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TMI Blog1976 (5) TMI 102X X X X Extracts X X X X X X X X Extracts X X X X ..... the arrears of the rent legally recoverable from him within two months of the date on which a notice of demand for the arrears of rent has been served on him by the landlord in the prescribed manner; x x x x x x x x x x (f) that the accommodation let for non-residential purposes is required bona fide by the landlord for the purpose of continuing or starting his business or that of any of his major sons or unmarried daughters if he is the owner there of or for any person for whose benefit the accommodation is held and that the landlord or such person has no other reasonably suitable nonresidential accommodation of his own in his occupation in the city or town concerned. Plaintiffs case under section 12(1)(a) was that the defendant tenants had defaulted in paying rent for the period October 1, 1961 to May 31, 1962 and did not also pay or tender the amount in arrears within two months of the service of the notice of demand. Clause (f) of section 12(1) was invoked on the allegation that the accommodation let was required bona fide by the plaintiffs for the purpose of starting their own business. Before the suit was instituted the plaintiffs had determined the tenancy fro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nding business. Tirath Prasad also disclosed that the plaintiffs had already a partnership business in cloth at Satna though Damadi Lal and P.W. 5 Radhey Sham did not admit this. It also appears in evidence that the plaintiffs had yet another cloth business at a place called Ramnagar which was managed by Radhey Sham. The plaintiffs claimed that they would start a business at Satna, but Damadi Lal s evidence is that they had no income or saving. Tirath Prasad also said that their income was not even sufficient for their maintenance. Admittedly, plaintiffs had in their possession one room in the house which was let out to the defendants. The plaintiffs did not adduce any evidence to show how the said accommodation was unsuitable or insufficient for them to start their own business. It was also admitted that the plaintiffs had filed a suit for ejectment on an earlier occasion, but the defendants having agreed to pay increased rent the suit was not proceeded with. According to the defendants the present suit was not instituted on the defendants refusal to increase the rent further to ₹ 500/-a month. For the above reasons the trial court did not accept the case of bona fide re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he application for substitution made by Begamal s heirs overruling the plaintiffs objection. Ultimately on November 6, 1967 the High Court allowed the appeal setting aside the decree of the lower appellate court and restoring that of the trial court dismissing the suit. The High Court found that the defendants were not in arrears of rent. Differing from both the courts below the High Court held that the cheque which the defendants had sent to the plaintiffs in payment of the amount in arrears within a month of the service of the writ of summons on him amounted to a valid tender of rent as required by section 13, and in view of section 12(3) no order for eviction could be made. Section 12(3) provides that no order for eviction of a tenant shall be made on the ground of default if the tenant makes payment or deposits rent as required by section 13. This is what the High Court held on the validity of tender of rent by cheque: The question is as to whether, instead of presenting the cash, if a cheque is sent to the landlord, that is sufficient tender of the arrears of rent or not........In the highly deve- loped society, payment by cheque has become more convenient mode of disc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t; and (3) the High Court had no jurisdiction in second appeal to reverse the finding of the first appellate court on the question of reasonable requirement which was a finding of fact. In support of his first contention Mr. Gupte relied on two decisions of this Court, Anand Nivas (Private) Ltd. v. Anandji Kalyanji Pedhi Ors. and Jagdish Chander Chatterjee and Ors. v. Sri Kishan Anr. The statute considered in Anand Nivas case was Bombay Rents, Hotel and Lodging Rates Control Act, 1947 as amended in 1959. The question there was, whether a tenant whose tenancy had been terminated had any right to sublet the premises. Of the three learned Judges composing the Bench that heard the appeal, Hidayatullah and Shah JJ. held that a statutory tenant, meaning a tenant whose tenancy has determined but who continues in possession, has no power of subletting. Sarkar J.delivered a dissenting opinion. Shah J. who spoke for himself and Hidayatullah J. observed in the course of their Judgment: A statutory tenant has no interest in the premises occupied by him, and he has no estate to assign or transfer. A statutory tenant is, as we have already observed, a person who on determination of