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Balchandra Vs. Banshi Dhar and ors. - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtRajasthan High Court
Decided On
Case NumberAppeal No. 20 of 1950
Judge
Reported inAIR1950Raj56
ActsTransfer of Property Act, 1882 - Sections 8 and 105; Bikaner Prevention of Eviction Order, 1942 - Sections 3
AppellantBalchandra
RespondentBanshi Dhar and ors.
Appellant Advocate Utsava Lal, Adv.
Respondent Advocate Than Chand, Adv. for Respondent No. 2
DispositionAppeal dismissed
Cases ReferredIn Kuniyal Chandu v. Sankaran
Excerpt:
- - 3. the respondents brought this suit on 8th november 1948, for ejectment of the defendant appellant for having failed to vacate the shop, as agreed upon, and also sued for recovery of rs......that the omission to vacate according to the terms of the lease was a material breach of the terms of tenancy.5. in this appeal it is contended that the notice to vacate the shop is invalid, and, therefore, the plaintiff's claim for eviction of the defendant should be rejected. certain authorities ware cited to show that the non-compliance with the term providing the eviction from the premises was not real breach of the terms of tenancy. the learned advocate for the respondents, however argued that the document of 8th july 1948, should he taken not as one creating the relationship of landlord and tenant between the parties, but as one which provided for vacating the shop by the defendant after the specified period. in the alternative he argued that the present case was outside the.....
Judgment:

Bapna, J.

1. This is a defendant's appeal in a suit for ejectment and arrears of rent.

2. The appellant, Bal Chandra was tenant of a shop at Sujangarh under one Jagannath at a rent of Rs. 181 per annum. The said Jagannath gold the shop to the respondents Bansidhar and Mal Chandra, on 5th July 1948. On 8th July 1948, the appellant executed a document, Ex. P.-1 agreeing to hold the shop from 6th July 1948, as a tenant of the respondents at Rs. 23 a month, and fixed the period of tenancy at two months. It was stipulated that Bal Chandra would vacate the shop after the expiry of two months without any hesitation, failing which the landlords were authorised to sue for ejectment. On 26th August 1948, the respondents sent a notice to the appellant to vacate the shop on or before the due date according to the agreement.

3. The respondents brought this suit on 8th November 1948, for ejectment of the defendant appellant for having failed to vacate the shop, as agreed upon, and also sued for recovery of RS. 53-5-0 as rent in arrears till the date of the suit. The appellant resisted the suit on the ground that the document of lease executed by him was under coercion. He stated that Jagannath had been taking proceedings against him for vacating the shop under Bikaner Prevention of Eviction Order, 1942, which the plaintiffs were intending to continue, and the defendant executed the deed in order to pat an end to those proceedings. He pleaded that he could not be evicted under the provisions of the said order. The other pleas related to the non-liability of rent at the enhanced rate, but the point is not now challanged in this appeal.

4. The trial Court found against the defendant on the plea of coercion an undue influence, and that the defendant was not entitled to a benefit of the Bikaner Prevention of Eviction Order, 1942, in view of the terms of his contract, and decreed the suit. His appeal was dismissed on the ground that the omission to vacate according to the terms of the lease was a material breach of the terms of tenancy.

5. In this appeal it is contended that the notice to vacate the shop is invalid, and, therefore, the plaintiff's claim for eviction of the defendant should be rejected. Certain authorities ware cited to show that the non-compliance with the term providing the eviction from the premises was not real breach of the terms of tenancy. The learned advocate for the respondents, however argued that the document of 8th July 1948, should he taken not as one creating the relationship of landlord and tenant between the parties, but as one which provided for vacating the shop by the defendant after the specified period. In the alternative he argued that the present case was outside the scope of the Prevention of Eviction Order, 1942.

