S.R. Das Gupta, J.
1. This is an appeal from a decision of the Judges, Special Bench of the Court of Small Causes, Calcutta, dated 10-7-1953, reversing the decision of the Sixth Judge of the Court of Small Causes, Cal in Suit No. 2625 of 1951 D/- 20-12-1952. The plaintiffs in the said suit are the appellants before us.
2. The matter arises in this way: The plaintiffs had instituted the said suit for ejectment of the defendant from premises No. 5, Raja Raj Kissen Street, Calcutta. Originally there was a lease for ten years granted by the plaintiffs in favour of the defendant in respect of the said premises. The said lease expired in June, 1947. Before that date the Rent Ordinance had on 1-10-1946 come into existence. It was continued by subsequent Act being Bengal Act I of 1947 and thereafter it was continued by another Act being West Bengal Act V of 1948.
On 1-12-1948, the Act of 1950 was passed. This suit was filed on 8-12-1951, on the ground that the plaintiffs required the premises for their own purposes. Prior to the institution of the suit a notice to quit was served on the defendant expiring by the end of Chaitra, 1357 B.S. That notice was given on the 23rd Aswin 1357 B.S.
The lower Court dismissed the suit on the ground that the notice was insufficient. It, however, found that the plaintiffs required the premises for their own use. The reason for holding that the notice was insufficient by the said Court was that after the expiration of the lease the defendant held the premises as a yearly tenant, the tenancy commencing from the 1st of Ashar and ending with the end of Jaistha each year and, therefore, the notice to quit in the present case having expired with the end of Chaitra 1357 B.S. was held by the said Court to be invalid. The said Court held that the notice ought to have expired with the end of Jaistha, 1357. On this ground both the Courts dismissed the plaintiffs' suit. The present appeal has been preferred against the said decision of the lower appellate Court.
3. Mr. Gupta appearing on behalf of the appellants contended before us in the first place that a notice to quit in this case was wholly unnecessary and the defendant is liable to be ejected even if no notice had been given. In the premises, Mr. Gupta contended, the notice should have been Ignored and a decree for ejectment should have been passed against the defendant.
Mr. Gupta's argument was that the tenancy had expired with the afflux of time in June 1947 and the tenant no doubt remained in possession but that was not because of any agreement between the parties but because of the force of the statute, that is the Rent Ordinance and the subsequent Acts. The statute according to Mr. Gupta allowed the tenant to remain in possession on certain conditions and if at any time any one of those conditions which prevented ejectment ceased to be operative, then the tenant would be liable to be ejected.
The net result of Mr. Gupta's contention is that there was no tenancy created between the parties by virtue of any contract but the tenant was entitled to remain in possession of the premises by virtue of statute and on the conditions laid down therein. One of such conditions was that, he would pay rent allowable by this Act and the Rent Act made provisions under which the 'rent allowable by this Act' could be fixed.
Applications were made in the case both by the landlord and tenant for fixation of such rent; but those applications were made by virtue of the provisions of the Act and not because of any contract between the Parties. Mr. Gupta further argued that rent was no doubt received in this case by the landlords after the expiry of the tenancy in June 1947, but mere receipt of rent would not alter the legal position of the parties and a tenancy would not be created) because of receipt of such rent by the landlord.
According to him the tenant is entitled to remain in possession by paying the rent allowable by the Act and the landlords in such circumstances have no other alternative but to accept the-rent. In support of his said contention Mr. Gupta relied on the case of 'Haralal Das v. Pashupatl Charan Biswas', (S) : AIR1955Cal226 and on the observations of Mukherjea, J., as he then was, made in the case of 'Kai Khushroo Bezonjee Capadia v. Bai Jerbai Hirjibhoy Warden' . The said two decisions were based upon two English cases being 'Morrlson v. Jacobs' 1945-1 KB 577 (C) and 'Davies v. Bristow' Penrhos College, Ltd. v. Butler' 1920-3 KB 428 (D).
Mr. Gupta contended on the authority of those decisions that acceptance of rent in such circumstances does not create a tenancy and does not-entitle the tenant to have a notice to quit before he can be ejected. Mr. Gupta further contended that any proceedings which the landlord might have taken for the purpose of fixing the rent under the Rent Act would not also debar him from obtaining a decree for ejectment if any one of the conditions, which prevented such ejectment under the Rent Act, had ceased to be operative,
4. Mr. Meyer appearing on behalf of the respondent did not dispute the proposition that mere acceptance of rent would not be sufficient to create a tenancy between the parties entitling the tenant to have a notice to quit before he could be ejected. Mr. Meyer's contention was that Section 116, T. P. Act was applicable to this case and if Section 116 applied then there was a tenancy between the parties and it would be a tenancy from year to year, as admittedly the purpose for which such tenancy was originally taken was a manufacturing purpose.
In that event Mr. Meyer contended, the notice to be served must expire with the year of the tenancy which would be the end of Jaistha of each year. As for the decisions cited by Mr. Gupta Mr. Meyer contended before us that what was held in those cases and particularly in the case in '1945-1 KB 577' (C) was that 'mere' acceptance of rent would not be enough to create a tenancy. But Mr. Meyer contended that there may be other circumstances from which a contract of tenancy may be implied.
