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1971 DIGILAW 290 (KAR)

KRISHNA BAI v. CHOMA GOWDA

1971-09-21

DATAR

body1971
( 1 ) PETITIONER is the landlord. He filed a petition under S. 41 (2) of the mysore Land Reforms Act, 1961 (herinafter called the Act), for eviction of the respondent-tenant on the ground that the tenant had failed to pay the rent of his lease-hold during two consecutive years. The allegation, was that the rent for the year 1965-66, "1966-67 had not been paid. It was alleged by the landlord that he issued a notice as per Ext. P5 dt. 2-5-1966 informing the tenant that he had failed to pay the rent for the year 1965- 66. Similarly, another notice as per Ext. P7 dt. 1-5-1967 was issued regarding the default for the year 1966-67. Thereafter, the landlord issued a notice as per Ext. P9 dt. 19-7-1967 informing the tenant that he had failed to pay the rent for the two consecutive years 1965-66 and 1966-67. The tenant having failed to remedy the breach within 6 months, the application was filed for possession under the provisions of S. 41 (2) of the Act. The tenant resisted the application. ( 2 ) THE Land Tribunal, Puttur, South Kanara, by the order passed on 8-7-1968 dismissed the application. It was held that the notice issued was not in accordance with the provisions of S. 22 of the Act and also that there was no proper termination of tenancy. ( 3 ) THE order was challenged before the Court of the District Judge of South Kanara at Mangalore in MA. No. 141 of 1968. The learned District judge by the judgment dated 6-1-1971 has affirmed the order passed by the Land Tribunal. The learned appellate Judge has affirmed the findings of the Land Tribunal on both the questions, namely that the notice issued was premature and that he did not terminate the tenancy as required by the proviso to S. 22 (1) of the Act. It is this order that is challenged in this revision petition. ( 4 ) THE relevant provision, i. e. , S. 22 of the Act reads as under: 22. Eviction of tenant for default, etc. It is this order that is challenged in this revision petition. ( 4 ) THE relevant provision, i. e. , S. 22 of the Act reads as under: 22. Eviction of tenant for default, etc. , (1) Notwithstanding any agreement, usage, decree or order of a court of law, or anything contained in any enactment or law repealed by S. 142 or in any other law in force before the commencement of such enactment or law and subject to the provisions of S. 14, no person shall be evicted from any land held by him as a tenant except on any of the following grounds, namely:" (a) that the tenant has failed to pay the rent of such land on or before the due date during two consecutive years, provided the landlord has issued every year within three months after the due date, a notice in writing to the tenant that he has failed to pay the rent for that year; provided that no tenant shall be evicted under this sub-section unless the landlord has given six months notice in writing informing the tenant of his decision to terminate the tenancy and the particulars of the ground for such termination, and within that period, the tenant has failed to remedy the breach for which the tenant is proposed to be evicted. Explanation. A tenant shall be deemed to have failed to pay rent payable bv him to the landlord for any year, if he does not pay it before the end of June next after the expiry of the year. " ( 5 ) THE requirement of S. 22 (1) of the Act therefore is that the landlord must have issued notice every year within three months after the due date of notice in writing to the tenant intimating that he has failed to pay the rent for that year. What is the due date for the purpose of payment of rent has not been clearly stated in any of the provisions of the Act. The explanation to the section states that a tenant shall be deemed to have failed to pay the rent if he does not pay before the end of June next after the expiry of the year. It is also important to note that the word year has not been "defined in the Act. Ss. The explanation to the section states that a tenant shall be deemed to have failed to pay the rent if he does not pay before the end of June next after the expiry of the year. It is also important to note that the word year has not been "defined in the Act. Ss. 8 and 9 of the Act merely state that the rent payable by a tenant shall be paid annually and in so far as the rent, if it is a share of gross produce, it shall be payable at the village where the land is situated before the date notified by the State Government in respect of the local area in which the village is situated. In the present case, the landlord appears to have relied upon the notification issued bv the state Government of the 17th January, 1967 notifying that the khariff crop is payable by 31st March of the year. There is no material placed before the Court to show that what was payable by the tenant was a share of gross produce and therefore the tenant was liable to pav the khariff produce on the 31st of March. In Thattasena Subbaraya v. Chlnne Gowda, (1972) 1 Mys. L. J. 322. ( 6 ) IT has been held that the combined effect of the provisions of Ss. 8. 