MALLIKARJUN VIRAPPA v. GOVIND WAMAN — 1976 DIGILAW 139 (KAR)

( 1 ) THIS revision under S. 50 of the Karnataka Rent Control Act, 1961 is directed against the judgment of the II Addl Dist Judge, Belgaum, reversing on appeal the judgment of the II Addl Munsiff of that district, and thereby dismissing the petition under S. 21 (1) (h) of the landlord Mallikarjun irappa Puned in respect of the premises which are in occupation of Govind Waman Kulkarni, the tenant respondent. Before the learned munsiff, it was alleged that the petitioner-landlord needed the premises for his reasonable and bona fide occupation and that he successfully determined the tenancy by a notice to quit. The learned Munsiff found that the premises were reasonably and bona fide required by the landlord and the notice to quit was not required, because the tenancy was statutory and accordingly he allowed the petition under S. 21 (1) (h ). Thereafter, the tenant came in appeal before the- learned Dist Judge and there he succeeded. It was held that although reasonable and bona fide requirement of the landlord was proved, yet the tenancy was contractual and a valid notice to quit was not given. On that ground, the appeal was allowed, and the petition under S. 21 (1) (h) was dismissed. Against that judgment of the learned Dist Judge, the present revision is filed by the petitioner-landlord. ( 2 ) THE sole contention of the learned Counsel for the petitioner referred to the question as to the statutory tenancy. It was strenuously contended that in view of Ex. P1, which was a lease deed executed by the tenant on 28-3-1957 in favour of the father of the landlord, the period of tenancy fixed was six months and since that period expired on 28-9-1957, the tenant became a statutory tenant and as such a notice to quit was not required to be given. The learned Dist Judge has repelled that finding on several grounds. He referred to the averments made in the petition where the landlord had specifically pleaded in paragraph 2 :"the opponent is a monthly tenant on a rental of Es. 15. Accordingly he has executed a rent note to that effect. The tenancy of the opponent begins from 28th day of each month and ends with the 27th day of the next month. "again in paragraph 3 of the petition, it was stated :" So the applicant gave a registered notice dt. 15. Accordingly he has executed a rent note to that effect. The tenancy of the opponent begins from 28th day of each month and ends with the 27th day of the next month. "again in paragraph 3 of the petition, it was stated :" So the applicant gave a registered notice dt. 2-11-1968 to the opponent calling upon him to vacate the premises on 28th Novr, 1968, and terminated his tenancy. "in para 4 of the petition, the cause of action was derived from the date of the termination of the notice to quit. This state of pleading clearly indicated that month to month tenancy was pleaded by the landlord and the said tenancy was terminated by notice to quit. That is why the cause action was taken from the date of the termination of that tenancy. It was however pleaded that after efflux of time as mentioned in Ex. P1, the tenancy terminated and the tenant became a statutory tenant for whom a notice to quit was not required. That apart, the learned Dist Judge has referred to the statements both of the landlord and of the tenant and he has inferred that all along the stress was upon contractual tenancy which was determined by a notice to quit. Receipts which are said to be Ex. D1 series in the judgment, also disclose that the rent was being received during the first week of every month. Admittedly, the tenant is in occupapation of the premises from near about 17 years even from before the execution of the lease deed Ex. P1. After the termination of that lease period on 28-9-1957, he was permitted to remain in occupation till 1969 when the petition under 9. 21 (1) (h) was filed for recovery of possession. In this manner, he remained in occupation for nearly 12 years after the efflux of time denoted in Ex. P1. As the pleadings stated and as the evidence indicated, the tenancy was all along treated as month to month and the rent was being paid on receipts by the landlord. In fact the previous ground of the landlord was that the tenancy was from month to month commencing from the first and ending with the last date of each month. That part of pleading was subsequently got amended and reliance was placed on Ex. In fact the previous ground of the landlord was that the tenancy was from month to month commencing from the first and ending with the last date of each month. That part of pleading was subsequently got amended and reliance was placed on Ex. P1 in order to validate the notice to quit which terminated by 27th Novr, 1968. All this led the learned Dist Judge to conclude that the tenancy was contractual and the mere fact that a six months lease was written on 28-3-57, ex. P1 did not make much of a difference. The tenant was in occupation of the premises from several years before the execution of that lease deed. Similarly, he continued to be in possession several years after the determination of that lease deed. Besides, the indication was the rents were paid by month