalidated the notice dated 26th February 1954 for by reason of the inclusion of the demand of Rs. 18 204 the demand contained in the notice dated 26th February 1954 could not be said to be a demand of the standard rent or permitted increases. The notice dated 26th February 1954 it was urged on behalf of the defendant contained a demand which exceeded the amount which was really and truly payable by the defendant to the plaintiffs in respect of the standard rent or permitted increases and was therefore not a valid and proper notice under Sub-section (2) of Section 12. This contention is in my opinion not well-founded and must be rejected for reasons which I shall immediately proceed to state.

26. As I have pointed out above the notice dated 26th February 1954 demanded the standard rent which was due and payable by the defendant to the plaintiffs and in addition demanded Rs. 18 204 which was due and payable by the defendant to the plaintiffs as on account stated. The notice in effect contained two demands; one being the demand of the standard rent in respect of the premises and the other being the demand for Rs. 18 204 as on account stated. It was clearly stated in the notice dated 26th February 1954 that the sum of Rs. 18 204 was demanded by the plaintiffs from the defendant as being due on account of the adjustment or settlement of account dated 6th August 1953 and that the defendant therefore knew the nature and basis of the demand of Rs. 18 204 made by the plaintiffs against the defendant namely that it was a claim on stated account. Now it cannot be disputed that the demand of Rs. 18 204 was a totally irrelevant demand so far as the notice under Sub-section (2) of Section 12 was concerned; but so long as the notice dated 26th February 1954 contained the demand of the standard rent or permitted increases I do not see how the inclusion of any irrelevant demand in the notice could possibly affect the validity of the notice. If the notice contains the demand of the standard rent or permitted increases as required by Sub-section (2) of Section 12 I do not see why the inclusion of a totally distinct and separate demand should defeat the notice as a whole. If the landlord gives notice making demand of the standard rent or permitted increases and includes in the notice another demand which is totally irrelevant to the purpose of the notice under Sub-section (2) of Section 12 the landlord can certainly be said to have given notice demanding the standard rent or permitted increases notwithstanding the inclusion of such irrelevant demand. All that can be said in such a case is that the landlord has not only done that which Sub-section (2) of Section 12 requires him to do but has done something in addition. The landlord would therefore be within the words of Sub-section (2) of Section 12 and I do not see why a notice which contains too much is not within the meaning or intendment of that Sub-section. The sole object of giving notice under Sub-section (2) of Section 12 is to afford an opportunity to the tenant to make good the default in payment of the standard rent or permitted increases so that the tenant can save the tenancy from the consequences of default by paying up the arrears of standard rent and permitted increases. This object would certainly be carried out if the notice given by the landlord to the tenant contains the demand of the standard rent or permitted increases and I do not see how the inclusion of any other demand in the notice would tend to defeat this object. The tenant can certainly ignore the other demand which is irrelevant so far as the termination of his tenancy is concerned. I am therefore of the opinion that the inclusion of the demand of Rs. 18 204 in the notice dated 26 February 1954 did not have the effect of invalidating the notice and the notice was a valid and proper notice within the meaning of Sub-section (2) of Section 12.

Mr. M.P. Amin next contended that in any event the defendant was not in arrears of rent for a period of six months or more and that he did not neglect to make payment of such arrears within one month of the date of service on him of the notice under Sub-section (2)of Section 12. The contention of Mr. M.P. Amin was that there was an agreement between the parties that the rent should be adjusted against the price of goods sold and delivered and labour supplied by the defendant Metal Moulders Ltd. and Rubber Products Ltd. to the plaintiffs and that the defendant therefore could not be said to be in arrears of rent; nor could the defendant be said to have neglected to make payment of rent to the plaintiffs every month. If this contention of Mr. M.P. Amin is right it is obvious that the provisions of Sub-section (3)(a) of Section 12 would not apply to the facts of the present case and in that event the defendant would be entitled to succeed. I cannot however accept this contention since it has no factual basis. The agreement put forward by Mr. M.P. Amin could be either express or implied from course of conduct. It was not the contention of Mr. M.P. Amin that the agreement was express and the only question which I must therefore examine is whether any such agreement could be implied from course of conduct. But before I do so I cannot fail to mention that the agreement was neither pleaded in the written statement nor was any issue raised before the learned trial Judge regarding the agreement. In the absence of any pleading or issue in regard to the agreement I do not see how I can permit Mr. M.P. Amin to urge before me for the first time that there was an agreement between the parties that the rent should be adjusted against the price of goods sold and delivered and labour supplied by the defendant Metal Moulders Ltd. and Rubber Products Ltd. to the plaintiffs. Apart from this preliminary objection I do not think that the evidence on record supports the existence of any such agreement. There could obviously be no such agreement prior to 6th August 1953 when the account was stated between the parties. If there was any such agreement between the parties prior to 6th August 1953 I do not see why the defendant should have paid to the plaintiffs Rs. 4 0 and Rs. 2 0 on 13th April 1948 and 21st November 1950 respectively towards part-payment of the amount of rent and municipal taxes. The transaction recorded in the letter dated 6th August 1953 also clearly shows that there was no such agreement between the parties prior to that date. If there was any such agreement between the parties I do not see why it was necessary for the defendant Metal Moulders Ltd. and Rubber Products Ltd. to agree with the plaintiffs on 6th August 1953 that their respective claims against the plaintiffs should be set off against the plaintiffs claim for rent and municipal taxes against the defendant. The very fact that it was necessary for the parties to sit down on 6th August 1953 and to come to an agreement for the setting off of the items of claims on both sides show that there was no agreement prior to that date that the rent should be adjusted against the price of goods sold and delivered and labour supplied by the defendant Metal Moulders Ltd. and Rubber Products Ltd. to the plaintiffs. Such an agreement would have to be an agreement between the plaintiffs on the one hand and the defendant Metal Moulders Ltd. and Rubber Products Ltd. on the other and in order therefore to imply it from course of conduct one would have to examine the conduct of Metal Moulders Ltd. and Rubber Products Ltd. apart from the conduct of the plaintiffs and the defendant. Now I do not see anything in the conduct of Metal Moulders Ltd. and Rubber Products Ltd. from which such an agreement can be spelt out. It does not appear from the record as to when Metal Moulders Ltd. and Rubber Products Ltd. sold and delivered goods and supplied labour to the plaintiffs and merely from the fact that they once agreed to an adjustment of account it cannot be implied that they were agreeable that the price of goods sold and delivered and labour supplied by them to the plaintiffs should be adjusted against the rent payable by the defendant to the plaintiffs. There is therefore nothing in the course of conduct of the parties prior to 6th August 1953 from which an agreement for adjustment of the rent and municipal taxes against the price of goods sold and delivered and labour supplied by the defendant Metal Moulders Ltd. and Rubber Products Ltd. to the plaintiffs can be spelt out. Equally there is nothing in the course of conduct of the parties subsequent to 6th August 1953 from which any such agreement can be implied. Within a few months after 6th August 1953 the plaintiff sent the notice dated 26th February 1954 demanding the arrears of rent and municipal taxes from the defendant. I do not see how under these circumstances any implication can be made as regards the existence of any such agreement. It is again important to note that though the plaintiffs demanded the arrears of rent and municipal taxes from the defendant by the notice dated 26th February 1954 the defendant did not set up any such agreement in reply to the notice. As a matter of fact the defendant did not send any reply to the notice dated 26th February 1954 until 20th January 1955 and even then the defendant did not allege that there was any agreement between the parties that the rent should be adjusted against the price of goods sold and delivered and labour supplied. There is also another circumstance which militates against the existence of any such agreement. Metal Moulders Ltd. and Rubber Products Ltd. filed suits against the plaintiffs to recover the respective amounts due and payable to them by the plaintiffs for the price of goods sold and delivered and labour supplied by them to the plaintiffs. If any such agreement was arrived at between the parties as is now alleged on behalf of the defendant I do not see why Metal Moulders Ltd. and Rubber Products Ltd. should have filed these suits against the plaintiffs. It is no doubt true that the plaintiffs in the claim made by them in the present suit originally gave credit to the defendant for the amounts which according to the plaintiffs were respectively due and payable by the plaintiffs to Metal Moulders Ltd. and Rubber Products Ltd. but no inference can be drawn against the plaintiffs from this circumstance for it is quite possible that the plaintiffs might have given such credit not because there was any agreement but because Metal Moulders Ltd. and Rubber Products Ltd. were the companies controlled by the defendant and the plaintiffs might well have thought that since the amounts were admittedly due and payable by the plaintiffs to Metal Moulders Ltd. and Rubbers Products Ltd. credit should be given to the defendant for those amounts and only the balance should be claimed from the defendant. I am therefore of the opinion that there is absolutely nothing in the evidence on record from which an agreement can be implied between the parties that the rent should be adjusted against the price of goods sold and delivered and labour Supplied by the defendant Metal Moulders Ltd. and Rubber Products Ltd. to the plaintiffs. If such an agreement cannot be established it is obvious that the entire ground of the present contention of Mr. M.P. Amin must disappear and the contention must fail.

