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1974 DIGILAW 84 (GUJ)

JETHANAND DULHANUMAL LALVANI v. PRATAPRAY PARSHOTTAM,proprietor OF PARSHOTAM HEMCHAND,bhavnagar

1974-08-14

S.H.SHETH

body1974
S. H. SHETH, J. ( 1 ) THE plaintiff filed the present suit against the defendant for recovering possession of the suit premises on the ground that the defendant had been in arrears of rent for a period of 36 months commencing from Kartik Sud 1 of S. Y. 2023 to Asho Vad 30 of S. Y. 2025. The suit premises are a shop situate at Bhavnagar. It was let out under rent note Ex. 46 at a monthly rent of Rs. 24. 00. The plaintiff purchased the suit premises on September 9 1966 The plaintiff tried to serve upon the defendant statutory notice dated September 3 1969 but it was returned to the plaintiff with endorsement refused made by the postal authorities. The plaintiff filed the present suit on October 28 1969. ( 2 ) THE defendant filed his written statement in which he raised plea as to the standard rent and challenged the validity of the service of notice. The learned trial Judge fixed the contractual rent as standard rent and held that service of notice upon the defendant was valid. He however found that the defendant had been in arrears of rent for a period of 36 months and was not ready and willing to pay them. He therefore passed in favour of the plaintiff decree for possession on the ground of arrears of rent. ( 3 ) THE defendant appealed against that decree to the District Court. The learned District Judge allowed the appeal set aside the decree passed by the learned trial Judge and dismissed the suit. ( 4 ) IT is that appellant decree which is challenged by the plaintiff in this Civil Revision Application. ( 5 ) MR. Bhatt appearing for the plaintiff has contended that the learned District Judge was in error in holding that the defendant had been ready and willing to pay the standard rent. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10 Mr. Hathi appearing for the defendant has argued that the plaintiff has claimed rent and possession on the basis of arrears of rent calculated not according to the British calendar but according to the Gujarati Calendar. The plaint makes is abundantly clear that the plaintiff has claimed rent and possession according to Gujarati calendar. Now subsec. (1) of sec. 27 of the Bombay Rent Act provides as under :- 27 Notwithstanding anything contained in any law for the time being in force or any contract custom or local usage to the contrary rent payable by the month or year or portion of a year shall be recovered according to the British Calendar. This sub-section has been worded in absolute language. Irrespective of what any other law provides irrespective of any other contract between the parties or irrespective of any custom or local usage to the contrary a landlord is under a statutory obligation to recover rent according to British Calendar. The absolute language in which sub-sec. (1) of sec. 27 has been worded in my opinion shows that if there is any contract between a landlord and a tenant to recover rent according to any calendar other than the British calendar it is void. In the instant case the plaintiff has claimed rent according to Gujarati calendar. Such a claim made by the plaintiff is clearly in contravention of sub-sec. (1) of sec. 27. Sub-sec. (1) of sec 27 recognises only the British Calendar so far as the payability of rent is concerned. It has been enacted for a very good purpose because in our State there are many calendars. Different sections of people have different calendars. In order to introduce the uniformity in the matter of payability of rent the Legislature has very advisedly introduced the British Calendar for paying the rent. The absolute language in which sub-sec. (1) of sec. 27 has been worded renders in my opinion all contracts to recover rent except in accordance with the British calendar void. In order to introduce the uniformity in the matter of payability of rent the Legislature has very advisedly introduced the British Calendar for paying the rent. The absolute language in which sub-sec. (1) of sec. 27 has been worded renders in my opinion all contracts to recover rent except in accordance with the British calendar void. The plaintiff therefore could not have claimed rent according to Gujarati calendar nor could he have claimed possession on the basis of arrears of rent calculated according to Gujarati calendar. Sub-sec. (2) of sec. 27 throws further light on this question. It reads as under :- 27 The State Government may prescribe the manner in which rent recoverable according to any other calendar before the coming into operation of this Act shall be calculated and charged in terms of the British Calendar. In order to give effect to the provisions of sub-sec. (2) of sec. 27 the rule-making authority has framed rule 4 of the Bombay Rents Hotel and Lodging House Rates Control Rules 1948 It provides as under :- If before the Act comes into force the rent in respect of any premises was chargeable according to a calendar other than the British calendar the landlord shall recover from the tenant rent for the broken period of the month year or portion of the year immediately preceding the date on which the Act comes into force proportionate amount according to the aforesaid calendar month year or portion of the year at which the rent was then chargeable. After such date the landlord shall recover rent according to the British Calendar. The rent chargeable per month according to the British calendar shall not exceed the rent which was chargeable per month according to the other calendar followed immediately before such date. When sub-sec. (2) of sec. 27 and Rule 4 are read together it is quite clear that the legislature at the commencement of the Bombay Rent Act wanted to introduce the uniform system in the matter of payability of rent. They therefore provided for a smooth transition from any other method followed by a landlord and a tenant in the matter of payability of rent to the method of paying rent according to British calendar. In addition to providing for this transition the legislature has provided under sub-sec. (1) of sec. They therefore provided for a smooth transition from any other method followed by a landlord and a tenant in the matter of payability of rent to the method of paying rent according to British calendar. In addition to providing for this transition the legislature has provided under sub-sec. (1) of sec. 27 that after the Bombay Rent Act came into force no landlord could charge from his tenant rent according to any other calendar than the British Calendar. The claim which the plaintiff has made against the defendant in the instant case is according to a calendar which does not answer the description of the calendar given in sub-sec. (1) of sec. 27. Therefore it was not open to the court to entertain his claim. In my opinion on this ground the suit filed by the plaintiff was not maintainable. In view of these two findings this Revision Application must fail. It is therefore dismissed. Rule is discharged with costs. Application dismissed. .