1. This is a reference in which three questions have been referred to us for answer. The relevant facts are all set out in the order of reference. It will be convenient to refer to it briefly. The suit was for eviction of the defendant, a monthly tenant, from one ground floor room within the premises 71A, Colootolla Street, Calcutta. A notice to quit dated 21st September. 1961 was given by the landlord through his lawyer, a copy of which is set out in the order of reference. It sets out two grounds, corresponding to clauses (a) and (f) of Section 13(1) of the West Bengal Premises Tenancy Act. 1956 (hereinafter referred to as the 'said Act'). There is no express statement therein to the effect that in default of making over possession a suit will be filed. As the referring Court was of the view that the proposition laid down in the decision of the Division Bench in Dulin Chand Dutta v. Renuka Banerjee, 68 Cal WN 296 that if a notice to quit would not, by itself, be a notice of suit, the mere mention of the ground of ejectment in a notice to quit, would not make it so, is too wide, a reference was made to a Full Bench for its decision on three points which have been 5et out in the Order of Reference and are as follows:
(1) In a consolidated notice under the Transfer of Property Act (sections 106 and 111) and Section 13(6) of the West Bengal Premises Tenancy Act. 1956 is it necessary to make a statement that a suit will be filed if the notice is not complied with?
(2) Where notice is given, setting out any of the grounds in Section 13 of the West Bengal Premises Tenancy Act. 1956 and particularly if it is written by a lawyer on behalf of the landlord, is it not a sufficient compliance with the provisions of Section 13(6), although there is no express statement that a suit will be filed in default of compliance with the notice ?
(3) Is the notice to quit in this case a legally valid notice?'
Under the Transfer of Property Act (4 of 1882) a contractual tenancy which is in the nature of a monthly tenancy, that is to say in the nature of a lease from month to month, could be terminated by the landlord by serving upon the tenant. 15 days' notice expiring with the end of a month of the tenancy, provided of course that there was no contract or local law or usage to the contrary. The only condition for terminating the tenancy was the service of such a notice. Owing to hardship caused by the dearth of accommodation, Bent Control Laws have been enacted all over the world, and have been more or less continuously imposed in Bengal since 1920. We are concerned in this case with the provisions of the said Act. Chapter III of the said Act deals with suits and proceedings for eviction. Section 13 gives protection to tenants against eviction. The relevant provisions in Section 13 are as follows:
'13. Protection of tenant against eviction (1) - Notwithstanding anything to the contrary in any other law, no order or decree for the recovery of possession of any premises shall be made by any Court in favour of the landlord against a tenant except on one or more of the following grounds namely: -
(a) where the tenant or any person residing in the premises let to the tenant without the previous consent in writing if the landlord transfers, assigns or sublets in whole or in part the premises held by him:
(f) where the premises are reasonably required by the landlord either for purposes of' building or rebuilding or for making thereto substantial additions or alterations or for Ms own occupation if he is the owner or for the occupation of any person for whose benefit the premises are held:
(6) Notwithstanding anything in any other law for the time being in force, no suit or proceeding for the recovery of possession of any premises on any of the grounds mentioned in sub-section (11 except the grounds mentioned in clauses (i) and (k) of that sub-section shall be filed by the landlord unless he has given to the tenant one month's notice expiring with a month of the tenancy.'