Mr. M.P. Amin cited before me two decisions in support of his contention that the defendant could not be said to be in arrears of rent and that in any event the defendant could not be said to have neglected to make payment of rent. The first was an unreported decision of Chagla C.J. as he then was in Mahal Usmanbhai Daudbhai v. Maru Asmal Adam. Civil Revision Application No. 718 of 1957; and the other was a decision of the Patna High Court in Chiranjilal Poddar v. Madhusudan Thakur and Ors. : AIR1957Pat160 I would have considered these decisions in some detail had I come to the conclusion that there was an agreement between the parties that the rent should be adjusted against the price of goods sold and delivered and labour supplied by the defendant Metal Moulders Ltd. and Rubber Products Ltd. to the plaintiffs. But since in my view no such agreement existed between the parties it is not necessary for me to consider these decisions.

27. The next contention of Mr. M.P. Amin was that even if Sub-section (3)(a) of Section 12 applied to the facts of the present case there was a discretion in the Court under that Sub-section whether or not to pass a decree for eviction against the tenant. Mr. M.P. Amin urged that the word used in Sub-section (3)(a) of Section 12 was may and not must and that the use of the word may clearly imported a discretion in the Court. This contention is however in my opinion not open to Mr. Amin in this Court since there is a decision of a Division Bench of the High Court of Bombay in Kurban Hussein v. Ratikant (supra) where the view has been taken that the word may in Sub-section (3)(a) of Section 12 means must and that if the requirements of that sub-section are satisfied a decree for eviction must go against the tenant. This decision being a decision of a Division Bench of the High Court of Bombay given prior to the bifurcation of the State of Bombay is binding on me and it is not open to me to take any other view as contended for by Mr. M.P. Amin. I must therefore straightway reject this contention of Mr. M.P. Amin.

28. Mr. M.P. Amin also contended before me relying on a decision of a Division TJench of the High Court of Bombay in Mahalinga Bandappa v. Venkatesh Woman : AIR1957Bom201 that even if the defendant was not entitled to the benefit of any of the provisions, contained in Section 12 the plaintiffs could not yet recover possession of the premises from the defendant unless the plaintiffs brought the case within one of the provisions of Section 13. The contention of Mr. M.P. Amin was that the provisions of Section 12 merely contained grounds disentitling the landlord from claiming possession of premises from the tenant but the absence of such grounds disentitling the landlord from claiming possession of premises from the tenant was no ground entitling the landlord to ask for possession and that if the landlord wanted to ask for possession it was necessary for the landlord to bring his case within one of the provisions of Section 13 and that it was not enough for the landlord to base his claim for possession upon the absence of grounds which would disentitle the landlord under Section 12 from claiming possession. Mr. M.P. Amin urged that according to this construction the plaintiffs were not entitled to recover possession of the premises from the defendant even if the case fell within the provisions of Sub-section (3)(a) of Section 12 since the plaintiffs had not made out any ground entitling them to recover possession of the premises from the defendant under Section 13. Now it is true that this construction contended for by Mr. M.P. Amin is supported by the decision of the High Court of Bombay reported in : AIR1957Bom201 (supra); but I find that a contrary view has been taken by another Division Bench of the High Court of Bombay consisting of Shah and Palnitkar JJ. in Anandramdas Vallabhdas Thakkar v. Mavji Mulji Civil Revision Application No. 254 of 1956. The same contention which found favour with the Division Bench consisting of Dixit and Vyas JJ. in : AIR1957Bom201 (supra) and which has been urged before me by Mr. M.P. Amin was pressed before the Division Bench consisting of Shah and Palnitkar JJ but Shah J. delivering the judgment of the Division Bench repelled that contention in the following words:

In our view there is no substance in any of the contentions raised. It is true that under Section 13 of the Bombay Rents Hotel and Lodging House Rates (Control) Act a landlord may recover possession of premises by a tenant on any of the grounds mentioned in Clauses (a) to (1) and not otherwise but it is clear from the scheme of Chapter II of the Act. that the landlord is called upon to prove the existence of one or more of the condition prescribed in Clause (a) to (1) in Section 13(1) only in the event of the defendant-tenant pleading the protection of the Act in terms of Section 12. In our view sections 12 and 13 are parts of a single pattern and they are to be read together. Section 12 prohibits a landlord from obtaining possession of premises occupied by his tenant so long as the tenant pays or is ready and willing to pay 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 this Act. By Section 12 a prohibition is imposed as against the landlord. By Section 13 a right is conferred upon the landlord. It is only after the prohibition against the landlord is removed that the question of enforcing the rights of the landlord arises. Reading sections 12 and 13 together in our view the scheme of the Act is that the landlord can claim to obtain possession of any premises from a tenant who 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 only if the landlord satisfies the court that his case falls within Clauses (a) to (1). If however the tenant does not pay or is not ready and willing to pay the standard rent and permitted increases if any and does not observe and perform the other conditions of the tenancy the landlord is entitled to obtain possession of the premises occupied by the tenant even though he does not satisfy the Court that his case falls within any of the Clauses (a) to (1) of Sub-section (1) of Section 13 In other words the benefit of Section 13 of the Bombay Rents Hotel and Lodging House Rates (Control) Act is available to a tenant who fulfils the conditions prescribed by Section 12. By so holding we are not seeking to extend the provisions of Section 13. Only if the tenant claims protection of the statute consistently with Section 12 of the Act the landlord seeking a decree in ejectment has to bring his case within the ambit of one or more of the conditions referred to in Clauses (a) to (1) of Section 13(1).

29. It is obvious that the reasoning of the judgment of the Division Bench consisting fVf Shah and Palnitkar JJ. is logical and correct and that it is not possible to take any other view of the construction of Section 12 and 13 than that taken by the Division Bench consisting of Shah and Palnitkar JJ. It is elementary that when the tenancy of the tenant is determined by the landlord the landlord is under the ordinary law of landlord and tenant entitled to recover possession of the premises from the tenant. Section 12 however gives protection to the tenant at various stages and provides that if certain conditions are fulfilled the landlord would not be entitled to obtain a decree for eviction against the tenant notwithstanding his right under the ordinary law of landlord and tenant to recover possession of the premises from the tenant. But Section 13 provides that even in those cases where the tenant is entitled to the benefit of the provisions of Section 12 the landlord would be entitled to recover possession of the premises from the tenant if he can bring his case within any one or more of the provisions of Section 13. If the tenant does not fulfill the conditions mentioned in Section 12 the tenant is certainly not entitled to resist the claim of the landlord to recover possession of the premises and the landlord would in that event under the ordinary law of landlord and tenant be entitled to obtain a decree for eviction against the tenant. But even if the tenant fulfils the conditions mentioned in Section 12 and is therefore entitled to the protection conferred by the provisions of that section the landlord can still eject the tenant if he can show that there exists a ground under Section 13 entitling him to recover possession from the tenant. The first question therefore in a case where the landlord seeks to recover possession from the tenant is to ascertain whether the tenant is not entitled to the protection of Section 12. If the tenant is not entitled to the protection of Section 12 there is an end of the matter for in that event the decree for eviction must go against the tenant. If however the tenant is entitled to the protection of Section 12 then the question which requires to be considered is whether there is any ground under Section 13 on which the landlord can claim to recover possession of the premises from the tenant. If therefore the present case was governed by the provisions of Sub-section (3)(a) of Section 12 the defendant was not entitled to resist the plaintiffs claim for recovery of possession on the ground that the plaintiffs have not made out any ground under Section 13 entitling them to ask for possession and the decree for eviction was in that event bound to go against the defendant.

