K. Veeraswami, C.J.
1. This Civil Revision Petition comes before us on a reference made by Ramaprasad Rao, J, as he considered that an authoritative decision should be made as to whether Raval & Co. v. Ramachandran : (1966)2MLJ68 , in so far as it relates to eviction on ground of default in payment of rent, is still good law after Manujendra Dutt v. P. P. Roy Chowdhury (1967) 1 A.W.R. 61 : (1967) 1 M.L.J.61 : (1967) 1 S.C.J. 503.
2. The respondent applied to the Controller under Section 10 (2) (1) of the Madras Buildings (Lease and Rent Control) Act, 1960 for en order of eviction. The Controller granted it on a finding that there had been ' wilful default' in payment of rent on the part of the petitioner and the appeal by the latter had failed. In the lower appellate Court a point was taken, for the first time for the petitioner, that for failure to serve notice under Section 111 (h) of the Transfer of Property Act, the application for eviction was liable to be dismissed. This objection was rejected on two grounds: (1) the point was not raised before the Controller and, it should, therefore, be assumed that the petitioner must have waived his right, and (2) that the Madras Act, being a self-contained code, providing for eviction under certain circumstances and the machinery thereof, there was no legal requirement of notice of termination as a condition precedent to an order for eviction. It is this point that survives in revision, in this Court, as the other factual finding of the lower appellate Court as to wilful default in payment of rent has become conclusive. Raval & Co. v. Ramachandran : (1966)2MLJ68 , decided by a Full Bench of this Court, does support the view of the lower appellate Court as to the non-necessity of termination of tenancy by notice before invoking the provisions of Madras Act XVIII of 1960 in ejectment on the ground of default in payment of rent.
3. Raval & Co. v. Ramachandren : (1966)2MLJ68 , was decided on 20th January, 1966. On 22nd September ,1966 came the decision in Maunjendra Dutt v. P. P. Roy Chowdhury (1967) 1 A.W.R. 61 : (1967) 1 M.L.J. (S.C.) 61 : (1967) 1 S.C.J. 503 in which R. Krishnamurthy v. Parthasarathy : (1949)1MLJ412 , which was one of the decisions relied on for the conclusion in Raval & Co. v. Ramachandran : (1966)2MLJ68 , was held to be not correct law. In view of this, the question is whether Raval & Co. v. Ramachandran : (1966)2MLJ68 , can nevertheless hold the field. In our view it can no longer. But, in passing we desire to state that we do not decide, in this case, whether termination by notice under Section 106 of the Transfer of Property Act of a tenancy is required before initiation of proceedings for fixation of fair rent under Madras Act XVIII of 1960. That matter, which is also covered by Raval &Co. v. Ramachandran : (1966)2MLJ68 , will have to be considered separately if and when it arises.
4. The Full Bench in Raval & Co. v. Ramachandran : (1966)2MLJ68 , was mainly concerned with proceedings arising out of an application for fixation of fair rent, but, the considerations as well as the conclusions arrived at, without doubt, stand on a wider perspective as to whether termination of a contractual tenancy by notice, under the general law, should precede as a condition for invoking the provisions of Madras Act XVIII of 1960. Though the Court formulated for its decision four questions, it is the third which is relevant for present purposes which is:
(3) Similarly, do they enable the landlords and tenants to work out their respective rights in the matter of the liability of the tenants for eviction on the grounds specified in the Acts, even during a contractual tenancy, and without that tenancy being first determined by the landlord in accordance with Section 111 (h) of the Transfer of Property Act?
5. In answering the question in the affirmative, the Court examined almost all the earlier decisions, both of this and other High Courts and of the Supreme Court, together with the provisions of Madras Act XVIII of 1960, and concluded:
On a careful perusal of these decisions of the Supreme Court, including Punjalal's case : 3SCR312 , we are unable to discover any ratio in these decisions, which were not rendered with reference to the intendment or structure of the Madras Act, which would necessarily imply that the Madras Act should be held applicable only to statutory tenancies and as not affecting contractual tenancies at all during their subsistence. On the contrary such a view is opposed (i) to the preamble and the intendment expressed therein, (ii) to the definitions of landlord and tenant in the Act, (Hi) to the self-sufficient code enacted in Section 10 including a special machinery for eviction, (iv) to the provisions of Section 7 which enacts specific inroads upon the rental agreements of contractual tenancies and (v) to the provisions of Section 4 as to the fixation of fair rent as available to all landlords and all tenants, as defined in the Act.
