1. This is an appeal by Mt. Tulchhi against the decree of a learned Single Judge of this Court in second appeal.
2. The facts of the case are these. An ejectment suit was instituted by Mt. Tulchhi in the Court of Munsif, Sujangarh, against Suraj Mal and Jugraj. The suit related to three shops situated in Chhapar. These shops were rented to Suraj Mal and Jugraj, defendants-respondents by Mt. Tulchhi for a fixed period of one year on 'Asoj Sud 12, Samvat' 2003. The respondents did not vacate the shops after the period of one year was over, and consequently the pre-sent suit was brought for ejectment and recovery of Rs. 79/- as damages for use and occupation.
3. The suit was resisted by the defendants-respondents on the ground that they were protected under Clause 3 of the Bikaner Prevention of Eviction Order, 1942, and could not, therefore, be ejected.
4. The suit was decreed by the trial Court, and the decree was upheld by the first Appellate Court. There was a second appeal to this Court by the defendants, which was allowed by the learned Single Judge, who, however, gave permission for leave to appeal to a Division Bench under Section 18(2) of the Rajas-than High Court Ordinance. The present appeal has been filed in view of that permission.
5. The matter in dispute now is only about ejectment. Clause 3 of the Bikaner Prevention of Eviction Order, 1942, reads as follows:
'No notice of eviction served by a landlord on his tenant requiring him to vacate his house on or after the 30th day of June shall be valid, and no action would be open under it either in Court or otherwise.
Provided that nothing herein contained shall be a bar to eviction for non-payment of rent or for any other material breach of the terms of the tenancy.'
The question that falls for consideration is whether the defendants-respondents are protected under this provision. The learned Judge of this Court was of opinion that this clause applied to the present case, and the defendants-respondents were protected. His interpretation of the clause is that whenever a notice is given before the 30th of June in any year, the notice is valid, and the tenant can be ejected; but if the notice is given after the 30th of June in any year the notice becomes invalid, and no ejectment can take place. He has further come to the conclusion that the notice of eviction mentioned in Clause 3 need not be a notice in writing at all, and that these words merely mean a demand for eviction, and that this demand can be oral, and that it may even be presumed from the fact that a suit had been riled for ejectment. The learned Judge gave leave to appeal, because in an earlier case, 'BALCHAND V. BANSIDHAR', 1950 Raj LW 279, one of us gave a different interpretation to this clause. The view taken in that earlier case was that Clause 3 of the Bikaner Prevention of Eviction Order, 1942, applied only to such suits for ejectment which were based on a notice to quit, and would not apply to such suits in which no notice was necessary. It was also held that this clause applied in every case based on a notice to quit after the 30th June, 1942. On both points, therefore, there was a difference of opinion between two learned Judges of this Court.
6. The order in question was passed on the 26th June, 1942. Clause 3 of that Order mentions 30th of June, but not the year. It seems to us, however, that it would be absurd to interpret the Order to mean that for the first six months of each year it was open to the landlord to eject the tenant without any hindrance and that in the last six months, the landlord could not do so. We are certain that no legislative authority would pass a law which would be one thing for the first six months of the year, and a different thing for the last six months. We are, therefore, of opinion that though the year 1942 does not appear in Clause 3, the reasonable interpretation to be put on itis that it applies to all cases based on notice of eviction after the 30th of June, 1942.
7. The next and more important question is as to what meaning should be attached to the words 'notice of eviction' in this case, and whether this clause only applies to those cases in which a notice to quit is necessary. We are of the opinion that the words 'notice of eviction' in Clause 3 cannot mean a mere demand to vacate the premises whether oral or otherwise, when we look to certain words in this clause. We may mention that the clause requires notice of eviction to be served by a landlord on his tenant. To our mind this notice of eviction, which has to be served on the tenant, must be a notice in writing. Service implies some kind of process in writing, and therefore, the notice of eviction in Clause 3 can be no other than the notice to quit, which is prescribed in Section 106 of the Transfer of Property. Act. Further, the later part of this clause provides that no action would be open under it viz., the notice. This, in our opinion, presupposes that the notice is earlier than the action to be taken under it, and it cannot therefore, be said that the mere filing of the plaint would amount to notice of eviction for the purposes of this clause. Reading, therefore, Clause 3 as a whole, there can be no doubt that this clause refers to a notice to quit which has to be served in writing on the tenant, and prescribes that no action under such a notice to quit would be taken in Court or otherwise.