2. It will thus be seen that a tenant gets protection against the passing of in order or a decree for the recovery of possession of any premises in his occupation unless he falls within one or the other of the eleven grounds set out in sub-section (1) of Section 13. For our purposes, it is most important to bear in mind the fact that the immunity granted under Sub-section (1) is from an order or a decree for recovery of possession being passed against the tenant. This has been expressly stated in the provisions of the sub-section itself. In other words no tenant can possibly be mistaken as to two facts, firstly that if he does not come within any of these eleven exceptions mentioned in sub-section (1), he is completely protected from any order or decree being passed against him for recovery of possession of any premises in his occupation and secondly that if he does come within any of these exceptions the landlord is entitled to an order or a decree being obtained for the recovery of possession of the premises in his occupation; provided of course that there is nothing to prevent him from doing so by any other provision of law. There are two provisions of law to be considered in this connection. Assuming that the tenant comes within one or more of the eleven grounds which entitles the landlord to obtain an order or decree for recovery of possession there must be a termination of the tenancy under Section 106 of the Transfer of Property Act. The landlord is not entitled to an order or decree for possession before terminating the tenancy, which is contractual. A second condition is imposed by sub-section (6) of Section 13. It speaks of a notice to be given before a suit or proceeding is instituted, and the period of the notice is one month expiring with a month of the tenancy. It must be remembered that Section 106 of the Transfer of Property Act does not speak of the filing of any suit or legal proceeding. It merely lays down the procedure for terminatin' a contractual tenancy. Section 13(6) speaks about institution of a suit or proceeding for the recovery of possession, on any of the grounds mentioned in sub-section (1) except the grounds mentioned in clauses (i) and (k) of that sub-section. This is of the greatest importance because we must not lost sight of the fact that subsection (6) which introduces for the first time a 'notice of suit' itself provides that such a notice can be given only if one or more grounds mentioned in sub-section (1) except the prounds mentioned in clauses (i) and (k) exist and the existence of these ground? is a pre-condition for the filing of a suit or proceeding for the recovery of possession. A question thereupon arose as to what notice was contemplated under Section 13(6) of the said Act. Was it a notice to quit, or a notice of suit, or a combined notice to answer both the above purposes? This question amongst others was referred to a Special Bench in Suraya Properties Private Ltd. v. Bimalundu Nath Sarkar : AIR1964Cal1 . I set out below the Question and its answer:
'Question No. 2.
What notice is contemplated under Section 13(6) of the West Bengal Premises Tenancy Act, 1956 is it a notice to suit or a notice if suit or a combined notice to answer both the above purposes? Is i, a notice, required in addition to a notice under Section 106 of the Transfer of Property Act or a notice in lieu of it? What, if any are its necessary elements or contents? Is it necessary to mention in it the ground or grounds of ejectment under the aforesaid Act on which the suit is to be brought Or, in other words need it be a notice of such grounds?
A notice as contemplated under Section 13(6) isessentially notice of suit. Where it was necessary to serve a notice to quit under Section 106 of the Transfer of Property Act, it is still necessary to serve it. A notice under section 13(6) may be combined with a notice under Section 106 but the period of such combined notice shall not be less than a month expiring with a month of the tenancy. There is no prescribed form of such a notice. It is not necessary to mention in a notice under Section 13(6) the ground or grounds if ejectment for which a suit is to be instituted for recovery of possession. There is, however, nothing to prevent the landlord from setting out such ground in the notice. The notice, however, will not be a notice of such grounds.'
The answer is binding on us and indeed, it is binding of all division benches of this High Court until and unless set aside by the Supreme Court. It will be observed that the answer specifically lays down that there was no prescribed form for a notice under Section 13(6). It has, further been held that in a notice under Section 13 (6), the ground or grounds of ejectment for a suit instituted for recovery of possession need not be mentioned, It has also been held that there could be a combined notice under Section 106 of the Transfer of Property Act and Section 13(6) of the said Act. If, ' therefore, a notice under Section 13(6) is a notice of suit, the question arises as to what are the contents of a notice which will be considered a; a notice of suit Where, in such a notice, it is expressly mentioned that upon a non-compliance with it, a suit or proceeding will be instituted, there is no difficulty, because it is an express notice of the fact the a suit or proceeding is contemplated. Since, however there is no prescribed form for such a notice, no such express words are essential. In my opinion, the same principle should be applied at has been applied in respect of notice to quit given under Section 106 of the Transfer of Property Act Under that provision of law, the question arose as to what would be the form of a notice-to-quit. The object of a notice-to-quit is to terminate the contractual tenancy and the law lay down the period for which notice was to be given. Some Courts took the extreme view that there must be the utmost technical compliance with the provisions of S. 106. But the matter was set it rest by the Privy Council in Harihar Banerii v. Ramsashi Rov. 45 Ind App 222:(AIR 1918 PC 102). In that case, the plaintiffs alleged that they were the owners of certain lands in village Char Ram-krishtopur known as iama Nidhi Ram, which was in possession of the appellants is their tenants from year to year at in annual rent of Rs. 25 and that the tenancy had been determined by a notice to quit at the end of the Bengali year 1317 (April 11, 1911). They claimed possession. The defendants inter alia disputed the validity of the notice. What happened was that in the notice to quit, it war- Tientioned that the area of the land was 6 cottahs, and certain boundaries were given. It was admitted by the tenants that thev occupied an area of 2 highas 2 cottahs of land at a jama of Rs. 25 per year and it was urged that the notice was bad as it spoke of 6 cottahs and the boundary was disputed. Lord Atkinson delivering judgment said as follows:
'To tenants who, like the principal defendants, were admittedly in possession if the entire jama and paid that rent, that must have been clear to demonstration but it is contended that all this clearness is obscured by the statement in the schedule, that the lands the possession of which is to be delivered up are one plot of bastu lands 6 cottahs in extent .........
