1. This appeal by the tenant defendant arises out of a suit for ejectment and recovery of mesne profits instituted lay the plaintiff-respondent. The facts are briefly as follows:
2. The defendant was a tenant under the plaintiff in respect of one flat on the ground floor of premises No. 11, Lower Range, Park Circus, Calcutta, the flat being known as Suite No. 3 and 3A. On August 15, 1950, the defendant sent a notice, Ex. 2, to the landlord to quit which was to expire on. 31-8-1950. The notice was in these terms:
'Dear Mr. All,
As I am vacating your premises, suite 3, No. 11 Lower Range, on the 31st instant, please accept.15 days' notice. Thanking you, etc.'
3. On the next day, that is, 16-8-1950, the plaintiff landlord communicated his acceptance of the notice.
4. On 29-8-1950, the defendant sent a letter, Ex. A, of withdrawal of the notice (Ex. 2). This however, was not accepted by the landlord and was returned to the defendant who sent it again under registered post. The registered cover again was refused by the plaintiff. The defendant did. not keep her promise to vacate the premises on 31-8-1950, and 'continued in possession. She had paid rent upto August 1950 and the present suit was filed by the landlord on 22-9-1950.
5. The defence inter alia was that though the defendant had sent the notice, Ex. 2, dated 15-8-1950, that notice was waived before the expiry of the period stated in the notice itself and in these circumstances the tenancy in question had not been determined and she was not liable to be evicted.
6. The defence was overruled by both the Courts below and the suit was decreed in favour of the landlord. It has been held by the lower appellate Court that after the tenant had surrendered the premises by her notice dated 15-8-1950, she was occupying the premises as a trespasser and not as a tenant and as such the landlord was automatically entitled to get khas possession of the disputed, premises as a proprietor.
7. On behalf of the defendant appellant Mr. Mullick contends that even if the tenancy be held, to have expired by reason of the notice given by the tenant, the tenancy is protected under Section 12 (1) of the West Bengal Premises Rent Control (Temporary Provisions) Act, 1950, (herein, after described briefly as the 1950 Act). In this connection Mr. Mullick has drawn our attention to the phrase 'including a tenant whose lease has expired' which occurs in that sub-section. In support of his contention he has relied upon the decisions in the cases of -- 'Karnani Industrial Bank Ltd. v. Satya Niranjan', AIR 1928 P C 227 (A) and -- Sm. Nandarani Dassi v. Satya Narain Harit', AIR 1951 Gal 215 (B). He has contended thai the defendant even after the expiry of her tenancy must be deemed to be a tenant who is entitled to the protection of Section 12 of the 1950 Act. It is to be noted, however, that since the decision in the case of -- 'Sm. Nandarani Dassi v. Satya Narain Harit', (B) the 1950 Act has been amended by West Bengal Act 62 of 1950. By Section 2 of the amending Act the definition of the word 'tenant' as occurring in Section 2(11) of the 1950 Act was amended with retrospective effect. As the definition stands now, the defendant in the present case does not come within the category of any of the persons who can be said to be a tenant within the terms of the definition. She is not a person who is liable to be sued by the landlord for rent, in the ordinary sense of the word; nor is she a person whose interest in the premises has been ipso facto determined under Section 12(3) of the Rent Control Act of 1948; nor is she, after her offer to give up her tenancy and the acceptance of that offer by the landlord, a person by whom rent, in the ordinary sense of the word, is payable for the premises. She is no doubt 'a person continuing in possession after the termination of a tenancy in her favour' who, according to the relevant definition, under Section 2(11) of the 1948 Act, would be a tenant: she is, however, no longer so by reason of the different phraseology used in the present definition of the term. The tenant has determined the lease by a notice to quit Ex. 2, sent on 15-8-1950, and the landlord has accepted her offer, (Vide Ex. 1) and did not consent either expressly or impliedly to her continuance of the tenancy as found by both the Courts below. It is, therefore, not open to the tenant defendant to claim the tenancy any more. The continuity of the tenancy has been broken irrevocably by her own action. No subsequent unilateral action by her can repair the breach. Her conduct in persuading the landlord to accept the surrender of the tenancy leads to the reasonable inference that at the material time she was in no need of protection against eviction. She changed her mind subsequently no doubt, but then it was too late. Her case is, therefore, quite different from that of other tenants who are sought to be evicted against their own wishes. She can, get no relief, therefore, under Section 12 of the 1950 Act which was enacted obviously for the protection of other class of tenants from eviction. It follows from this that the benefit of the phrase 'notwithstanding anything to the contrary in any other Act or law' in Section 12(1) of the 1950 Act which was relied upon by Mr. Mullick to nullify the effect of the notice, Ex. 2, given by his client is not available to her. The phrase 'including a tenant whose lease has expired' occurring in Section 12(1) of the 1950 Act is of no assistance to her as she is not a tenant as denned in the amended Section 2(11). After the expiry of the period of the notice (Ex. 2) that is, since 1-9-1950, she is a trespasser pure and simple and the landlord is entitled to evict her as such, as he has sought to do by the present suit. In our opinion, there is nothing in the 1950 Act as amended which stands in his way.