8. The next question which arises is whether this clause applies at all to those cases in which no notice to quit is required under the law. It has been urged that the Transfer of Property Act was not in force in the former State of Bikaner, and the distinction, therefore, between cases in which notice to quit is necessary and in which it is not necessary should not be drawn. There is no doubt that the Transfer of Property Act was not in force in the former Bikaner State; but it used to be held by the High Court of the former Bikaner State that though the Transfer of Property Act was not in force in the State, the principles of that Act were applicable in suits for ejectment vide 'BALIDAN V. BHENRUNDAN', Law Report, Raj Shri Bikaner, Vol. 20, Parts-I & II, p. 16. It is true that the technical provisions of the Transfer of Property Act relating to ejectment may not be applicable in the former State of Bikaner; but the general principles of that Act were apparently applied by the High Court of the former Bikaner State. It is one of the general principles of the Transfer of Property Act that in the absence of a contract, or local law or usage to the contrary, no tenant of immoveable property would be ejected without notice. Section 106 goes on to provide for compliance with certain other matters, and these may not be applicable to the former Bikaner State; but the general principle that in the absence of a contract or local law or usage to the contrary, the tenant would not be ejected without notice, was applicable in the former Bikaner State, as shown by the case of 'BALIDAN v. SETH BHENRUNDAN', mentioned above. Another general principle in the Transfer of Property Act is that notice is not necessary for leases for a fixed term, which are determined by efflux of time. We are of opinion that even in the former Bikaner State, though the Transfer of Property Act was not applicable, a distinction was drawn between those tenancies in which no notice was necessary for the purpose of ejectmentand those in which such notice was necessary. We have, therefore, to interpret Clause 3 of the Bikaner Prevention of Eviction Order, 1942, in the light of this background. This clause invalidates all notices to quit served after the 30th of June, 1942 and prohibits any action in Court or otherwise on such notices. It follows, therefore, that in all cases of ejectment where a notice to quit is necessary, no ejectment was possible after the 30th of June, 1942, except in cases covered by the proviso, namely, where there was non-payment of rent or any material breach of the terms of the tenancy. The present case is not covered by the proviso, because it is not based on non-payment of rent; nor can it be said to be based on any material breach of the terms of the tenancy. It was urged that there was a material breach of the terms of the tenancy, inasmuch as the tenants did not quit after the period of one year, which was the period fixed in the lease. We are of opinion that this could not be called a material breach of the terms of the tenancy; and the failure to vacate the building on the expiry of the period fixed in the contract of tenancy does not constitute a material breach of the terms of the tenancy.
9. The question, however, still remains whether Clause 3 was meant to apply to all cases of ejectment or only to those cases in which notice to quit was necessary. Considering the language of this clause, we are of opinion that it could apply only to those cases where a notice to quit was necessary, because it only invalidated the notice to quit and prohibited the Courts to act on a notice to quit. It could not, in our opinion, apply to those cases where no notice to quit was necessary. It may be that the legislative authority in Bikaner may have thought it fit to give protection only in those cases where the tenancy was for an indeterminate period, and a notice to quit was necessary. It may not have thought it wise to protect those tenants who had taken the premises for a fixed period, and may have left them to the remedies of the ordinary law. If the intention was to protect the tenants generally, a more general provision would have been made, such as one finds in many other laws of the same kind. In this connection we may refer to the words of the Patna House Rent Control Order, 1942, and the Marwar House Rent Control Act. In the former it was laid down that
'no order for the recovery of possession of any house shall be made so long as the tenant pays or is ready and willing to pay rent to the full extent allowable by the Order and performs the conditions of the tenancy.'
In the latter, it was provided that
'no tenant shall be evicted from a house which he holds on rent except upon one of the following grounds: (which were mentioned therein).'
But the Bikaner Order merely invalidates the notice to quit, and prohibits action on such notice. There can be no doubt, therefore, that where no notice to quit is necessary, as in the present case, Clause 3 of the Bikaner Prevention of Eviction Order, 1942, does not apply. In the present case, the tenancy was for a fixed period of one year, and came to an end by efflux of time, and no notice to quit was necessary.
10. The result, therefore, is that the appeal must be allowed. We, therefore, allow the appeal, set aside the order of the learned Single Judge, and restore the order of the trial Court and the first Appellate Court. The appellant will get her costs from the respondents throughout.