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TMI Blog1962 (5) TMI 44X X X X Extracts X X X X X X X X Extracts X X X X ..... respondents filed the suit for ejectment basing their claim for ejectment on the provisions of s. 12(3)(a) of the Bombay Rents, Hotel and Lodging House rates Control Act, 1947 (Bom. LVII of 1947), hereinafter called the Act. 3. Within two months of the institution of the suit, the appellant deposited an amount of ₹ 1,075/- in Court, towards arrears of rent and, with the permission of the Court, the respondents withdrew a sum of ₹ 900/- which was the amount due for arrears up to that time. The Trial Court decreed the suit for ejectment together with arrears of rent for three years and costs. An appeal against the decree for ejectment was dismissed by the appellate Court. The revision to the High Court was also unsuccessful, and, it is against the order in revision that this appeal has been preferred. 4. Four points were urged before the High Court : (1) That the month of tenancy was not by the Indian Calendar, but was by the British Calendar and that the Courts below had ignored evidence in that regard. (2) Assuming that the month of tenancy was by the Indian Calendar according to the lease, it would be deemed to be by the British Calendar in view of the provision ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ot comply with the requirements of s. 106 of the Transfer of Property Act and that therefore there had been no determination of the tenancy which is a condition precedent for the landlord being entitled to possession and, consequently, for instituting a suit for ejectment on any ground whatsoever, including the ground of rent being in arrears. 8. The first point to determine, therefore, is whether it is a condition precedent for the institution of a suit by a landlord for the recovery of possession from a tenant who has been in arrears of rent that there had been first a determination of the contractual tenancy. If it is not a condition precedent; it will not be necessary to determine whether the month of the tenancy continued to be according to the Indian Calendar according to the contract, or had been according to the British Calendar in view of s. 27 of the Act, when a tenancy is created under a contract between the landlord and the tenant, that contract must hold good and continue to be in force till, according to law or according to the terms of contract, it comes to an end. Section III of the Transfer of Property Act states the various circumstances in which a lease of imm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... his tenancy has determined. The section does not create a new right in the landlord to evict the tenant when the tenant does not pay his rent. It does not say so, and therefore, it is clear that a landlord's right to evict the tenant for default in payment of rent will arise only after the tenancy is determined and the continued possession of the tenant is not account of the contractual terms but on account of the statutory right conferred on him to continue in possession so long as he complies with what sub-s. 1 requires of him. The landlord is restricted from evicting the tenant till the tenant does not do what he is required to do for peaceful possession under sub-s. (1) of s. 12. We are therefore of opinion that where a tenant is in possession under a lease from the landlord, he is not to be evicted for a clause which would give rise to a suit for recovery of possession under s. 12 if his tenancy has not been determined already. It follows that whenever a tenant acts in a way which would remove the bar on the landlord's right to evict him it is necessary for the landlord to serve him with a notice determining his tenancy and also serve him with a notice under sub-s. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ions of the Act and not by virtue of the extension of the period of the lease. It is a necessary consequence of this view that the restriction on the landlord's right to recover possession under s. 12 of the Act operates after he has determined the tenancy and that till then the rights between the parties with respect to eviction would be governed by the Ordinary law. 12. It was said in Ragbubir Narayan Lotlikar v. Fernandez AIR1953Bom76 . 13. (Bom. Rents, Hotel and Lodging House Rates Control Act (Bom. Act LVII of 1947) : In our opinion, s. 28 applies only to those suits between a landlord and a tenant where a landlord has become entitled to possession or recovery of the premises demised. Under the Transfer of Property Act a landlord becomes entitled to possession when there is a determination of tenancy. A tenancy can be determined in any of the modes laid down in s. III; and once the tenancy is determined, under s. 108(q) the lessee is bound to put the lessor into possession of the property. It is, therefore, only on the determination of the lease or the tenancy that the landlord becomes entitled to the possession of the property, and when he has so becomes entitled