to month and the intention of the landlord was to sustain the very same contractual tenancy. That is why a notice to quit was given determining the tenancy and the cause of action was taken from the date of the termination of that notice. ( 3 ) THE learned Counsel for the petitioner-landlord relied on several decisions pertaining to statutory tenancy and the ratio of these decisions is undoubtedly this, that a notice, to quit is not required for a statutory tenant. There can be no quarrel with that proposition. But in a case which is purely based on contractual tenancy, the tenant never assumes the legal character of a statutory tenant. At the same time it is held that a notice to quit will be a necessary requirement before an application under S. 21 (1) is filed in Court. In Ganga Dutt Murarka v. Kartik Chandra Das, AIR. 1961 SC. 1067, relied upon by the learned Counsel, their Lordships held that there is no prohibition against a landlord entering into a contractual tenancy with the tenant whose right of occupation is determined and who remains in occupation by virtue of the statutory immunity. In the instant case, in fact, the lease Ext. P1 remained totally ineffective, and either the previous contract of tenancy continued or a,t any rate, it was renewed after the expiry of the lease period. That was a clear indication from the statements made in the pleadings and also, a clear inference to that effect is to be drawn from the evidence adduced. P1 remained totally ineffective, and either the previous contract of tenancy continued or a,t any rate, it was renewed after the expiry of the lease period. That was a clear indication from the statements made in the pleadings and also, a clear inference to that effect is to be drawn from the evidence adduced. In Anand Nivas P Ltd v. Anandji Kalyanji's Pedhi, AIR. 1965 SC. 414, a similar indication was given by their Lordships as per the following. observation : " But with the determination of the lease, unless the tenant acquires the right of a tenant holding over, by acceptance ol rent or by assent to his continuing in possession by the landlord, the terms and conditions of the lease are extinguished, and the rights of such a person remaining in possession are governed by the statute alone. " ( 4 ) THE finding of the learned Dist Judge is that the tenant in the present case did acquire a right by holding over and that his previous contract never came to an end. Thereafter the learned Counsel referred to puwada Venkateswara Rao v. Chidamana Venkata Ramana, AIR. 1976 SC, 869. In that case, their Lordships dealt with the Andhra Pradesh Building (Lease, Rent and Eviction) Control Act (15 of 1960) and held that it was a complete code providing procedure for eviction and a prior notice under S. 106 of the t. P. Act terminating the tenancy was not necessary. As that case does not relate to Karnataka Rent Control Act, 1961 and one does not know in what manner the provisions contained in this Act are at variance with the provisions contained in the Andhra Pradesh Building (Lease, Rent and Eviction) control Act (15 of 1960), it is difficult to hold that the ratio of this case will be helpful. More so in Dattanpant Gopalvarao Devakate v. Vithalarao Marutrao, AIR. 1975 SC. 1111, a case under the Mysore Rent Control Act, 1961, their Lordships haye held that a notice under S. 106 of the T. P. Act is a ipre-requisite for an application under S. 21 (1 ). In that case which related to the Bombay area of the present Karnataka State, the lease deed expired after one year in April, 1946. Thereafter the tenant continued to occupy and he paid rents upto 1968. In that case which related to the Bombay area of the present Karnataka State, the lease deed expired after one year in April, 1946. Thereafter the tenant continued to occupy and he paid rents upto 1968. It was argued that he became statutory tenant after the efflux of one year in 1946. Nevertheless their Lordships held that a notice to quit was necessary and holding that such a notice was invalid, they dismissed the petition of the landlord for recovery of possession. In my opinion, the ratio of this Authority will decidedly go in favour of the tenant-respondent. ( 5 ) THERE is a decision of this High Court in Dyamappa Butti v. Somappa, AIR. 1969 Mys. 252= (1968) 1 Myslj. 221, in which a very much similar situation arose and it was held by the learned Judge that the case of the landlord being that it was a month to month tenancy, there was a subsisting contractual tenancy requiring a notice to quit before the proceedings could be initiated under the rent Control Act. That case is all in all in favour of the tenant-respondent. ( 6 ) AS held by the learned Dist Judge, who had carefully discussed the entire evidence, the tenancy was to commence on the first of every calendar month and that being the position, the notice to quit was obviously invalid. As the tenancy was not determined by a valid notice to quit under s. 106 of the T. P. Act, the petition under S. 21 (1) was not maintainable. From that point of view, the decision of the learned Dist Judge was quite correct and no interference can be made. The revision is, therefore, dismissed with costs. --- *** --- .