The principal defendants knew perfectly well that a plot of 6 cottahs in extent is only a fraction, one-sixth or one-seventh, of the lands in the entire jama; they must presumably have known the law that a notice requiring a tenant to quit only a portion of the holding of which he was tenant was bad and ineffective. But the presence of the words '6 fottahs' in the schedule it was, in effect, contended, necessitates that the landlord should be presumed to have intended to serve a notice bad and ineffectual to his own knowledge rather than a valid and effectual one. and that the notice itself should be construed ut res magis pereat quam valeat instead of the contrary. No argument has been addressed to their Lordships and no authority produced to sho v that the principles of the above recited English cases are inapplicable to Indian cases. From the very nature of a notice to auit, which is merely the formal expression of the landlord's will that the tenancy his tenant shall terminate, it would prima facie appear that they are applicable.........In their Lordships' view the erroneous statement of the contents of the jama does not predominate over the description given of 't in the earlier portion of the notice to quit. They have not the slightest doubt that the principal defendants were perfectly well aware that the notice required the defendants, as the plaintiffs desired and intended that it should, to quit and deliver up possession of the entire jama for which they for years paid the rent of Rs 25.........Their Lordships are, therefore, clearly of opinion that the notice was a good notice to quit the holding in its entirety, whatever its area might be '
Reference may also be made to a decision of R. C. Hitter, j. in Sudhansu Badini Debi v. Narayan Chandra, 48 Cal LJ 411. In that case, the learned Judge was deciding the validity of a notice to quit under the Transfer of Propertv Act. In the notice to quit, instead of saving that the tenant was to make over possession upon the expiry of the month of Agrehayan 1337, it called upon the tenant to vacate on the 1st of Pous l.?37. The suit had been dismissed on the ground that this was a bad notice to quit, not in conformity with the provisions of Section 106 of the Transfer of Property Act. In disagreeing with the verdict the learned Judge said as follows:
'In my judgment the lower appellate court has overlooked the principles formulated in the decision of the case, Ismail Khan Mahomed v. Jaigun Bibi, (1900) ILR 27 Cal 570 when Mr. Justice Banerjee and Mi. Justice Stevens following the observation of Lord Justice Lindley in the case of Sidebotham v. Holland (1894) 1 QB 378 said that the validity of a notice to quit, ought not to be determined on the splitting of a straw. In my judgment, therefore, the lower appellate court is wrong in holding that the notice in the present case is not a valid notice.'