6. The learned Officiating Chief Justice, who spoke for the Full Bench, proceeded to say that thus the Madras Act had to be interpreted as a special Act which did abrogate the Transfer of Property Act, with reference to several of its provisions, and indeed, it went further and applied, in its terms, not merely to contractual tenancies during their subsistence, but also to statutory tenancies, after the determination of a contractual tenancy. The Full Bench was emphatic that under the terms of the Act, a landlord could evict a tenant on the special grounds available, notwithstanding the subsistence of a contractual tenancy, and even though it had not been determined. Punjalal's case : 3SCR312 , and more particularly Mangilal v. Sugan Chand : 5SCR239 , were specifically considered, but, it was pointed out that the particular perspective of interpretation that found favour in Mangilal v. Sugan Chand : 5SCR239 , was not available with regard to Madras Act XVIII of 1960 because of its quite different structure and provisions. A great deal of reliance by the Full Bench was placed on the Preamble to the Act as well as the definition of ' landlord ' and ' tenant' for its view that Section 10 applies to all landlords and tenants whether the tenancy be under subsisting contracts or after its determination. Also weighed with the Full Bench the consideration that the provisions relating to fixation of fair rent and the inhibition against landlords from claiming or receiving anything in excess of fair rent or agreed rent worked inroads into the terms and conditions of contractual tenancies. The view of the Full Bench more or less was the same as that taken earlier by a Division Bench of this Court in R. Krishnamurthy v. Parthasarathy : (1949)1MLJ412 . Raval & Co. v. Ramachandran : (1966)2MLJ68 should naturally be binding on this Court had net its authority been shaken by the ratio of Manujendra Dutt v. P.P. Roy Choudhury (1967) 1 A.W.R. 61 : (1967) 1 M.L.J.61 : (1967) 1 S.C.J. 503.
7. One of the questions, which is relevant here, and for decision by the Supreme Court in Manujendra Dutt v. P.P. Roy Chowdhry (1967) 1 A.W.R.61 : (1967) 1 M.L.J. 61 : (1967) 1 S.C.J. 503, was as to the right of a Thika tenant as defined in the Calcutta Thika Tenancy Act, 1949 to a notice provided under a lease deed. A registered lease deed of 4th December, 1934 provided for a fixed term of ten years with an option of renewal under certain circumstances. One of the clauses stipulated that the lessee was entitled to a six months' notice if the lessor desired him to vacate at the end of the fixed period of ten years, or after renewal, he desired him to vacate. The period of ten years having ended, but, there being no notice, as provided in the lease, and the lessese having continued in possession thereafter, the landlord treated the lessee as a trespasser and sued for possession. When the suit was pending, the Calcutta Thika Tenancy Act, 1949 was enacted with the result the suit stood transferred to the Thika Controller under the Act. Before the Controller disposed of the matter, West Bengal Legislature made a further amendment in 1953 the effect of which was to delete the then existing provisions conferring jurisdiction on the Thika Controller. An application for re-transfer was refused. At that stage, the plaint was allowed to be amended by including a prayer for a decree for ejectment on grounds that the tenant had failed to use or occupy himself a major portion of the land and that the land was required by the landlords for constructing a building (on) and developing it, and further that the lease had expired by efflux of time. These grounds brought the suit within some of the grounds in Section 3 of the Calcutta Thika Tenancy Act. An eviction order by the Controller followed, he being of the view that on the expiry of the term of lease, the tenant became a trespasser and was not entitled to a six months' notice as provided by the lease-deed, and that the landlords had made out the ground for eviction under the Act. The High Court of Calcutta shared that view and dismissed the tenant's appeal. The Supreme Court, however, took a different view on the necessity for the landlords to give six months' notice in order to succeed in the eviction proceeding. The reasoning for this view is ::
Rent Acts are not ordinarily intended to interfere with contractual leases and are Acts for the protection of tenants and are consequently restrictive and not enabling conferring no new rights of action but restricting the existing rights either under the contract or under the general law. It is well settled that statutory tenancy normally arises when a tenant under a lease holds over, that is he remains in possession after the expiry or determination of the contractual tenancy. A statutory tenancy therefore comes into existence where a contractual tenant retains possession after the contract had been determined. The right to hold over, that is the right of irremovability, thus is a right which comes into existence after the expiration of the lease and until the lease is terminated or expires by efflux of time the tenant need not seek protection under the Rent Act. For he is protected by his lease in breach of which he cannot be evicted.