30. The last contention of Mr. M.P. Amin on this part of the case was that even if the facts were such as to bring the case within the provisions of Sub-section (3)(a) of Section 12 the defendant was still not liable to be evicted by the plaintiffs since the defendant had paid all arrears of standard rent and permitted increases upto the date of the passing of the decree by the learned trial Judge and was therefore entitled to the protection of Sub-section (1) of Section 12. The contention of Mr. M.P. Amin was that the point of time at which Sub-section (1) of Section 12 operated was the date when the decree was to be passed and if at that date the tenant had paid or was ready and willing to pay the amount of the standard-rent and permitted increases no decree for eviction could be passed against the tenant. According to Mr. M.P. Amin the prohibition enacted in Sub-section (1) of Section 12 was an overriding prohibition and that if the Court found that at the time of the passing of the decree the tenant had paid or was ready and willing to pay the amount of the standard rent and permitted increases the Court was bound not to pass a decree for eviction against the tenant notwithstanding that the requirements of Sub-section (3)(a) of Section 12 were fulfilled. The learned Advocate General on the other hand contended that the point of time at which the prohibition enacted in Sub-section (1) of Section 12 operated was the date of the filing of the suit for recovery of possession and that it was at that date that it had to be seen whether the tenant had paid or was ready and willing to pay the amount of the standard rent and permitted increases. The learned Advocate General also contended in the alternative that even if on a true construction Sub-section (1) of Section 12 operated at the time when the decree was to be passed the landlord was entitled to obtain a decree for eviction against the tenant if the requirements of Sub-section (3)(a) of Section 12 were fulfilled. If the case fell within the provisions of Sub-section (3)(a) of Section 12 argued the learned Advocate General the decree for eviction was bound to go against the tenant even if the tenant paid or was ready and willing to pay the amount of the standard rent and permitted increases before the date of the passing of the decree. These rival contentions raised a very interesting question of construction of Sub-section (1) of Section 12 and I may at once state that when the hearing of the case concluded before me on 10 October 1961 I indicated to the parties that I was inclined to accept the contention of the learned Advocate General that the point of time at which Sub-section (1) of Section 12 operates is the date of the filing of the suit and not the date of the passing of the decree and my reasons were as follows:

31. It is a well-settled principle of construction that a statute must be construed ex visceribus actus i.e. within the four corners of the Act. The office of a good expositor of an Act of Parliament said Coke in the Lincoln College Case is to make construction on all parts together and not of one part only by itself. When construing the terms of any provision found in a statute the Court is bound to consider other parts of the statute which throw light on the intention of the legislature and serve to show that the particular provision ought not to be construed as it would be alone and apart from the rest of the statute. Every clause of a statute should be construed with reference to the context and other clauses in the statute so as far as possible to make a consistent enactment of the whole statute. No part of a statute should be construed in isolation for the intention of the law-maker is to be found not in one part of the statute or another but in the entire enactment and that intention can best be gathered by viewing a particular part of the statute not detached from its context in the statute but in connection with its whole context. If this principle of construction is borne in mind it is not really difficult to arrive at a proper interpretation of Sub-section (1) of Section 12. Section 12 consists of four sub-sections of which Sub-section (3) consists of two Sub-clauses. Sub-section (1) of Section 12 must therefore be construed not in isolation but with reference to the other subsections in that section so as far as possible to make a consistent enactment of the entire section.

32. Considered in this manner it is clear that Sub-section (1) of Section 12 creates a bar against the landlord to recover possession of the premises from the tenant so long as the tenant pays or is ready and willing to pay the amount of the standard rent and permitted increases and observes and performs the other conditions of the tenancy in so far as they are consistent with the provisions of the Rent Act. Under the ordinary law of landlord and tenant the landlord is entitled to recover possession of the premises from the tenant as soon as the tenancy of the tenant is lawfully determined by the landlord; but by reason of Sub-section (1) of Section 12 a status of irremovability is conferred on the tenant so long as the tenant pays or is ready and willing to pay the standard rent and permitted increases and observes and performs the other conditions of the tenancy. Sub-section (1) of Section 12 vests the tenant with a personal right to continue in possession of the premises ant so long, as the tenant pays or is ready and willing to pay the amount of the standard rent and permitted increases and observes and performs the other conditions of the tenancy such persona] right subsists and the landlord is debarred from recovering possession of the premises from the tenant. This personal right has been described in various judicial decisions as statutory tenancy. The statutory tenancy however continues so long as the tenant pays or is ready and willing to pay the amount of the standard rent and permitted increases and observes and performs the other conditions of the tenancy; but as soon as that state of affairs ceases to exist the statutory tenancy comes to an end and the landlord becomes entitled to recover possession of the premises from the tenant; and the landlord may then in enforcement of that right file a suit to recover possession of the premises from the tenant. So long as the tenant pays or is ready and willing to pay the amount of standard rent and permitted increases and observes and performs the other conditions of the tenancy the landlord is not entitled to recover possession of the premises and cannot therefore file a suit against the tenant to recover possession of the premises. It is only when there is default made by the tenant in complying with the requirements of Sub-section (1) of Section 12 that the prohibition under Sub-section (1) of Section 12 being removed the landlord acquires the right to recover possession of the premises from the tenant and can therefore file a suit against the tenant for recovering possession of the premises. It would therefore appear that it is at the date of the filing of the suit that it must be seen whether the defendant has paid or is ready and willing to pay the amount of the standard rent and permitted increases. If the tenant has paid or is ready and willing to pay the amount of the standard rent and permitted increases at the date of the suit the landlord is obviously not entitled to recover possession of the premises from the tenant and his suit must therefore fail since in that event it cannot be said that he had any cause of action to file the suit. If on the other hand the tenant has not paid and is not ready and willing to pay the amount of the standard rent and permitted increases at the date of the suit the landlord would be entitled at the date of the suit to recover possession of the premises from the tenant and would have a cause of action which he can enforce in the suit. Looking at the question from another angle the landlord must have a cause: of action to recover possession of the premises from the tenant before he can file a suit for ejectment against the tenant and this cause of action he would not have unless it can be said that at the date of the suit the tenant has not paid and is not ready and willing to pay the amount of the standard rent and permitted increases. It is therefore clear that it is at the date of the suit that it must be seen whether the prohibition enacted in Sub-section (1) of Section 12 exists.

33. Sub-section (2) of Section 12 prescribes a condition precedent which must be fulfilled before a suit to recover possession of the premises can be instituted by the landlord against the tenant; and that condition precedent is that a notice in writing of the demand of the standard rent and permitted increases should be given by the landlord to the tenant and that one month should elapse next after the date of service of such notice on the tenant. This is obviously a condition precedent to the assumption of jurisdiction by the Court for if the condition is not fulfilled the suit for recovery of possession cannot be instituted by the landlord against the tenant and the Court would have no jurisdiction to entertain such a suit. The notice has been made a condition precedent to the filing of the suit for recovery of possession in order that a defaulting tenant may have an opportunity to make good the default by making payment of the arrears of standard rent and permitted increases and thus save himself from dispossession. No suit for recovery of possession can be filed until the expiration of one month after the date of service of the notice on the tenant so that the tenant gets a minimum period of one month within which he can make good the default. If the tenant makes good the default before the filing of the suit the minimum period available to him being one month from the date of service of the notice on him the tenant would be entitled to the protection of Sub-section (1) of Section 12 and the landlord would not be entitled to recover possession of the premises from the tenant.

