1. We are invited in this Rule to modify the decree in a suit for enhancement of rent. The case for the petitioner, who was the plaintiff in the Court below, is that he let out three shops and two almirahs to the defendant on an oral lease from month to month. The rent settled was Rs. 10-8 for the shops and Rs. 8 for the almirahs. On the 4th September 1910, the plaintiff served a notice upon the defendant in the following terms: 'Whereas two almirahs and three shops are in your tenancy and the rent for the same has been paid up to Bhadro 1317, and as in respect of this, some persons offer Rs. 27 a month, you are, therefore, informed by this notice that if from the 1st Aswin 1318 you want to keep the shops and the almirahs in lease, you shall have to pay Rs. 27 a mouth.' The defendant continued in occupation but refused to pay rent at the enhanced rate. Subsequently, on the 2nd December 1910, the plaintiff served a notice upon the defendant calling upon him to pay rent at the enhanced rate for three months and at the same time requiring him to quit on the 16th December 1910. On the 14th November 1911, the plaintiff commenced the present action and claimed rent at the higher rate. The Small Cause Court Judge has made a decree in favour of the plaintiff for rent at the original rent and has deducted therefrom a certain sum alleged to have been spent by the defendant in effecting necessary repairs on the property. Two questions, therefore, require consideration; namely, first, whether the rent was validly enhanced; and secondly, whether the defendant is entitled to claim any deduction on account of the costs of repairs.
2. In so far as the first ground is concerned, it is reasonably plain that the first notice was not sufficient either to terminate the tenancy or to enhance the rent. The case falls within the principle of the decision of a Full Bench of the Allahabad High Court in the case of Bradley v. Atkinson 7 A. 899. In that case, the landlord served a notice upon the tenant in the following terms: 'If the rooms you occupy in the house are not vacated within a month from this date, I will file a suit against you for ejectment, as well as for recovery of rent due at the enhanced rate.' It was held that the letter was not such a notice to quit as the law requires, inasmuch as it was not a notice of the intention of the lessor to terminate the contract at the end of a month of the tenancy. Mr. Justice Straight further doubted whether the letter was a notice to quit at all. We are not unmindful that in England it has been held that if a definite notice to quit is given, it is not invalidated by the addition of words requiring, in a notice by the landlord, an increase, or in a notice by the tenant, a diminution, of rent, if the tenant stays on, and that a notice so expressed operates as a notice to quit with an offer to grant or to take a new tenancy; as the case may be. Thus, it was laid down by the majority of the Court of Appeal in Ahearn v. Bellman (1879) 4 Ex. D. 201 : 48 L.J. Ex. 681 : 40 L.T. 711 : 27 W.R. 928 that although a notice to quit must be clear and certain so as to bind the party who gives it and to enable the party to whom it is given to act upon it at the time he receives it, it cannot be laid down as an inflexible rule of law that the notices to be given must not be optional. In the case before the Court of Appeal, the notice was in these terms: 'I hereby give you notice to quit and deliver up possession of the shop premises and show-rooms now held by you as tenant from me, on or before the first day of May 1878; and I hereby further give you notice that should you retain possession of the premises after the date before mentioned, the annual rental of the premises now held by you from me will be 160 payable quarterly in advance.' It is obvious that the first part of the notice was sufficiently precise to terminate the tenancy. The second part merely gave the tenant the option of a new contract of tenancy. Doe v. Jackson (1779) 1 Dougl. 175, Doe d. Lyster v. Goldwin (1841) 2 Q.B. 143 : 10 L.J.Q.B. 275 : 1 G. and D. 463; Roberts v. Hayward (1828) 3 Car. and P. 432; Bury v. Thompson (1895) 1 Q.B. 696 : 64 L.J.Q.B. 500 : 14 R. 299 : 72 L.T. 187 : 43 W.R. 338 : 59 J.P. 228. In two analogous cases in this country, the rule in question has been followed. Kikobhoi v. Kalu Ghela 22 B. 241 and Adolph Sharager v. Emma Price 18 C.W.N. 1059. In our opinion, the present case falls rather within the principle of the decision in Bradley v. Atkinson 7 A. 899 than within the rule laid down by the Court of Appeal in Ahearn v. Bellman (1879) 4 Ex. D. 201 : 48 L.J. Ex. 681 : 40 L.T. 711 : 27 W.R. 928. The inference follows that the tenancy was not terminated and the notice did not operate to enhance the original rent. The first ground, therefore, fails.
3. In so far as the second ground is concerned, Section 108, Clause (1895) 1 Q.B. 696 : 64 L.J.Q.B. 500 : 14 R. 299 : 72 L.T. 187 : 43 W.R. 338 : 59 J.P. 228, of the Transfer of Property Act provides that if the lessor neglects to make, within a reasonable time after notice, any repairs which he is bound to make to the property, the lessee may make the same himself and deduct the expense of such repairs with interest from the rent or otherwise recover it from lessor. In the case before us, the defendant asserted in his written statement that the landlord was liable to effect the repairs after notice had been given to him for the purpose, L and that after his failure, the tenant had, to his knowledge, effected the repairs himself. This allegation does not appear to have been challenged at the trial, and no evidence was adduced on behalf of the landlord to show under what circumstances the repairs were effected. It further appears from the judgment of the Small Cause Court Judge that the question was not raised before him in the shape in which it has been presented to us. In view of these facts, we are of opinion that sufficient ground has not been made out to justify our interference in revision. The second ground, therefore, fails.
4. The result is that this Rule is discharged with costs. We assess the hearing fee at two gold mohurs.