Chhotelal Banshidhar v. Abdullabhai Abdul Gafoor — 1952 DIGILAW 8 (MP)

JUDGEMENT : MEHTA, J. In this appeal the plaintiff Chhotelal son of Bansidhar had sued the defendant Abdullabhai for ejectment on the ground that the defendant had been ins arrears in the payment of rent and that the plaintiff wanted the shop for his own use and he, therefore, gave notice to the defendant to vacate. The defendant raised various contentions and the trial Court held that the notice to quit is not valid and therefore dismissed the plaintiff's suit. In appeal the District Judge confirmed the judgment and decree of the trial Court and dismissed the appeal. 2. At the time this appeal was heard the Sthan Niyantran Vidhan had come into force. Mr. Niwaskar contended that under S. 12 of the Sthan Niyantran Vidhan retrospective effect can be given to all pending matters and therefore he contended that the plaintiff wanted to base his ground of eviction under S. 4 of the Sthan Niyantran Vidhan. He contended on behalf of the plaintiff-appellant that the grounds for ejectment are that the house in suit is dilapidated and needs construction and substantial repairs which cannot be made without the defendant's eviction from the house; that the house in question is required by the owner for residence and there is meagre accommodation for the plaintiff's family; that the defendant-respondent has caused substantial damage to the premises so as to diminish its value; that the defendant is occupying premises of his own and hence he is not entitled to remain in the premises any longer. 3. Mr. S.D. Sanghi learned pleader for the respondent urged that the remand will not serve any useful purpose as both the trial Court and the lower appellate Court have held that notice to quit has been held to be invalid. Hence the question arises whether a landlord can file a suit for ejectment of a tenant without giving notice to quit in case the tenant contravenes any of the clauses of S. 4 of the Sthan Niyantran Vidhan of Samvat 2006 and therefore the matter was referred to a Division Bench to consider whether in view of the provisions of the Sthan Niyantran Vidhan of Samvat 2006, a valid notice to terminate the tenancy is or is not necessary. 4. Mr. 4. Mr. Newaskar contended that having regard to the preamble of the Sthan Niyantran "Vidhan, it appears that the Act has codified the Jaw with regard to letting of premises on rent, requisition of dwelling houses, control of rent paid in respect thereof and restricting the eviction of tenant therefrom. He contended that the grounds of ejectment, mentioned in S. 4 are exhaustive and therefore a notice to quit is not necessary. He contended that the Sthan Niyantran Vidhan has superseded and repealed the previous law on the subject. On the other hand it is argued by Mr. Sanghi that the Sthan Niyantran Vidhan does not abrogate the provisions of T. P. Act. Under the provisions of the T. P. Act under Sections 106 and 111 the legal relation between the landlord and the tenant cannot be determined except by notice to quit in case of monthly tenancy and in case of fixed tenancy until the expiration of the fixed period by efflux of time. 5. Having regard to the facts of this particular case it is quite clear that this is a case of monthly tenancy and according to the provisions of S. 106 of the Transfer of Property Act in this case the plaintiff-landlord had given a notice to the defendant-tenant to quit but this was held to be invalid by both the Courts below. In this case the contract of lease distinctly stipulated that in case the landlord wanted to eject the tenant from the premises, he must give one month's notice expiring with the period of tenancy. The determination of the lease by such notice must have become complete by the expiration of a valid notice to quit before the institution of the suit. Here, before the landlord can seek protection of the provisions of S. 4 of the Sthan Niyantran Vidhan of S. Y. 2006, he must prove that he had determined the tenancy by a valid notice to quit and then only the provisions of S. 4 of the Sthan Niyantran Vidhan will come into play. Here, before the landlord can seek protection of the provisions of S. 4 of the Sthan Niyantran Vidhan of S. Y. 2006, he must prove that he had determined the tenancy by a valid notice to quit and then only the provisions of S. 4 of the Sthan Niyantran Vidhan will come into play. It appears to me that in the state of law as modified by the terms of the Sthan Niyantran Vidhan it becomes necessary for a landlord seeking to evict his tenant, to prove not only that the tenant is liable to ejectment under the general law or under the contract of tenancy, but also that the tenant cannot claim protection from ejectment by reason of the provisions of the Sthan Niyantran Vidhan. It is true that by merely proving by valid notice to quit, a landlord cannot get a decree for ejectment and possession. He has, therefore, to prove one of the grounds mentioned in S. 4 of the Sthan Niyantran Vidhan. However the relation of landlord and tenant in view of the contract of tenancy cannot be determined except by a valid notice to quit. 6. Hence notice to quit and other grounds of objection have got to be proved. I am clearly of opinion that in the particular circumstances of this appeal the provisions of Sthan Niyantran Vidhan have not abrogated or repealed the provisions of the T. P. Act with regard to the ejectment of a tenant by first giving him notice to quit. In the absence of notice to quit the contractual tenancy cannot be determined. In my opinion before a landlord can sue for eviction of a tenant he must terminate the tenancy i.e., either by effluxion of time or by determination of a lease providing for a forfeiture or by a notice to quit in accordance with law. Section 4 of the Sthan Niyantran Vidhan in no way interferes with those provisions. Unless and until a tenancy or a lease is determined, a landlord is not entitled to obtain from a Court an order for eviction or possession. Here both the Courts have held that the notice to quit is bad. 7. Hence my answer to the reference is that under the peculiar facts of this case the landlord cannot evict the tenant before determination of the tenancy by giving a valid notice. 8. Here both the Courts have held that the notice to quit is bad. 7. Hence my answer to the reference is that under the peculiar facts of this case the landlord cannot evict the tenant before determination of the tenancy by giving a valid notice. 