8. The Supreme Court proceeded to refer to Abbashbhai v. Gulamnnabi : 5SCR157 , Mangilal v. Suganchand : 5SCR239 , Haji Mohamad v. Rebati Bhushan 53 C.W.N. 859, and Monmatha Nath v. Banarasi 63 C.W.N. 824 , in support of its view that the Rent Act did not give a right to the landlord to evict a contractual tenant without first determining the contractual tenancy. As to R. Krishnamurthy v. Parthasarathy : (1949)1MLJ412 , the Supreme Court dealt with it as follows:
The only decision which has taken a contrary view is R. Krishnamurthy v. Parthasarathy : (1949)1MLJ412 , where it was held that Section 7 of the Madras Buildings (Lease and Rent Control) Act XV of 1946 had its own scheme of procedure and therefore there was no question of an attempt to reconcile that Act with the Transfer of Property Act. On that view, that High Court held that an application for eviction could be made to the Rent Controller even before the contractual tenancy was terminated by a notice to quit. The decision is clearly contrary* to the decisions of this Court in Abbashbhai's case : 5SCR157 , and Mangilal's case : 5SCR239 , and therefore is not correct law.
9. Having said that, the Supreme Court summarised the position:
The Thika Tenancy Act does not confer any additional rights on a landlord but on the contrary imposes certain restriction on his right to evict a tenant under the general law or under the contract of lease. The Thika Act like other Rent Acts enacted in Various States imposes certain further restrictions on the right of the landlord to evict his tenant and lays down that the status of irremovability of a tenant cannot be got rid of except on specified grounds set out in Section 3. The right of the appellant therefore to have a notice as provided for by the proviso to Clause 7 of the lease was not in any manner affected by Section 3 of the Thika Act. The effect of the non-obstante clause was that even where a landlord has duly terminated the contractual tenancy or is otherwise entitled to evict his tenant he would still be entitled to a decree for eviction provided that his claim for possession falls under any one or more of the grounds in Section 3. Before therefore the respondents could be said to be entitled to a decree for eviction they had first to give six months' notice as required by the proviso to Clause 7 of the lease and such notice not having been admittedly given their suit for eviction could not succeed.
10. The view thus taken by the Supreme Court is in line with its earlier view in Abbashbhai v. Gulamnabi : 5SCR157 , and Mangilal v. Suganchand : 5SCR239 , both of which had been considered in Raval & Co. v. Ramachandran : (1966)2MLJ68 . But the point is that in Manujendra Dutt v. P.P. Roy Chowdhury (1967) 1 A.W.R.61 : (1967) 1 M.L.J. 61 : (1967) 1 S.C.J. 503, the Supreme Court was directly confronted with the contrary view in R. Krishnamurthy v. Parthasarathy : (1949)1MLJ412 , and unmistakably expressed the view that it was not correct law.
11. In deciding whether Manujendra Dutt v. P.P. Roy Chowdhry (1967) 1 A.W.R.61 : (1967) 1 M.L.J. 61 : (1967) 1 S.C.J. 503, has affected the validity of Raval & Co. v. Ramachandran : (1966)2MLJ68 , we have to see whether there is anything in the Preamble or structure of Madras Act XVIII of 1960 which is different from that in the Madras Buildings (Lease and Rent Control) Act, 1946 with which R. Krishnamurthy v. Parthasarathy : (1949)1MLJ412 , was concerned. A comparison of the two Madras enactments leaves us with the definite impression that there is, in substance and in fundamentals, no difference. The Preamble of the two Madras enactments and the definitions of ' landlord ' and ' tenant' as well as the provisions for determinations of fair rent and the inhibition against landlords claiming in excess of the fair rent fixed or the agreed rent, as also the provisions relating to eviction of tenants, which have all been relied on in Raval Co. v. Ramachandran : (1966)2MLJ68 , as justifying a different perspective of interpretation from the one in Mangilal v. Suganchand : 5SCR239 , and, the earlier cases of the Supreme Court on the subject, are, as we find, the same or similar in essentials. Section 7 of the 1946 Act, which related to eviction of tenants had been re-enacted by Section 10 in the 1960 Act. Except for verbal changes here and there, it doss not affect the material similarity. The scope, effect, set up and the nature of the proceedings as well as the ground for evictions are more or less the same, except for certain additional grounds for eviction. Section 10 (3) (d) in Madras Act XVIII of 1960 which has also been relied on by the Full Bench did find a place in the 1946 Act as well in the form of the first proviso to Section 7 (3) (a). The only additional provisions which are material for our present purposes in the 1960 Act, and which do not find a place in the 1946 Act, are Sections 14 to 16. These sections relating to recovery of possession by a landlord for repairs or for reconstruction, have not been attached any importance by the Full Bench as particularly contributing to the view that Section 10 of the 1960 Act, is a self-contained code, that the 1960 Act makes several inroads into the terms and conditions of contractual tenancies and that, therefore, Madras Act XVIII of 1960 should be considered as abrogating the requirements of Section 106 read with Section 111 (h) of the Transfer of Property Act.