The position therefore was that if the tenant fulfilled the requirements of Sub-section (1) of Section 12 at the date of the suit the tenant was protected. Even if the tenant was in default at any time he was entitled to an opportunity to make good the default before any suit for recovery of possession could be instituted against him so that if he made good the default at any time upto the date of the filing of the suit he could plead the protection of Sub-section (1) of Section 12. The legislature was however of the opinion that even if the tenant did not fulfill the requirements of Sub-section (1) of Section 12 at the date of the suit and the landlord was therefore entitled to file a suit for possession of the premises from the tenant protection should yet be given to the tenant if at the bearing of the suit the tenant paid the arrears of rent and permitted increases. The legislature therefore enacted the original Sub-section (3) which gave a still further opportunity to the tenant to protect himself from dispossession. The tenant could under the original Sub-section (3) of Section 12 pay or tender in Court the arrears of standard rent or permitted increases at any time upto the date of the passing of the decree-even at the appellate stage. It appears that the original Sub-section (3) was not found satisfactory and the legislature therefore substituted the original Sub-section (3) by Sub-sections (3)(a) and (3)(b) with effect from 31st March 1954. Sub-section (3)(a) of course provided that under certain circumstances a decree for eviction should be passed against the tenant; but Sub-section (3)(b) afforded an opportunity to the tenant to protect the statutory tenancy even after the filing of the suit by paying or tendering in Court the arrears of standard rent and permitted increases. Even if the tenant did not pay and was not ready and willing to pay the amount of the standard rent and permitted increases at the date of the suit the tenant could yet in a case governed by Sub-section (3)(b) of Section 12 pay or tender in Court the arrears of standard rent and permitted increases on the first day of the hearing of the suit or on or before such other date as the Court might fix and successfully resist the landlords claim for possession.

34. It would appear from the aforesaid discussion that the scheme of Section 12 is to provide protection to the tenant at different stages. The first stage is the date of the filing of the suit for recovery of possession. So long as the tenant pays or is ready and willing to pay the amount of the standard rent and permitted increases the landlord cannot recover possession of the premises from the tenant. If therefore at the date of the suit the tenant fulfils the requirements of Sub-section (1) of Section 12 the suit of the landlord would fail. Sub-section (2) of Section 12 affords an opportunity to the defaulting tenant to make good the default and to bring his case within the protection of Sub-section (1) of Section 12. Sub-section (3)(b) of Section 12 provides for the stage after the filing of the suit and protects the tenant in case the tenant pays or tenders in Court the standard rent and permitted increases on the first day of the hearing of the suit or on or before such other date as the Court may fix prior to the passing of the decree. The scheme of Section 12 would also therefore seem to support the view that Sub-section (1) of Section 12 operates at the date of the suit and not at the date of the decree.

35. But apart from these conditions there is one consideration which to my mind is of the greatest importance. That is that if Sub-section (1) of Section 12 is construed to operate at the date of the decree it would lead to highly anomalous situation, if Sub-section (1) of Section 12 operates at the date of the decree and the tenant could under that sub-section by paying the amount of the standard rent and permitted increases at any time upto the date of the decree defeat the landlords right to recover possession I do not see why it was at all necessary for the legislature to enact the original Sub-section (3) of Section 12. The original Sub-section (3) enabled the tenant to pay the amount of the standard rent and permitted increases upto the date of the decree and save himself from dispossession; but if that object was achieved by Sub-section (1) there was no reason at all to enact the original Sub-section (3). The construction contended for on behalf of the defendant would have had the effect of rendering the original Sub-section (3) otiose. The present Sub-section (3)(b) of Section 12 would also be superfluous if the construction contended for by the defendant is accepted. If the tenant can pay the amount of the standard rent and permitted increases at any time upto the date of the decree and defeat the landlords right to recover possession under Sub-section (1) of Section 12 Sub-section (3)(b) of Section 12 would be rendered entirely unnecessary. Sub-section (3)(b) of Section 12 protects the tenant who in cases other than those comprehended within Sub-section (3)(a) of Section 12 pays or tenders in Court on the first day of hearing of the suit or on or before such other date as the Court may fix the standard rent and permitted increases then due and thereafter continues to pay and tender in Court regularly such rent and permitted increases till the suit is finally decided and also pays costs of the suit as directed by the Court: but every case in which Sub-section (3)(b) of section. 12 applies would necessarily be covered by Sub-section (1) of Section 12. Whatever be the scope and ambit of Sub-section (3)(b) of Section 12 the area on which Sub-section (3)(b) of Section 12 operates would be wholly covered by Sub-section (1) of Section 12 for whenever the requirements of Sub-section (3)(b) of Section 12 are satisfied the requirements of Sub-section (1) of Section 12 would always be fulfilled since by complying with the requirements of Sub-section (3)(b) of Section 12 the tenant would have paid the amount of the standard rent and permitted increases before the date of the passing of the decree so as to attract the applicability of Sub-section (1) of Section 12. It is impossible to conceive of any case which would fall within Sub-section (3)(b) of Section 12 and yet not fall within Sub-section (1) of Section 12 if the construction contended for on behalf of the defendant were correct. The conditions of Sub-section (3)(b) of Section 12 are more stringent than the conditions of Sub-section (1) of Section 12 and if the tenant can in all cases including cases covered by Sub-section (3)(b) of Section 12 resist a decree for eviction under Sub-section (1) of Section 12 by making payment of the amount of the standard rent and permitted increases before the date of the passing of the decree notwithstanding past default or past absence of readiness and willingness it is difficult to see why the Legislature should have made an additional provision in Sub-section (3)(b) of Section 12 and provided more stringent conditions which the tenant must fulfill in order to be entitled to resist a decree for eviction. It is therefore obvious that whatever be the interpretation placed upon Sub-section (3)(b) of Section 12 the acceptance of the construction contended for on behalf of the defendant would have the effect of rendering Sub-section (3)(b) of Section 12 a mere surplusage - Now as observed by the Judicial Committee of the Privy Council in Ditcher v. Denison (1857) 11 Moore P.C. 325 337 it is a good general rule in jurisprudence that one who reads a legal document whether public or private should not be prompt to ascribe should not without necessity or some sound reason impute to its language tautology or superfluity and should be rather at the outset inclined to suppose every word intended to have some effect or be of some use. Therefore if there are two constructions possible the Court will prefer that construction which has the effect of giving meaning to every part of the statute rather than the construction which renders any part of the statute superfluous. In a recent case namely Hill v. William Hill (Park Lane) Ltd. (1949) A.C. 530 the House of Lords had occasion to construe Section 18 of the Gaming Act 1845 and one of the arguments advanced before the House of Lords was that two branches of that section in fact meant the same thing. Dealing with that argument Viscount Simon said as follows:

It is to be observed that though a Parliamentary enactment (like Parliamentary eloquence) is capable of saying the same thing twice over without adding anything to what has already been said once this repetition in an Act of Parliament is not to be assumed. When the Legislature enacts a particular phrase in a statute the presumption is that it is saying something which has not been said immediately before. The rule that a meaning should if possible be given to every word in the statute implies that unless there is good reason to the contrary the words add something which has not been said, immediately before.