t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e provisions of the Transfer of Property Act. 18. Shri Hem Chand's Case I.L.R. (1955) Pun 36 dealt with the provisions of s. 13(i) of the Delhi and Ajmer Merwara Rent Control Act XXXVIII of 1952. This section provided that no decree or order for the recovery of possession of any promises shall be passed by any court in favour of the landlord against a tenant, notwithstanding anything to the contrary contained in any other law or any contract. It was held that the Rent Control Act provided the procedure for obtaining the relief of ejectment and that being so the provisions of s. 106 of the Transfer of property Act had no relevance, in considering an application for ejectment made under that Act. There is nothing in the Act corresponding to the provisions of s. 13(1) of the Delhi Ajmer Merwara Act. It is unnecessary for us to consider whether Shri Hem Chand's case I.L.R. (1955) Pun was rightly decided or not. 19. In Meghji Lakhamahi and Brothers v. Furniture Workshop (1954) A.C. 80 the Privy Council dealt with an application for possession under s. 16 of the Increase of rent (Restriction) Ordinance, No. 23 of 1949 (Kenya) whose relevant portion is : (1) No order for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a tenant under these Acts are, first a right to hold over or 'status of irremovability,' and, next, a right not to have his rent unduly raised. The right to hold over is a right that comes into existence after the expiration of the contractual tenancy. During the contractual tenancy the tenant, being in possession under the protection of his contract, has no need of the protection of the Act to enable him to retain possession, but during that tenancy the Act protects him in regard to rent by providing that, notwithstanding any other agreements which he may make with his landlord to rent, he is not to be charged a higher rent than the law allows, and if he is charged a higher rent than that he can have it reduced. The right to hold over after the termination of the contractual tenancy, and the right to protection during the contractual tenancy are two rights which must be kept distinct from each other. 24. It may be mentioned that s. 5 of the aforesaid Act of 1920 provided that no order or judgment for the recovery of possession of any dwelling house to which the Act applied or for the ejectment of a tenant therefrom would be made or given unless the case fell within one ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e per month according to the other calendar followed immediately before such date. 29. There is nothing in the aforesaid rule or the section about the conversion of the month of the tenancy from the month according to the Hindu calendar to the month according to the British Calendar. They only provide for the recoverability of the rent according to the British Calendar. Since the enforcement of the Act on February 13, 1948, the monthly rent would be for the month according to the British Calendar. The monthly rent could be recovered after the expiry of a month from that date or the rent for the period from the 13th February to the end of the month could be recovered at the monthly rate and thereafter after the expiry of each Calendar month. There is nothing in the section or the rule in regard to the date from which the month for recovery of rent should commence. This provision was made probably, as a corollary to the statute providing for standard rents. Standard rents necessitate standard months. There are a number of calendars in use in this country. The Hindus themselves use several calendars. The Muslims use a different one. Some calendars are used for particular purposes. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... le with respect to this period of a month. No interference with any such term of the contract has been made by any provision of the Act and therefore we hold that the provisions of s. 27 of the Act and r. 4 of the Rules, do not in any way convert the month of the tenancy according to the Indian Calendar to the month of the British Calendar. 30. The High Court said in the judgment that Mr. Parghi, who was appearing for the appellant, was unable to cite any decision in support of the contention raised by him. Our attention, however, has been drawn to two cases decided by the Bombay High Court. They are Civil Revision Applications Nos. 247 of 1956 and 1583 of 1960 decided by Dixit and Tendolkar, JJ and Patwardhan J., on February 22, 1957, and August 16, 1961, respectively. The latter decision had to follow the earlier one. In the earlier case, the notice to quit required the tenant to give possession on May 1, 1953. The tenancy had commenced according to the Hindu Calendar. The notice was given according to the British Calendar. The High Court held the notice to be valid, agreeing with the contention that the effect of the provisions of s. 27 of the Act was to make the tenancy whic ..... X X X X Extracts X X X X X X X X Extracts X X X X
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