12. When once the Supreme Court dissented from R. Krishnamurthy v. Parthasarathy : (1949)1MLJ412 , and held it was not correct law, it clearly follows, the view that found favour in Raval & Co. v. Ramachandran : (1966)2MLJ68 , cannot prevail any more, for, basically and in essentials, the provisions in both the Acts as to the object, structure, scheme, protection and grounds for eviction are almost identical.
13. We hold, therefore, that so long as the contractual tenancy is not terminated in the manner provided by Section 106 read with Section 111 (h) of the Transfer of Property Act the tenant is protected in his possession and the landlord cannot evict him, with the necessary corollary that there is no need for the tenant to seek protective refuge under the 1960 Act and that the landlord cannot, during the subsistence of the tenancy, resort to eviction on grounds provided by that Act irrespective of the protection available to the tenant under the subsisting contractual tenancy. It follows further that there is nothing in the 1960 Act which expressly or by necessary implication abrogates the general law relating to the necessity to terminate the contractual tenancy before proceedings in ejectment can be initiated. It is only after expiration of the contractual tenancy, either by efflux of time or by notice of termination, that the field becomes open for the landlord to get over the statutory protection to the tenant by resorting to and establishing the grounds provided by the 1960 Act for eviction. To that extent, Raval & Co. v. Ramachandran : (1966)2MLJ68 , is no longer good law. The view that we have expressed derives support from a recent judgment of the Punjab High Court in Bhaiya Ram v. Mahavir Parshad , That was under the East Punjab Urban Rent Restriction Act in which the landlord gave but a week's notice of ejectment to the tenant before applying for eviction under the Act. Though it was the common case that the Transfer of Property Act did not apply to the Punjab, nevertheless, the Court, composed of three Judges, on the view that the principles of the Transfer of Property Act did extend to the Punjab, held that the landlord without properly terminating the contractual tenancy could not resort to the grounds of eviction under the East Punjab Urban Rent Restriction Act. Punjalal's case : 3SCR312 , Mangilal v. Suganchand : 5SCR239 , and Manujendra Dutt v. P.P. Roy Chowdhry : 1SCR475 , were referred to in support for that conclusion. The Full Bench of the Punjab High Court also specifically dealt with the Full Bench decision of this Court in Raval & Co. v. Ramachandran : (1966)2MLJ68 , and considered that since R. Krishnamurthy v. Parthasarathy : (1949)1MLJ412 , had been categorically and specifically disapproved of by the Supreme Court in Manujendra Dutt's case : 1SCR475 , the decision of the Full Bench in Raval & Co. v. Ramachandran : (1966)2MLJ68 , could no longer be regarded as of any authority.
14. It is said that inasmuch as the objection as to want of notice had not been raised before the Controller the petitioner should be deemed to have waived his right, and that, in any case it should not be permitted to be raised at this stage. If the lower appellate Court had decided against the tenant on the ground that he had failed to take the point before the Controller, normally this Court would not interfere with that view. But, in this case, the point had been allowed to be taken by the lower appellate Court and specific reference to this question has been made at the stage of revision. Ramaprasada Rao, J., has placed the matter before us for a decision, particularly on the question of notice. In view of these circumstances we are inclined to think that the petitioner cannot be defeated on the ground that he had failed to take the point at the earlier stage before the Controller. No material has been placed either before the lower appellate Court or before us that any notice as required by Section 106 of the Transfer of Property Act, had been served on the tenant.
15. The result is the petitioner should succeed. The petition is allowed and the order of eviction is set aside. We make no order as to costs.