3. Before us, it is not disputed that a notice under Section 13(6) would be valid of the notice can be said to be a notice of suit by express words or necessary intendment. In fact, a Paragraph from the judgment of Bachawat J. in the above-mentioned Special Bench case is cited before us which runs as follows:
'The notice under Section 13(6) is a notice of suit or proceeding. The notice sufficiently complies with the requirement of Section 13(6), if, by express words or necessary intendment, it conveys to the tenant conversant with the fact and circumstances of the case the information that the landlord intends to file a suit or proceeding for recovery of possession of the premises on any of the grounds mentioned in Section 13(1) except Section 13(1)(i) and (k) on the expiry of the period of the notice ^ notice which give.- this information is sufficient and it is not necessary that the notice should mention the particular ground or grounds on which the suit or proceeding will be instituted '
4. I shall now proceed to consider certain judgments of this Court explaining the provisions of the said Act. The first case cited before us is Subodh Chandra Sinha v. Santosh Kumai (1964) 68 Ca] WN 184 In that case, a notice dated November 24 1958 was served on the defendant tenant by the landlord plaintiff on November 25 1958 purporting to terminate the defendant's tenancy and asking him to quit and vacate the disputed premises on the expiry of the month December 1958. The exact wording of the notice had not been set out in the judgment, but it has been mentioned that the suit was on the ground of the plaintiff's reasonable requirement of the disputed premises for his own occupation and this ground was also stated in the notice. It was held that it was not a valid ground under Section 13(6) of the said Act. There is no mention in the said decision that the notice was served by a lawver on the contrary it seems to have been served by the landlord himself. The next case to be considered is (1965) 68 Cal WN 296. In that case also, the notice set out the ground that the plaintiff had purchased the suit property occupied by the tenant for her own occupation and accordingly she required possession of the demised premises reasonably for her own occupation. It was held that the mere mention of such a ground in the notice does not make it a valid notice of suit, although the position may well be different if Section 13(6) is referred to in the notice, as that section has ''obvious reference' to a proposed suit and may, in appropriate cases, well imply the landlord's intention to file the proposed suit. Mookerjee, J. said as follows:
'We would accordingly, hold that the mere mention of the ground of ejectment, although that ground is a ground relevant for purposes of Section 13(6), would not make a mere notice to quit a notice of suit under the aforesaid section. In the above view, we must hold that the instant suit must fail for want of a proper notice under the above section, however much that is, even assuming that - it might have otherwise succeeded on the merits.'
The next case cited as Iswar Singh Kripal Singh and Co. v. Kiron Chandra Roy, (1969) 69 Cal WN 232. In that case, the notice ended with words intimating to the tenant that if after the expiry of its period, he continues to occupy the suit premises he will do so as a trespasser liable to pay damages or mesne profits, 'till evicted in due course of law'. It was held that the words 'till evicted in due course of law' carried with it the necessary implication if the landlord' - intention to file an ejectment suit in case of non-comoliance on the tenant's part with the said notice. In the context of the ground of 'reasonable require-ment'. which was specifically stated in the notice, it was held that the words ''till you are evicted in due course of law' could have no other meaning than that the landlord intended t file a suit for ejectment on the said ground It was held that the notice contained within it at least by necessary implication, sufficient indication of the landlord's intention to file a suit for ejectment as contemplated under Section 13 (6) of the said Act
4A. The position may be summarised as follows: Under the Transfer of Property Art all that is required is a notice under Section 106 terminating the contractnit tenancy of the tenant In the case of a tenancy from month to month, it must be a 15 days notice endine with the last day of the month of tenancy No other ground is required for evicting a tenant As this operated harshly ^eainst the tenant? who are owine to a general shortage of accommodation, unable to make alternative arrangement for their residence protection is given by the Rent Control Arts At present, we have West Bengal Premises Tenancy Act, 1958 holding the field Under Section 13 (1) of the said Act protection is sriven to tenants from eviction but in a particular manner. It does not stop the tenancy being terminated, but states that no order or decree for recovery of possession shall be passed, unless there was in existence one or the other of eleven grounds mentioned in sub-section (1) of Section 13. In other words, if any of these grounds existed it was sufficient for the landlord, after terminating the tenancy of the tenant under the Transfer of Property Act to take proceedings culminating in an order or decree for recovery of possession of the demised premises Before he can successfully do so, there is another restriction imposed by sub-section (6) of Section 13-Under sub-section (6), apart from a notice to quit served under Section 106 of the Transfer of Property Act, the landlord has to serve a notice of suit unless the recovery of possession is asked for under clauses (i) and (k) of sub-section (1) of Section 13. Clause (i) is where the tenant himself has given notice to quit and clause (k) is where, subsequent to - the creation of the tenancy, the tenant agru in writing to give vacant possession but fails to do so. Sub-section (6) of Section 13 has now been construed by a Special Bench of this Court in : AIR1964Cal1 (SB) (supra) t has laid down the following propositions:
(1) A notice as contemplated under Section 13(6) is essentially a notice of suit
(2) Is is a notice distinct from the notice to quit under Section 106 of the Transfer of Propertv Act.
(3) Both the notices must be served be-fore the landlord can be permitted to evict the tenant, but the two may be combined and the period of such a combined notice shall not be less than a month pxpirino with the month of the tenancy
(4) There is no nrescribed form of such a nofice
(5) It is not necessary to mention in a notice under Section 13(6), the ground or grounds of eiectment but the landlord may set out such arounds although the notice will not be treated as a notice of such grounds in other words, in the course if the proceedings he may rely on other grounds which are ripen to him.