36. If this principle of interpretation is borne in mind it is obvious that the construction contended for by the defendant cannot be accepted. If the Legislature intended to provide by Sub-section (1) of Section 12 that a decree for eviction should not be passed against the tenant if the tenant paid or was ready and willing to pay at the date of the decree the amount of the standard rent and permitted increases I do not see why the Legislature should have indulged in any repetition by enacting Sub-section (3)(b) of Section 12. It is only if Sub-section (1) of Section 12 is construed to operate at the date of the suit that any meaning can be given to Sub-section (3)(b) of Section 12.1 must assume that the legislature enacted Sub-section (3)(b) of Section 12 not in order to repeat the provisions already enacted in Sub-section (1) of Section 12 but to add something to what was already enacted in Sub-section (1) of Section 12 This assumption is consistent only with the construction that Sub-section (1) of Section 12 operates at the date of the suit. The other construction would absolutely reduce to silence the original Sub-section (3) and the present Sub-section (3)(b) of Section 12 Wand make them altogether unnecessary. This in my opinion is a very strong reason which should compel the conclusion that Sub-section (1) of Section 12 operates not at the date of the decree but at the date of the suit.

37. Apart from the original Sub-section (3) and the present Sub-section 3(b) of Section 12 Sub-section (2) of Section 12 also leads to the same conclusion. If the tenant could under Sub-section (1) of Section 12 pay the amount of the standard rent and permitted increases at any time upto the date of the decree I do not see why it was at all necessary to enact Sub-section (2) of Section 12. Why was it necessary to give any opportunity to the tenant to pay up the amount of the standard rent and permitted increases before the filing of the suit for recovery of possession? Why was it necessary to give one months time to the tenant to make good the default before any suit can be instituted against him for recovery of possession? If no adverse consequences follow from the tenant being in arrears of standard rent and permitted increases at the date of the suit there was no point in providing that before the institution of the suit a notice demanding the standard rent and permitted increases should be served by the landlord on the tenant and that a period of one month from the date of service of the notice should be allowed to the tenant for making good the default. It was precisely because the prohibition in Sub-section (1) of Section 12 related to the date of the suit that Sub-section (2) of Section 12 provided that the landlord should not be permitted to institute the suit against the tenant until the expiration of one month next after notice in writing of the demand of the standard rent and permitted increases is served upon the tenant. If the tenant was not willing and ready to pay the amount of the standard rent and permitted increases at the date of the suit the tenant would not get the protection of Sub-section (1) of Section 12 and the Legislature therefore decided that before the tenant is deprived of such protection the tenant should be given an opportunity to make good the default and that no suit for recovery of possession should therefore be filed by the landlord against the tenant until the expiration of one month after notice in writing of the standard rent and permitted increases was served on the tenant. The notice of one month demanding the standard rent and permitted increases was made a condition precedent to the institution of the suit for recovery of possession for if the tenant was in arrears of standard rent and permitted increases at the date of the suit he lost the protection afforded by Sub-section (1) of Section 12 and the Legislature felt that before he loses such protection he must have an opportunity to make good the default and to save such protection. The necessity of the notice of one month demanding the standard rent and permitted increases can therefore be explained only on the basis that Sub-section (1) of Section 12 operates at the date of the suit. If Sub-section (1) of Section 12 operates at the date of the decree the notice of one month demanding the standard rent and permitted increases would lose all purpose and meaning and Sub-section (2) of Section 12 providing for such notice would become irrational and out of place.

38. Then again another anomaly would arise if the construction that Sub-section (1) of Section 12 operates at the date of the decree were accepted. Suppose the tenant was not at all in arrears of standard rent or permitted increases at the date of the suit but fell into arrears after the date of the suit and remained in arrears right upto the date of the passing of the decree. In such a case the tenant would fulfill the requirements of Sub-section (1) of Section 12 at the date of the suit and the landlord would not therefore be entitled at the date of the suit to recover possession of the premises from the tenant. The landlord would in that event have no cause of action to file the suit for recovery of possession against the tenant and if the suit were heard on the same day on which the plaint is filed the suit would be liable to fail. But even though the landlord had no cause of action at the date of the filing of the suit the landlord would yet be entitled to a decree for eviction since at the date of the decree the tenant would be in arrears of standard rent and permitted increases and would therefore not be entitled to the protection of Sub-section (1) of Section 12. This would lead to the anomalous result that the plaintiff would succeed in a suit which had no cause of action to maintain at the date when the suit was filed. This surely could never have been the intention of the Legislature in enacting Sub-section (1) of Section 12.

39. There is also one other circumstance which militates against the construction that Sub-section (1) of Section 12 operates at the date of the decree If Sub-section (1) of Section 12 operates at the date of the decree how is it to be reconciled with Sub-section (3)(a) of Section 12

40. What is to happen in a case where the conditions mentioned in Sub-section (3)(a) of Section 12 are fulfilled but the tenant pays or is ready and willing to pay the amount of the standard rent and permitted increases at the dates of the decree? If in such a case Sub-section (3)(a) of Section 12 applies the decree for eviction must go against the tenant; but if Sub-section (1) of Section 12 applies no decree can be passed against the tenant. How is this conflict to be resolved? Mr. M.P. Amin on behalf of the defendant suggested that the prohibition enacted in Sub-section (1) of Section 12 is an overriding prohibition and to the extent to which Sub-section (3)(a) of Section 12 conflicts with it - it must prevail and Sub-section (3)(a) of Section 12 must give way. Of course at one stage Mr. M.P. Amin suggested that just as Sub-section (3)(b) of Section 12 is rendered superfluous by Sub-section (1) of Section 12 Sub-section (3)(b) of Section 12 must also meet the same fate. But this conclusion certainly cannot be reached for it is a well-known principle of construction that if there is a conflict between two provisions of a statute an attempt must be made to reconcile the conflict rather than to accept one provision and to reject the other. Apart from that Sub-section (1) of Section 12 and Sub-section (3)(a) of Section 12 do not operate on the same area so that it cannot be said that the Court has no option but to give effect to one sub-section at the cost of the other. Mr. M.P. Amin suggested that Sub-section (3)(a) of Section 12 would apply in those cases in which Sub-section (1) of Section 12 did not apply and the tenant was therefore not entitled to the protection of Sub-section (1) of Section 12. But if the tenant was not entitled to the protection of Sub-section (1) of Section 12 it is obvious that the decree for eviction would go against the tenant under the ordinary law of landlord and the tenant regardless of the fact whether the conditions mentioned in Sub-section (3)(a) of Section 12 were fulfilled or not. If that be the position why should the Legislature have provided that if certain conditions mentioned in Sub-section (3)(a) of Section 12 are fulfilled the landlord should be entitled to a decree for eviction against the tenant? Such a provision would be wholly unnecessary and it is difficult to see why the Legislature should have in such an event gone through the force of enacting Sub-section (3)(a) of Section 12? The same anomaly arises even if the word may in Sub-section (3)(a) of Section 12 is construed not as meaning must but as conferring a discretion on the Court whether or not to pass a decree for eviction. It is difficult to understand why in that event the Legislature should have provided that the Court should have a discretion to pass or not to pass a decree for eviction in a gross case where the standard rent or permitted increases might be in arrears for a period of six months or more without there being any dispute regarding the standard rent or permitted increases but that in a case where the conduct of the tenant was not so gross e.g. where the standard rent or permitted increases were in arrears for a period less than six months or where there was a dispute regarding the standard rent or permitted increases the Court should not have such discretion and that the decree for eviction should go against the tenant. The only way therefore to reconcile Sub-section (1) of Section 12 with Sub-section (3)(a) of Section 12 is by adopting the well-known rule of construction that in case of conflict between a general provision and a special provision the special provision must to the extent of the conflict prevail and the general provision must yield to the special provision. Sub-section (1) of Section 12 enacts a general prohibition that a landlord shall not be entitled to a decree for eviction against the tenant if at the date of the decree the tenant has paid or is ready and willing to pay the standard rent and permitted increases; but Sub-section (3)(a) provides that if certain conditions are fulfilled the landlord shall be entitled to a decree for eviction against the tenant. Sub-section (3)(a) of Section 12 takes the cases specified in that sub-section out of the general prohibition contained in Sub-section (1) of Section 12. If the conditions mentioned in Sub-section (3)(a) of Section 12 are fulfilled the general prohibition contained in Sub-section (1) of Section 12 is removed and the landlord is entitled to decree for eviction against the tenant. This in my opinion is the only way of reconciling the two sub-sections. If therefore the case falls within Sub-section (3)(a) of Section 12 Sub-section (1) of Section 12 cannot avail the tenant. This discussion of course has proceeded on the basis that on a true construction Sub-section (1) of Section 12 operates at the date of the decree and not at the date of the suit. But the aforesaid conclusion serves to bring out another anomaly which would arise if this construction were accepted.