6. It may be stated at once that while it may have been the intention of the plaintiffs to let the defendant occupy the premises for two months by way of indulgence, the language of the document is unequivocal, and creates a relationship of landlord and tenant between the plaintiffs and the defendant from 5th July 1948. It may also be conceded that where the legislation enacted for the purpose of giving relief to the tenants against eviction prevents eviction of tenants generally except on certain grounds, including the one that the tenant has committed a material breach of the terms of tenancy, the phrase would mean breach of the terms other than those laid down for re-entry of the landlord. This has been held in Kuniyal Chandu v. M. Sankaran, A. I. R. (28) 1941 Mad. 558: (193 I. C. 422), Mohammad Ishaq v. Hidayatullah, 1948 Jaipur L. R. 364 and Mrs. Dharamsila Lall v Bibi Amna A. I. R. (35) 1948 Pat. 269 . (26 Pat 693). This was the view which I took in the Jaipur case, cited above, with which the Hon'ble the Chief Justice had agreed. An unreported judgment of the Jodhpur High Court in S. B. civil Appeal No. 43 of 1948-49, dated 9 6-1949 has also been cited.

7. The provisions of the Rent Restriction Acts in all the cases cited by the appellant are differently worded. For instance, in Patna the House Rent Control Order, 1942, provided, 'no order for the recovery of possession of any house shall be made so long as the tenant pay or is ready and willing to pay rent to the full extent allowable by this order and performs the conditions of the tenancy.' In Kuniyal Chandu v. Sankaran, A. I. R. (28) 1941 Mad. 558 : (198 I. C. 452), Section 20 of Malabar Tenancy Act, 1930, was 'No suit for eviction of a customary verumpattamdar. ..... shall lie at the instance of his landholder except on the following ground.' In the Jodhpur case also the language used in the Marwar House Rent Control Act is as follows: 'No tenant shall be evicted from a house which he holds on rent except upon one of the following grounds' Then follow the grounds.

8. The appellant is, however, not in the same position as in the cases cited above because the provisions of law in Bikaner have been differently worded. The relevant section of the Bikaner Prevention of Eviction order, 1942, is as under:

'3. No notice of eviction served by a landlord on his tenant requiring him to vacate his house on or after 30th day of June (1942), shall be valid and no action would be open under it either in Court or otherwise : Provided that Nothing herein contained shall be a bat to eviction for non-payment of rent or for any other material breach of the terms of tenancy.'

9. Certain sections of the said order, following the section quoted above, lay down the procedure for service of notice through the Court of a Magistrate in case the landlord required the premises for his own occupation and the steps which the Magistrate was directed to take under various circumstances.

10. An examination of the Section 3, Bikaner Prevention of Eviction Order makes it clear that it only affects suits for ejectment which may be baaed on a notice to quit, but would not touch suits where no such notice may be necessary. In the present case the entire term of tenancy was for two months, and according to Section 111, T. P. Act, no notice is required for determination of tenancy which expired by efflux of time limited by the agreement of lease. The suit is based not on the notice to quit but on the determination of the tenancy by expiry of the period fixed under the agreement of lease. Section 3, therefore, does not help the defendant in any way. The notice was only a sort of reminder to the defendant of agreement.

11. The Law in Bikaner, which has to be applied in the present cage is not so restrictive, and only provides for cases where notice for eviction would be necessary before filing a suit. It may be that the legislature did not think it necessary to interfere where the tenant had contracted to hold the premises for a specified period only or to touch the several other modes in which the tenancy may be determined, as for example, by denial of the landlord's title.

12. The learned counsel for the respondents also tried to support the judgment on the ground that there wore arrears of rent outstanding against the defendant, but this was not made the basis of suit, and need not be considered at this stage.

13. As a result, I agree with the conclusion arrived at the lower Court, though on different grounds. The appeal fails and is dismissed with costs.

14. Mr. Utsava Lal wants a certificate for leave to appeal to a Division. Bench under Section 18 (2), High Court Ordinance. The certificate is granted.


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