9 and 22 of the Act as also of the deeming provisions of the explanation is that the tenant will be held to have committed default in payment of the rent or failed to pay the rent only if he does not pay the rent till the end of June next after the expiry of the year. It is only "if the tenant has failed to pay within the due date that the landlord has to issue notice within three months after the due date. Tn my view, the due date would be 30th of June next after the expiry of the year. Therefore, the landlord has to give notice within the period of three months after 30th June. Since the tenant is entitled to pay the rent till the end of June and he will be deemed to have failed to pay the rent only if he has not paid till the end of june, the tenant can be said to have failed to pay the rent only after the first of July. Since the tenant is entitled to pay the rent till the end of June and he will be deemed to have failed to pay the rent only if he has not paid till the end of june, the tenant can be said to have failed to pay the rent only after the first of July. In the present case it is undisputed that the notices were issued long prior to first of July. Under the provisions of S. 22 (1) of the act it is clear that the landlord must give notice within three months after due date if the tenant has failed to pay the rent. The tenant will not be deemed to have failed to pay the rent till 30th of June and the due date is upto 30th of June. The notices given before the 30th of June do not satisfy the requirement of S. 22 (1) of the Act enabling the landlord to file an application for eviction. Therefore, the view taken by the Courts below on this question is sound and does not call for interference. ( 7 ) THE other ground upon which the courts below have rejected the claim of the landlord is that he has not terminated the tenancy as required by the proviso to S. 22 (1)of the Act. By Ext. P9 the landlord has called upon the tenant to pay him arrears of rent for the year 1965-66 and 1966-67 within six months from the date of the receipt of notice and if he fails to pay the arrears he will be liable for eviction from the holding as per the provisions of the Act. Under the proviso to S. 22 of the Act it has been stated that no tenant shall be evicted under this sub-section unless the landlord has given six months notice in writing informing the tenant of his decision to terminate the tenancy, etc. A notice under this proviso can be issued intimating the tenant of his decision to terminate the tenancy and also calling upon the tenant to remedy the breach which is complained of. A combined notice combining both the matters can be issued. A notice under this proviso can be issued intimating the tenant of his decision to terminate the tenancy and also calling upon the tenant to remedy the breach which is complained of. A combined notice combining both the matters can be issued. Similar provisions of the Bombay Rent Act were considered by this Court in the case of Siddappa Adivppa Rokhadi v. Venkatesh Raqhavendra Hubballi wherein a Bench of this Court followed the judgment of the High court of Calcutta in the case of Suryn Properties (P) Ltd. v. Bimalendu nath Sarnar and held, that there can be simultaneous notices under the statutory provisions and it is permissible to issue both the notices in one and at the same time. If that is so, it is clear that there is nothing either in the T P. Act or in the Land Reforms Act requiring the landlord to issue separate notices. Both the requirement of S. 22 as also a notice determining the tenancy under S. 106 of the T. P. Act can be combined and one notice issued The notice which is required to be issued is an intimation to the tenant of the breach as also of termination of tenancy and it could be a combined one. In the present case, as the notice issued did not determine the tenancy of the tenant, it is clear that it is not in accordance with the provions of the law. In that view, it has to be held that the view that by the Courts below even on this question is sound and does not call or interference. ( 8 ) IN the result, for the reasons stated above, this revision petition fails and the same is dismissed. In the circumstances of the case, there will be no order as to costs. --- *** --- .