41. In order to appreciate the anomaly which would arise it is necessary to consider what would be the position if Sub-section (1) of Section 12 were regarded as operating at the date of the suit and not at the date of the decree. There would be no difficulty in such a case in reconciling Sub-section (1) of Section 12 with Sub-section (3)(a) of Section 12. If the conditions specified in Sub-section (3)(a) of Section 12 are fulfilled the landlord would be entitled to a decree for eviction against the tenant but if the tenant pays up all the arrears of standard rent and permitted increases before the date of the filing of the suit the tenant would be entitled to the protection of Sub-section (1) of Section 12 and the landlord would in the event be debarred from obtaining a decree for eviction against the tenant. It is clear on a plain and grammatical construction that before Sub-section (3)(a) of Section 12 can apply two basic conditions must be satisfied. The first is that the rent should be payable by the month and the second is that there should be no dispute regarding the payment of standard rent or permitted increases. But it is not in every case where these two basic conditions are satisfied that Sub-section (3)(a) of Section 12 applies. Even in cases where these two basic conditions are satisfied Sub-section (3)(a) of Section 12 applies only if two further conditions are fulfilled and these two further conditions are expressed in the following words in Sub-section (3)(a) of Section 12 namely: if such rent or increases are in arrears for a period of six months or more and the tenant neglects to make payment thereof until the expiration of the period of one month after notice referred to in Sub-section (2) of Section 12 The crucial words here are such rent or increases and they have obviously reference to the words which precede them and which describe the nature of the rent or increases. The words such rent or increases must mean rent or increases described in the preceding words and the preceding words refer to the two basic conditions mentioned above which are qualificatory of the rent or increases. In the first place the rent must be payable by the month and secondly there must be no dispute regarding the amount of standard rent or permitted increases. The rent or increases which satisfy this description would come within the words such rent or increases. It is therefore clear that the rent or increases which must be in arrears for a period of six months or more in order to attract the applicability of Sub-section (3)(a) of Section 12 must be rent or increases in respect of which it can be said that the rent is payable by the month and there is no dispute that the rent is standard rent and that the increases are permitted increases. If such rent or increases in respect of which it can be said that the rent is payable by the month and there is no dispute that the rent is standard rent and that the increases are permitted increases are in arrears for a period of six months or more and the tenant neglects to make payment thereof i.e. of such rent or increases which are in arrears for a period of six months or more until the expiration of the period of one month after notice referred to in Sub-section (2) of Section 12 the landlord becomes entitled to obtain a decree for eviction against the tenant. It is obvious from this discussion that the following conditions must be satisfied before the landlord can invoke the aid of Sub-section (3)(a) of Section 12 against the tenant (1) the rent or increases must be in arrears for a period of six months or more; (2) the rent or increases which are in arrears for a period of six months or more must be such it can be said of such rent or increases that the rent is payable by the month and there is no dispute that the rent is standard rent and that the increases are permitted increases; and (3) the tenant must have neglected to make payment of such arrears of six months or more until the expiration of the period of one month alter notice referred to in Sub-section (2) of Section 12. Of course the last condition clearly postulates that the rent or increases must be in arrears for a period of six months or more at the date of the notice referred to in Sub-section (2) of Section 12 for otherwise it is difficult to see how the tenant can be said to neglect to make payment of such arrears until the expiration of the period of one month after the date of such notice. It is only if the arrears of rent or increases for a period of six months or more are there at the date of the notice referred to in Sub-section (2) of Section 12 that the tenant can neglect to make payment of such arrears during the entire period of one month from the date of such notice It is therefore plain that at the date of the notice referred to in Sub-section (2) of Section 12 the tenant must be in arrears of rent or increases for a period of six months or more-the rent or increases which are in arrears being such that it can be said of them that the rent is payable by the month and there is no dispute that the rent is standard rent and that the increases are permitted increases and the tenant must neglect to make payment of such arrears until the expiration of the period of one month after such notice before the provisions of Sub-section (3)(a) of Section 12 can become applicable. The whole object of Sub-section (3)(a) of Section 12 seems to be that where the rent is payable by the month and there is no dispute regarding the standard rent or permitted increases the tenant can have no justification for allowing the rent or increases to run into arrears and if notwithstanding the fact that there is no dispute that the rent is standard rent and that the increases are permitted increases the tenant allows the rent or increases to run into arrears for a period of six months or more and despite an opportunity given to him by a notice under Sub-section (2) of Section 12 to pay off such arrears which have accumulated for a period of six months or more the tenant neglects to make payment of such arrears until the expiration of the period of one month after the date of such notice the tenant should not have any protection from dispossession and the landlord should be entitled to obtain a decree for eviction against the tenant. The landlord would under Sub-section (2) of Section 12 be entitled to file a suit for recovery of possession of the premises against the tenant as soon as the period of one month after the notice given under that sub-section expires and the self-same period of one month is therefore provided under Sub-section (3)(a) of Section 12 for the tenant to make payment of the rent or increases which have been allowed by the tenant to run into arrears for a period of six months or more even though the rent is payable by the month and there is no dispute regarding the amount of standard rent or permitted increases. No sooner the period of one month expires without the tenant having paid off the arrears of rent or increases which have accumulated for a period of six Months or more the landlord can immediately file a suit for recovery of possession of the premises against the tenant and in such a suit for recovery of possession the tenant would have no defence against the landlord. Even if the tenant makes payment within the period of one month of a part of the rent or increases which are in arrears the tenant would still fall within Sub-section (3)(a) of Section 12 since in such a case it can still be said that the tenant has neglected to make payment of the entire arrears of rent or increases within the period of one month. Equally would the tenant fall within the provisions of Sub-section (3)(a) of Section 12 if the tenant does not make payment of any part of the arrears of rent or increases within the period of one month but makes payment of a part of the arrears of rent or permitted increases after the expiration of the period of one month before the date of the filing of the suit. If however the tenant does not make payment of the entire arrears of rent or increases within the period of one month but clears off all such arrears after the expiration of the period of one month but before the filing of the suit the tenant would be able to bring his case within the protection of Sub-section (1) of Section 12 and in that event notwithstanding the fulfillment of the conditions specified in Sub-section (3)(a) of Section 12 the landlord would not be able to secure a decree for eviction against the tenant. Of course in such a case the tenant would be running a risk because the landlord may file a suit for recovery of possession immediately on the expiration of the period of one month and may not wait any longer in which event the tenant would not have time left to pay up the arrears of standard rent and permitted increases before the filling of the suit and the tenant would consequently lose the protection of Sub-section (1) of Section 12. The tenant who has allowed the rent or increases to run into arrears for a period of six months or more without there being any dispute regarding the amount of standard rent or permitted increases and who has received the notice referred to in Sub-section (2) of Section 12 can therefore save himself from being thrown out of the premises either by making payment of such arrears within a period of one month next after such notice or by making payment of such arrears before the filing of the suit. In the first case the tenant would not fall within the provisions of Sub-section (3)(a) of Section 12 since the conditions specified in Sub-section (3)(a) of Section 12 would not be fulfilled while in the second case though the conditions specified in Sub-section (3)(a) of Section 12 would be fulfilled the tenant would yet go out of the provisions of Sub-section (3)(a) of Section 12 by reason of the provisions of Sub-section (1) of Section 12. Of course the tenant may also on receiving the notice referred to in Sub-section (2) of Section 12 instead of making payment of the arrears of rent or permitted increases decide to dispute the amount of standard rent or permitted increases and make an application for the purpose of fixing the amount of standard rent or permitted increases within a period of one month from the date of such notice; if the tenant makes such an application and thereafter pays or tenders the amount of rent or permitted increases specified in the order made by the Court the tenant would be deemed to be ready and willing to pay the amount of the standard rent and permitted increases and would be entitled to the protection of Sub-section (1) of Section 12. To summarize the position: if the conditions specified in Sub-section (3)(a) of Section 12 are fulfilled the landlord would be entitled to obtain a decree for eviction against the tenant unless of course the tenant has paid off all arrears of rent and permitted increases before the filing of the suit in which event the tenant would be entitled to the protection of Sub-section (1) of Section 12 notwithstanding the fulfillment of the conditions specified in Sub-section (3)(a) of Section 12; so also would the tenant be entitled to the protection of Sub-section (1) of Section 12 if he avails himself of the explanation and makes an application to the Court under Sub-section (3) of Section 11 within a period of one Month after the notice referred to in Sub-section (2) of Section 12 and thereafter pays or tenders the amount of rent or permitted increases specified in the order made by the Court. And this would be so notwithstanding that the tenant has not paid the rent or increases until the expiration of the period of one month after the notice referred to in Sub-section (2) of Section 12 and the conditions of Sub-section (3)(a) of Section 12 are therefore fulfilled. The bar against recovery of possession contained in Sub-section (1) of Section 12 would apply whenever the conditions specified in that sub-section are fulfilled and Sub-section (3)(a) of Section 12 would entitle the landlord to obtain a decree for eviction against the tenant only when the bar against recovery of possession contained in Sub-section (1) of Section 12 does not operate. This would be the position if Sub-section (1) of Section 12 were regarded as operating at the date of the suit and not at the date of the decree. But if Sub-section (1) of Section 12 is construed to operate at the date of the decree and not at the date of the suit-the only way of reconciling the Sub-section (1) of Section 12 with Sub-section (3)(a) of Section 12 would be as pointed out in the preceding paragraph to regard the general prohibition contained in Sub-section (1) of Section 12 as removed when the conditions mentioned in Sub-section (3)(a) of Section 12 are fulfilled so that in case of conflict between Sub-section (1) of Section 12 and Sub-section (3)(a) of Section 12 Sub-section (3)(a) of Section 12 must prevail as against Sub-section (1) of Section 12. If Sub-section (1) of Section 12 were regarded as the paramount provision to which Sub-section (3)(a) of Section 12 must yield the result would be that the right to recovery of possession which would be vested in the landlord at the date of the suit by reason of the fulfillment of the conditions specified in Sub-section (3)(a) of Section 12 would in all cases be liable to be defeated by the tenant by making payment of the standard rent or permitted increases before the date of the passing of the decree and the provision enacted in Sub-section (3)(a) of Section 12 would for the reasons set out above be rendered superfluous. Sub-section (3)(a) of Section 12 cannot therefore be subordinated to Sub-section (1) of Section 12 but must be regarded as taking the cases specified in Sub-section (3)(a) of Section 12 out of the general prohibition contained in Sub-section (1) of Section 12 But the consequence of this reconciliation would be rather anomalous. Suppose in a particular case the conditions mentioned in Sub-section (3)(a) of Section 12 are satisfied in the sense that the rent is payable by the month there is no dispute regarding the standard rent or permitted increases the standard rent or permitted increases are in arrears for a period of six months or more and the tenant has neglected to make payment thereof until the expiration of the period of one month from the date of service of the notice under Sub-section (2) of Section 12; but the tenant has paid up all the arrears of standard rent and permitted increases before the date of the filing of the suit In the above view even if the tenant has paid up all the arrears of standard rent and permitted increases before the date of the filing of the suit the landlord would be entitled to a decree for eviction against the tenant since the conditions mentioned in Sub-section (3)(a) of Section 12 would be fulfilled. The tenant would not get the benefit of Sub-section (1) of Section 12 even though the tenant has paid up all the arrears of standard rent and permitted increases prior to the institution of the suit. This would indeed be a strange result which could never have been intended by the legislature.