8. Mr. Mullick also drew our attention, to the decision in the case of -- 'Brown v. Draper', (1944) 1 All E R 246 (C), and relied upon certain passages in that decision in support of his contention that the tenant appellant in the present case was entitled to protection under Section 12 of the 1950 Act.
Among other passages, Mr. Mullick relied particularly upon the following passage:
'A tenant remaining in possession cannot lawfully contract not to avail himself of the protection which the Acts give him if and when the landlord takes proceedings against him to recover possession. If he wishes to place himself outside the protection of the Acts without putting the landlord to the necessity of taking proceedings his proper course is to deliver up possession. Unless and until he does so, he is under the shelter of the Acts, whether or not he so desires. No contract, and a fortiori no mere statement of his wishes or intentions can deprive him of the statutory protection.'
9. On the strength of the principle laid down in. the above passage, Mr. Mullick has contended that even though in the instant case the tenant had sent a notice to the landlord communicating her desire to vacate the premises with effect from 31-8-1950, as she had continued in possession after that date, she was entitled to the protection of the 1950 Act. As regards this English case, it will suffice to say for our present purpose that that case was decided on the basis of the provisions of certain English statutes which differ in material particulars from the corresponding West Bengal Statutes. For one thing, in our statute there is no provision, as pointed out by Mr. Roy, on behalf of the respondents, corresponding to the provision in Clause (c) of the First Schedule to the Rent and Mortgage Interests Restrictions Amendment Act, 1933. In view of that provision in, the English statute, it was possible for the Court to hold in the case of -- 'Brown v. Draper', (C) that the possibility of a tenant changing his mind where he himself has brought the contractual tenancy to an end by a notice in being entitled nevertheless to claim protection is envisaged by Schedule I Para, (c) to the Act of 1933. Then again so far as the definition of the term 'tenant' is concerned, it would appear that there is wide divergence between the definition of that term in the relevant English statute in Clause (g) of Sub-section (1) of Section 12 of Increase of Rent and Mortgage Interests Restrictions Act, 1920, and the definition as contained in Section 2(11) of West Bengal Premises Rent Control (Temporary Provisions) Amendment Act, 1950, (West Bengal Act 62 of 1950). As observed before, the present appellant is not, in our view, a tenant within the meaning of Section 2(11) of the Amended Act.
10. Thirdly, it may be observed that in the present case the tenant determined her tenancy by a notice, Ext. 2, whereas in the case of Brown v. Draper', (C) there was no such notice given by the tenant. In view of all the circumstances, it does not appear to us that it will be proper to decide the present case on an application of the principle laid down in the case of -- 'Brown v. Draper', (C).
11. There is another minor point which may be dealt with briefly. The appellant occupied a flat known as Suite Nos. 3 and 3-A, but in her notice Ex. 2, she mentioned Suite No. 3 only. The question is whether the notice was bad on that ground. As pointed out by the trial Court, however, the receipt, Ex. 1, and the correspondence between the parties read along with Ex. 2 itself make it quite clear that both the parties understood that the defendant was vacating the entire premises which she was occupying. There might be slight misdescription in the notice, Ex. 2, but that could not possibly mislead either party. The notice was, therefore, sufficient and legal.
12. We hold accordingly that the suit has been rightly decreed by the Courts below. The appeal is dismissed accordingly.
13. In the circumstances, the parties are left to share their own costs of the appeal.
14. The appellant is allowed three months' time from date to vacate the premise`
15. I agree.