h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... scertained how far these notions are reconcilable with the provisions of the statute under consideration in any particular case. The expression statutory tenancy was used in England in several judgments under the Increase of Rent and Mortgage Interest (War Restrictions) Act, 1915, to refer to a tenant protected under that Act, but the term got currency from the marginal note to section 15 of the Rent and Mortgage Interest (Restrictions) Act, 1920. That section which provided inter alia that a tenant who by virtue of that Act retained possession of any dwelling house to which the Act applied, so long as he retained possession, must observe and would be entitled to the benefit of all the terms and conditions of the original contract of tenancy which were consistent with the provisions of the Act, carried the description in the margin conditions of statutory tenancy . Since then the term has been used in England to describe a tenant protected under the subsequent statutes until section 49(1) of the Housing Repairs and Rent Act, 1954 for the first time defile statutory tenant and statutory tenancy . Statutory tenant was define as a tenant who retains possession by virtue of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... we can proceed on the basis that a tenant whose contractual tenancy has determined but who is protected against eviction by the statute, has no right of property but only a personal right to remain in occupation, without ascertaining what his rights are under the statute. The concept of a statutory tenant having no estate or property in the premises which he occupies is derived from the provisions of the English Rent Acts. But it is not clear how it can be assumed that the position is the same in this country without any reference to the provisions of the relevant statute. Tenancy has its origin in contract. There is no dispute that a contractual tenant has an estate or properly in the subject matter of the tenancy, and heritability is an incident of the tenancy. It cannot be assumed, however, that with the determination of the tenancy the estate must necessarily disappear and the statute can only preserve his status of irremovability and not the estate he had in the premises in his occupation. It is not possible to claim that the sanctity of contract cannot be touched by legislation. It is therefore necessary to examine the provisions of the Madhya Pradesh Accommodation Control ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... upied by him. Considering the position of the sub-tenant of a statutory tenant in England, Lord Denning said in Solomon v. Orwell. When a statutory tenant sub-lets a part of the premises he does not thereby confer any estate or interest in the sub-tenant. A statutory tenant has no estate or interest in himself and he cannot carve something out of nothing. The sub-tenant, like the statutory tenant, has only a personal right or privilege. In England the statutory tenant s right to sub-let is derived from specific provisions of the Acts conceding this right to him; in the Act we are concerned with in this appeal, the right flows from his status as a tenant. This is the basic difference between the English Rent Restrictions Acts and the Act under consideration and similar other Indian statutes. In a Special Bench decision of the Calcutta High Court, Krishna Prosad Bose v. Sm. Sarajubala Dasi, Bachawat J. considering the question whether a statutory tenant continuing in occupation by virtue of the West Bengal Premises Rent Control (Temporary Provisions) Act, 1950 could sub-let the premises let to him, said: The Rent Control and Tenancy Acts create a special world of their own. The ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rt in holding that the landlord had no bona fide requirement. Mr. Gupte contended that the High Court had no jurisdiction in second appeal to upset the finding of the lower appellate court on this issue which, according to him, was a finding of fact. Mr. Nariman for the respondent relied on the decision of this Court in Madan Lal Puri v. Sain Das Berry to argue that the question was a mixed question of law and fact and that it was within the jurisdiction of the Court in second appeal to examine the correctness of the finding. In answer Mr. Gupte referred to another decision of this Court Mattulal v. Radhey Lal which, relying on an earlier decision of this Court in Sarvate T. B. v. Nemi Chand, held that such a finding was one of fact and not a finding on a mixed question of law and fact. We do not think that for the purpose of this case we need express any opinion on the apparent conflict between these two decisions. Plaintiffs case was that they had cloth and grocery business at village Nadan and that they desired to start a wholesale cloth and grocery business at Satna. The trial court s finding was based inter alia on the evidence that the plaintiffs had not adequate funds to st ..... X X X X Extracts X X X X X X X X Extracts X X X X
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