42. For all these reasons I was inclined to take the view that Sub-section (1) of Section 12 operates at the date of the suit and not at the date of the decree. This view which I was inclined to take was supported not only by several decisions of the High Court of Bombay but also by some decisions of the Courts in England. I shall briefly refer to them.

The first decision to which I must refer is Mathurdas Maganlal v. Nathubhai Vithaldas XXV Bombay Law Reporter 345. In that case the question arose whether Section 9(1) of the Bombay Rent (War Restrictions) Act 1918 applied at the date of the suit or at the date of the decree. That section was in the following terms:

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

The contention of the defendant was that the conditions laid down in that section applied at the date of the order and that even if the tenant had made any default in payment of arrears of rent at the time when the suit was filed yet he had under that section a locus penitentiae and if he brought the arrears of rent into Court the Court could not pass a decree for eviction against him. Pratt J. negatived this contention and held that the conditions laid down in that section applied at the date of the suit and not at the date of the decree. The learned Judge referred to two decisions of the Courts in England on the corresponding section of the English Act and observed as follows:

The section is based on the corresponding section of the English Act the Increase of Rent and Mortgage Interest (War Restrictions) Act 1915 which is as follows:

No order for the recovery of possession of a dwelling house to which this Act applies or for the ejectment of a tenant therefrom shall be made so long as the tenant continues to pay rent at the agreed rate as modified by this Act and performs the other conditions of the tenancy.

This section is also in the present tense but nevertheless it has been construed in England as importing a condition precedent which must be fulfilled by the tenant not at the time when the Court has to make its order but at the time when the writ is served.

In Beavis v. Carman (1920) 36 T.L.R. 396 397 Lawrence J. said:

There was a right in the landlord to possession when the writ was served...and there was no locus penitentiae on the part of the tenant nor could he (his Lordship) reinstate the tenant, as though he had continued to pay the rent and performed the terms of the tenancy.

So also in the case of Davies v. Bristow (1920) 3 K.B. 428 436 the section was construed as constituting a condition precedent to the right of a tenant to claim the protection of the Act that he should have paid the rent and performed his obligations under the tenancy agreement.

I think that is the proper construction of Section 9(1) of the Bombay Rent Act. The present tense is used not to describe anything that the tenant does or may do at the time when the Courts order is made but to describe the conduct of the tenant which entitles him to plead the Rent Act i.e. the conduct of the tenant upto or at the time when the suit was filed.

43. It will thus be seen that though Section 9(1) of the Bombay Rent (War Restrictions) Act 1918 which came up for consideration before the learned Judge provided that no order for recovery of possession of any premises shall be made so long as the tenant pays or is ready and willing to pay rent to the full extent allowable by that Act and performs the conditions of the tenancy the learned Judge construed that section to mean that if the conditions laid down in that section were fulfilled by the tenant at the date of the suit no decree for eviction could be passed against the tenant. In the present case the language of Sub-section (1) of Section 12 is more strongly in favour of this view for whereas Section 9(1) provided that no order for recovery of possession shall be made if the conditions laid down in that section are fulfilled Sub-section (1) of Section 12 provides that the landlord shall not be entitled to recovery of possession of the premises if the conditions mentioned therein are fulfilled.

44. This decision was approved by a Division Bench of the High Court of Bombay in Ismail Dada Bhamani v. Bai Zuleikhabai XLVI Bombay Law Reporter 244. The Division Bench of the Bombay High Court construed Section 11 of the Bombay Rent Restrictions Act 1939 which corresponded to Section 9(1) of the Bombay Rent (War Restrictions) Act 1918 in the same manner as Pratt J. in Mathurdas v. Nathubhai (supra) and held that the relevant point of time to consider whether the conditions specified in that section were fulfilled was the time when the suit was filed.