5. The decided cases including the Special Bench case mentioned above, make it abundantly clear that the notice under Section 13(6) is a 'notice of suit' but it is not necessary to mention expressly in the notice that a suit will be brought if possession is not given. As lone as a tenant, familial with the facts of the case, can reasonably infer from the notice that such a suit or proceeding will be commenced ,'f possession is not given that is enough in other words the notice must be a notice of suit by express words or necessary intendment. Where it is expressly mentioned that a suit will be brought if possession is not given, there is nothing further to say. But what are the circumstances under which there will be a necessary intendment? Obviously, there are a number of circumstances which may give rise to the inference that a suit will be brought. Some of then have been referred to in the decisions mentioned above. It has been held that the mention of Section 13(6) is sufficient. It has further been held that the use of the words 'till evicted in due course of law' is also quite sufficient. Thus, an immediate threat need not be contained in the letter. The expression of an intention that proceedings will be taken in future is quite enough. We must also carefully keep in mind the principle that such notices should not be interpreted by the splitting of straws, but we should consider as to what a person, quite familial with the circumstances, will infer from the words used and the surrounding circumstances Let us now come to the facts of the present case. Section 13 of the said Act mentions certain grounds which enable a landlord to obtain an order or decree for recovery of possession. If the landlord, as in the present case, goes to his lawyer and the lawyer says to the tenant that you must give possession on two grounds which are no more than clauses (a) and (f) of Sub-section (1) of Section 13, then would it be reasonable to infer that a tenant receiving such a notice would think that if he does- not comply with it a suit or proceeding will be brought to obtain a decree for possession? In my opinion, the inference is irresistible. As we have seen above, there are only two notices which art- relevant 'n such a case. One is under Section 106. for which no grounds are necessary, and the period for which is 15 days expiring with the end of the month of the tenancy The other notice is a notice under Section 13 (6). Under this provision itself, notice cannot be given except under the ground? mentioned in sub-section (1) of Section 13. except clauses (i) anrt (k). The period for which notice is to be given is one month and not 15 davs expirinp with the month of the tenancy. As has been held in the Special Bench case cited above the two notices may be combined, and in a combined notice the grounds may be set out and the period of such a combined notice is one month expiring with the month of the tenancy Now let us see whether on the facts of this case it could ever be doubted by the tenant that the notice given was a combined notice under Section 106 of the Transfer of Property Act and Section 13(6) of the said Act. Firstly, the two grounds given, have nothing to do with a notice under Section 106, but are two grounds upon which a notice under Section 13(6) can be given. In other words, these grounds are only referable to a notice under Section 13(6) Secondly, the period for which notice is given is not 15 davs. but a complete month expiring with the month if the tenancy. It is said that a notice given under Section 106 would also have to expire on the next month of tenancy, but it might have been given much later. Thirdly, the fact that the letter was given by a lawyer and the tenant was being asked to vacate on two grounds which entitled the landlord to institute legal proceedings, ending in an order or decree for possession, would convey to a man of ordinary intelligence that a failure to comply would mean that such proceedings will be taken to obtain such an order or decree. Fourthly, it must be remembered that such a notice is not to be construed in a technical manner, but one should consider as to what message it was intended to convey and would convey, to a person familiar with the facts of the case. It is well known that under the Rent Control laws it has become extremely difficult and certainly unusual for the landlord to obtain recovery of possession except by legal proceedings Thus, if the notice in question was not a notice of suit, what was it? Was it a mere step in negotiation with the tenant, or a mere attempt to persuade him to give up possession? To my mind, these are not justifiable inferences. The law at present is that in cases governed by the said Act, even if the tenancy is contractual, and the tenant is liable to deliver up possession under the terms of the contract and/or on a valid notice served under Section 106 of the Transfer of Property Act the landlord cannot recover possession in terms of the contract or by reason of the notice under Section 106 of the Transfer of Property Act, except when certain grounds exist which are enumerated in Section 13(1) of the said Act. If such grounds existed, the landlord Is entitled to commence proceedings in a court of law and get a decree for possession against the tenant. Where the landlord in effect says to the tenant through his lawyer that - 'look here, I am asking you to give up possession and informing you that two grounds exist whereby, in case you do not give possession, I can bring proceedings culminating in a decree for possession.' - It is but reasonable to infer that it conveys to the tenant the information that if he did not give up possession such proceedings would be brought and the landlord would proceed to obtain a decree for possession, whereby he could evict the tenant in due course of law.