In this case Mr. Meyer's contention was that apart from the fact of acceptance of rent by the landlords, there were other circumstances which go to show that a tenancy was created between the parties. I should mention that Mr. Meyer stated before us that it was not his client's case that there was an express agreement between the parties but his case was one of implied agreementor in other words, that there were circumstances in this case from which a tenancy could be and should be implied.
The circumstances on which Mr. Meyer relied for his present contention are as follows:-
(a) assenting to the tenant's continuing in possession, (b) accepting rent, (c) giving notice to quit and the contents of the said notice, (d) the averments made in the plaint filed in this suit.
As for acceptance of rent it has been held, as I have already indicated, in a number of decisions including a decision of a Division Bench of this Court that in a case where the tenant remains in possession by virtue of the statute acceptance of rent would not be sufficient to create a tenancy between the parties. As for the landlord's assenting to the tenant's continuance I do not see why on principle there should be any difference between the two positions, namely, where the landlord accepts rent & where the landlord assents to the tenant continuing in possession. If in the first case no tenancy could be implied, I do not see why a tenancy would be implied in the second.
In my view in a case where the tenant is permitted by a statute to continue in possession thelandlord has no alternative but to accept rent and also to allow the tenant to continue in possession. The law permits the tenant to continue in possession on payment of rent allowable under the Act and the landlord has no say in this matter. If then the landlord accepts the rent and/or allows the tenant to continue in possession, it cannot be said that a tenancy has been created between the parties so that the tenant would be entitled to a notice to quit before he could be ejected.
In my opinion Section 116, T.P. Act. has no application to a case where the landlord was no alternative but to allow the tenant to remain in possession and to accept the rent payable by the tenant. Section 116. T.P. Act would be applicable to a case where the landlord has the option either to allow or not to allow the tenant to remain in possession and/or either to accept or not to accept the rent payable by the tenant. Where the landlord has no such choice, there is no scope for application of Section 116, T. P.Act.
The view which I am taking in this matter is supported by the observation of Mackinnon L.J. in the said case of 1945-1 KB 577 (C). His Lordship observed as follows:
'At common law, if at the expiration of a tenancy a landlord has acquired a right to claim possession against his tenant and instead of exercising that right he allows him to remain in the house and accepts rent from his as before, the parties by their conduct may, with reason, be held to have entered into a new contract of demise. But the essential factor in those circumstances is that the landlord voluntarily abstains from turning the tenant out.
When the tenant remains in possession, not by reason of any such abstention of the landlord, but because the Rent and Mortgage Interest Restriction Acts deprive the landlord of his former power of eviction, no such inference can properly be drawn'.
In my opinion, therefore, the fact that the landlord assented to the tenant's continuing in possession and accepted rent from him did not make any difference in the position of the partiesand did not create a tenancy between them.
5. I ought to mention that the only evidence adduced in this case to show that the landlord assented to the tenant's continuing in possession was the fact that the tenant continued in possession. There is practically no other evidence. Mr. Meyer, for the purpose of showing that the landlord assented to the tenant continuing in possession relied upon the fact that the landlord had given notice of ejectment to the tenant. I am unable to accept Mr. Meyer's contention.
The notice to quit, which the learned Advocate for the appellants contends before us was wholly unnecessary and could be ignored, might have been given for greater safety or in ignorance of the position in law, namely, that no notice was necessary. I cannot hold merely from the fact that a notice had been given that there was evidence of the fact that the landlord assented to the tenant's continuing in possession.
Mr. Meyer also relied upon the fact that in the said notice it was stated that the defendant was holding as a monthly tenant and the plaintiffs were his landlords. It should be noted that under the Rent Act a person occupying the premises even after the expiry of the period of the tenancy is a 'tenant': (Section 2(11) of the Rent Act of 1948).
That being so, no special importance should be attached to the use of the word 'tenant'. It he is still a tenant under the Rent Act of 1948, the plaintiffs' pleader giving notice would be justified in using the term 'tenant' and it must not be held that he used the word 'tenant' in the sense in which Mr. Meyer wants us to understand it.
I have, therefore, come to the conclusion that there is little or no evidence of the fact that the landlord assented to the tenant's continuing in possession. Before leaving this point I should mention that Mr. Meyer relied upon the averments made in paras 3 and 4 of the plaint where the plaintiffs have described the defendant as a 'tenant'.
The same observations which I have made with regard to the use of the word 'tenant' in the notice to quit are, in my opinion, applicable to the said statement made in the plaint. It should be noted that the plaintiffs have nowhere said that after the expiry of the period of the lease plaintiffs absented to the said defendant's continuing in possession. All the contentions of Mr. Meyer therefore fail.
6. In the result the appeal is allowed. The judgment and decree of the lower appellate Court are set aside and those of the trial Court are restored and affirmed.
7. The appellants are entitled to their costs of this appeal.
8. No order is necessary on the application under Section 115, Civil P. C.
9. Mr. Meyer appearing on behalf of the respondent prayed for some time to vacate the premises. Three months' time from this date is granted to the respondent to vacate the premises and the decree is not to be executed for three months from date.
10. I agree.