45. The same view was taken by Chagla C.J in Gomtibai Morarji v. Tapu Bhimji Civil Revision Application No. 785 of 1952 as regards the construction of Sub-section (1) of Section 12. The learned Chief Justice in a judgment delivered on 13th February 1953 in this Civil Revision Application observed as follows:

Mr. Gupte has attempted to argue that the expression so long as the tenant pays or is ready and willing to pay does not merely apply to his readiness and willingness at the date of the filing of the suit but the period is extended to any time till the passing of the decree. I am unable to accept that contention. This very expression was construed by Mr. Justice Pratt in 25 Bom. L.R. 345 Mathuradas v. Nathubhai and that decision has been approved by a Division Bench in Ismail Dada Bhamani v. Bai Zuleikhabai 46 Bom. L.R. 244 and has been recently further confirmed by Mr. Justice Bavdekar and Mr. Justice Chainani in Second Appeal No. 202 of 1950. It is obvious that that view is correct because the only reason for enacting Sub-section (3) was to give a further protection to the tenant even though the tenant had not paid rent due by him at the date of the filing of the suit. If Mr. Guptes construction of readiness and willingness was correct then there was no necessity of enacting Sub-section (3).

This decision of Chagla C.J and the decision of Bavdekar and Chainani JJ. referred to in the aforesaid observations clearly supported the view that I was inclined to take as regards the construction of Sub-section (1) of Section 12.

46. A similar view was also taken by the Court of Appeal in England in Bird v. Hildage (1948) 1 K.B. 91. The statute which came up for consideration in that case was the Rent and Mortgage Interest Restrictions (Amendment) Act 1933 Schedule I whereof provided in so far as is material for the purpose of the present discussion that:

A Court shall for the purposes of Section 3 of this Act have power to make...an order....for...possession of any dwelling-house within the Rent Restriction Acts...without proof of suitable alternative accommodation (where the Court considers it reasonable so to do) if (a) any rent lawfully due from the tenant has not been paid or any other obligation of the tenancy has been broken or not performed....

The question arose as to what was the date on which it had to be determined whether the rent had been paid or not. Cohen L.J. delivering the judgment of the Court of Appeal answered the question in the following terms:

Section 3 and schdule 1 lay down the circumstances in which the Court may make an order or give a judgment for recovery of possession and we think that in reaching a conclusion whether any rent is lawfully due and has not been paid the Court must look at the date of institution of the proceedings by which the landlord is seeking to recover possession. The rights of the parties crystallized at that date and nothing happening thereafter could in our opinion deprive the Court of jurisdiction to make an order for recovery of possession if the Court thought it reasonable to do so: see Beavis v. Carman (1920) W.N. 159 In that case the plaintiff sought to recover possession from the defendant and the defendant relied on schedule 1 Sub-Section 3 of the Rent and Mortgage Interest (War Restrictions) Act 1915 which so far as material provided: No order for the recovery of possession of a dwelling-house to which this Act applies or for the ejectment of a tenant therefrom shall be made so long as the tenant continues to pay rent at the agreed rate as modified by this Act and per forms the other conditions of the tenancy.... The tenant had failed to pay the rent up to the date of institution of the proceedings but tendered the rent after he had been served with the writ in the action. He contended that he had thus put Himself in the position of a tenant who had paid rent at the agreed rate as modified by the Act. The judge rejected the contention saying: to give effect to that contention would be to disregard the true meaning of the enactment. The plaintiff had a right to recover possession of the premises when the writ was served and nothing had happened since to deprive her of that right. The case concerns only the tender of rent after proceedings brought and not the case of tender before the institution of the proceedings which in our view is the material date. Before the Court can have jurisdiction the landlord must prove two things namely (1) that some rent was lawfully due from the tenant at the date of the institution of the proceedings and (2) that that rent was unpaid.

This decision of the Court of Appeal also therefore lent considerable support to the view which I expressed to the parties at the conclusion of the arguments that I was inclined to take in regard to the construction of Sub-section (1) of Section 12.

47. But after the hearing was concluded and before I could deliver judgment my attention was drawn to a decision of the Supreme Court in Shah Bhojraj Kuverji Oil Mills and Ginning Factory v. Subhash Chandra Yograj Sinha : [1962]2SCR159 where the view has been taken by the Supreme Court that the point of time when Sub-section (1) of Section 12 operates is when the decree for recovery of possession is to be passed. Since this decision of the Supreme Court completely covered the question of construction of Sub-section (1) of Section 12 I gave notice to the parties and invited the parties to say whatever they wanted to say in regard to this decision. This decision clearly and unmistakably lays down that Sub-section (1) of Section 12 operates at the date of the decree and not at the date of the suit and upholds the contention urged before me by Mr. M.P. Amin on behalf of the defendant. Of course my view before this decision was pointed out to me was that Sub-section (1) of Section 12 operates at the date of the suit and not at the date of the decree but in view of this decision of the Supreme Court it is not open to me to hold that Sub-section (1) of Section 12 operates at the date of the suit and not at the date of the decree. I respectfully bow to this decision of the Supreme Court and hold that the relevant point of time to consider whether the conditions mentioned in Sub-section (1) of Section 12 are fulfilled is the time at which the decree is to be passed. But as I have pointed out above this construction of Sub-section (1) of Section 12 does not help the defendant for if his case is covered by Sub-section (3)(a) of Section 12 then notwithstanding the fulfillment by him of the conditions mentioned in Sub-section (1) of Section 12 a decree for eviction must go against him.

48. There remains only the last point urged before me by Mr. M.P. Amin on behalf of the defendant. Mr. M.P. Amin contended that the plaintiffs were not the lessors under the Deed of Lease but that the lessors were Dhirajlal Khushaldas and Co. Agents of the plaintiffs and that the plaintiffs were therefore not entitled to maintain the suit for recovery of possession of the premises against the defendant. This contention is a contention of despair and is too puerile to be mentioned. There is little doubt that the plaintiffs were the lessors of the premises and that the defendant dealt with the plaintiffs on the basis that they were the lessors. The account in respect of the rent and municipal taxes and the price of goods sold and delivered and labour supplied by the defendant Metal Moulders Ltd. and Rubber Products Ltd. to the plaintiffs was stated between the plaintiffs on the one hand and the defendant Metal Moulders Ltd. and Rubber Products Ltd. on the other and the balance of Rs. 18 204 was agreed by the defendant to be payable to the plaintiffs as recorded in the letter dated 6th August 1953. I do not see why the defendant should have agreed to adjust the account with the plaintiffs and to set off the items of claims of the defendant Metal Moulders Ltd. and Rubber Products Ltd. in respect of the price of goods sold and delivered and labour supplied by them to the plaintiffs against the items of claim in respect of rent and municipal taxes if the plaintiffs were not the lessors of the premises and were not entitled to claim rent and municipal taxes in respect of the premises from the defendant. It may also be mentioned that the notice dated 26th February 1954 was given by the plaintiffs to the defendant demanding Rs. 28 677 from the defendant and terminating the tenancy of the defendant as from 31 January 1953 and yet the defendant did not raise any objection to the notice until 20th January 1955. If the plaintiffs were not the lessors of the defendant the first thing that the defendant would have done would have been to write to the plaintiffs enquiring as to why the plaintiffs had given notice to the defendant when there was no relationship of lessor and lessee between the plaintiffs and defendant. The entire conduct of the defendant is destructive of the present contention urged by Mr. M.P. Amin on behalf of the defendant. The defendant throughout treated the plaintiffs as the lessors in respect of the premises and I do non see how the defendant can contend that it was not the plaintiffs but Messrs. Dhirajlal Khushaldas & Co. who were the lessors of the defendant. The present contention of Mr. M.P. Amin must therefore be rejected.

49. In the result I allow the Revision Application set aside the decree passed by the learned District Judge and restore the decree passed by the learned trial Judge dismissing the plaintiffs suit. The plaintiffs will pay the costs of the Revision Application to the defendant.


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