8. KAUL, C.J. :- I have had the advantage of reading the judgment written by Mehta, J., and agree with the conclusion arrived at by him. I will content myself with making a few observations of my own. 9. It was contended by Mr. Newaskar that the provisions of Act 15 of 1950 (sic) had created a statutory tenancy and that the provisions of S. 106 of the T. P. Act were abrogated and accordingly could not be applied. 10. With regard to the first of these contentions I am clear that Act 15 of 1950 did not create any statutory tenancy. The tenancy in the present case was admittedly created by a private contract. All that Act 15 of 1950 has done with regard to a lease like the present, is that it regulates by law the relations between the landlord and the tenant with respect to certain matters arising under the lease. For instance the rent that may be recoverable by the landlord in respect of the premises and ejectment of the tenant by the landlord only on specified grounds are matters to be regulated by law. This cannot be said to be the creation of a statutory tenancy. It was contended by Mr. Newaskar that the (sic) is an amending and a consolidating Act and its provisions must be taken to contain the whole law on the subject with which it deals. This may be conceded. It may further be conceded that as stated in the preamble of the said Act, ejectment of the tenants is one of the subjects dealt with by the statute. The question however is does the statute lay down the whole law pertaining to ejectment of tenants. I am clear that the answer to this query must be in the negative. Section 4 is one of the provisions which purports to deal with the question of ejectment of tenant in one of its aspects. That section however lays down only the grounds on which a suit for ejectment may be brought against a tenant. I am clear that the answer to this query must be in the negative. Section 4 is one of the provisions which purports to deal with the question of ejectment of tenant in one of its aspects. That section however lays down only the grounds on which a suit for ejectment may be brought against a tenant. This as already observed is only one aspect of the problem with which a suit for ejectment of a tenant is concerned. There is no section in this law which lays down the defences that may be open to a defendant in a suit for ejectment brought under the Act. It was contended that any defences that may be raised in such a suit must necessarily flow from the grounds on which a suit for ejectment may be brought and must therefore be held to be implied in S. 4 of the Act. It was further contended that no grounds other than those which are employed in S. 4 were open to a tenant against whom a suit for ejectment was brought after Act 15 of 1950 came into force. I am unable to accept this contention. A lease is a legal concept with which we are all familiar. It is one of the modes of transfer of property recognised by our law. Once a valid lease is created it gives rise to various rights and obligations as between the lessor and the lessee. The right to eject the tenant from the demised premises is only one of them. Whenever it is attempted to enforce any of the rights arising under the lease, defences that may be taken to such a suit may arise out of the various aspects of the legal concept of the lease. They need not necessarily arise out of or be confined to the grounds on which a suit for enforcement of the right to eject may be brought. This does not require much argument. The pleas of limitation and jurisdiction for instance have nothing to do with the grounds of ejectment mentioned in S. 4. It cannot however be disputed that such pleas can be raised in a suit for ejectment. 11. The provisions of the (sic) must be given effect to so far as they go. This does not require much argument. The pleas of limitation and jurisdiction for instance have nothing to do with the grounds of ejectment mentioned in S. 4. It cannot however be disputed that such pleas can be raised in a suit for ejectment. 11. The provisions of the (sic) must be given effect to so far as they go. There is however nothing in the Act to suggest that it repeals the whole of the chapter pertaining to leases contained in the T. P. Act. It is well in this connection to bear in mind the following observations of Maxwell in his Interpretation of Statutes (See page 173 Ninth Edition) : "But repeal by implication is not favoured. A sufficient Act ought not to be held to be repealed by implication without some strong reason. It is a reasonable presumption that the Legislature did not intend to keep really contradictory enactments on the statute-book, or, on the other hand, to effect so important a measure as the repeal of a law without expressing an intention to do so. Such an interpretation, therefore, is not to be adopted, unless it be inevitable. Any reasonable construction which offers an escape from it is more likely to be in consonance with the real intention." 12. It was not disputed before us that if the provisions relating to notice by a landlord desirous of ejecting his tenant contained in the T. P. Act be applicable to the present case the appeal cannot succeed. There is a finding by the lower appellate Court that the notice issued by the landlord-appellant in this case to the tenant was bad and the suit for ejectment must therefore fail. There is nothing in Act 15 of 1950 which would induce me to hold that the provisions of the T. P. Act pertaining to notice to quit to be given by a landlord to his tenant, have abrogated by any of the provisions of (sic) there is accordingly no point in sending the case back to the lower Court for further inquiry. The disposal of this appeal shall however not preclude the appellant from raising any points which could be raised in this appeal in any suit which he may now bring for ejectment of his tenant. 13. The appeal is accordingly dismissed with costs. 14. The disposal of this appeal shall however not preclude the appellant from raising any points which could be raised in this appeal in any suit which he may now bring for ejectment of his tenant. 13. The appeal is accordingly dismissed with costs. 14. BY THE COURT : In the view of the law taken by the Bench the appeal is dismissed with costs. Appeal dismissed.