6. Apart from this, there exists in this particular case another ground, namely that previous to the present action the landlord brought another case against the tenant which failed on the ground that the notice to quit given was bad. Thereafter, when another notice is given, it would be an ordinary inference for the tenant to draw that if he failed to comply with it, another suit will be instituted.
7. In my opinion, if P. N. Mookerjee J. intended to lay down in (1964) 68 Cal WN 184 or in (1964) 68 Cal WN 296 or in (1965) 69 Cal WN 232 that even where grounds for enabling an order or decree for recovery of possession under Section 13(1) are set out in a notice, it will not amount to a notice of suit, unless (i) the word 'suit' or 'proceeding' is mentioned, or (ii) Section 13(6) is expressly referred to or (iii) the notice intimates to the tenant that if after expiry of the period of the notice the tenant continues to occupy the suit premises, he will do so as trespasser, and be liable to pay damages or mesne profits till evicted in due course of law, then we must hold that in so far as these cases lay down those propositions they have not been correctly decided.
8. In (1964) 68 Cal WN 296 it has been said:
'A mere notice to quit will not be enough '
9. We respectfully agree that this is a correct statement of the law. Mookerjee J. appears to have taken the view in the cases cited above that a notice may be a valid notice under Section 13(6) even if there is no mentim of the word 'suit' or 'proceeding so long as it carries with it the necessary implication of the landlord's intention to file an ejectment suit in case of non-compliance on the tenant's part with the notice. That is a view with which again, we agree. But, when a combined notice is given, the disagreement is upon the question as to what will be sufficient to convey to the tenant, the information that it is also a notice of suit under Section 13(6). In my opinion, the facts should be such as will make a tenant, who is acquainted with all the facts of the case, come to the reasonable inference that if he does not comply with notice, a suit will be instituted. No technicality should be introduced here. Since everybody seem? to be agreed that there need not be an express mention of the fact that a suit will be brought, all we have got to see is as to whether the information is conveyed to the tenant that if he does not comply with the notice, the landlord will institute legal proceedings. In my opinion, where the landlord conveys the information to the tenant through his lawyer that his contractual tenancy is determined, that he should give up possession, and that he has no protection under the Rent Control Act because the landlord has got grounds for obtaining a decree for possession, it would be a reasonable inference for him to draw that if there is non-compliance, the landlord will proceed to take proceedings to obtain an order or decree for possession. Any other interpreation would be highly technical and constitute a splitting of straws.
10. That being so, I will proceed to answer the question asked In the following manner:
1. In a consolidated notice under the Transfer of Property Act (Sections 106 and 111) and Section 13(6) of the West Bengal Premises. Tenancy Act, 1956 is it necessary to make a statement that a suit will be filed if the notice is not complied with?
2. Where a notice is given setting out any of the grounds in section 13 of the West Bengal Premises Tenancy Act, 1956 and particularly if it is written by a lawyer on behalf of the landlord, is it not a sufficient compliance with the provisions of Section 13(6), although there is no express statement that a suit will be filed in defaut of compliance with the notice?
3. Is the notice to quit in this case a legally valid notice?
The answers will now be remitted to the referring court.
11. The learned Advocate-General appeared as amicus curiae at the hearing and urged that the notice in the present case is a valid notice under Section 13(6) of the Ac-1 by necessary implication. We express
It is not necessary to make an express statement, but it is sufficient if it can reasonably be inferred that it was intended to convey the information to a tenant acquainted with the facts of the case, that if the notice is not complied with, a suit will be filed.
Yes, if the grounds set out are grounds which entitle the landlord to obtain a decree or order for recovery of possession; that is to say the grounds specified in Sub-section (1) of Section 13 except clauses (j) and (k).
our appreciation of the assistance rendered by the learned Advocate General and Mr. Shankar Ghose in decidino the case.
Arun K. Mukherjea, J.
12. I agree
S.K. Mukherjea, J.
13. I agree.