PRAKASH SURYA v. RASIKLAL ISHVERLAL MEHTA — 1976 DIGILAW 155 (GUJ)

D. A. DESAI, J. ( 1 ) SHRI Prakash Surya Petitioner herein has preferred this revision application against the judgment and decree in Regular Civil Appeal No. 138 of 1970 filed by him in the District Court Kutch at Bhuj by which he was directed to hand over vacant and peaceful posses sion of the premises occupied by him as a tenant. Respondent is the original plaintiff. ( 2 ) PLAINTIFF filed Regular Civil Suit No. 141 of 1969 in the Court of Civil Judge (Junior Division) Anjar District Kutch against the defendant for recovering possession of the premises being a house situated in Adipur town on the ground that the defendant is a tenant in arrears and is not shown to be ready and willing to pay the rent and also on the ground that the plaintiff reasonably and bona fide required the suit premises for his own use and occupation. The defendant tenant appeared in the suit and filed his written statement Ex. 14 inter alia contending that the notice terminating the tenancy was not legal and valid and that he was always ready and willing to pay the rent. He denied that the plaintiff required the suit premises reasonably and bona fide for his own occupation. He also raised a contention about the standard rent. ( 3 ) THE learned trial Judge held that the plaintiff has failed to prove that he reasonably and bona fide required the suit premises for his own occupation and consequently he did not decide the question of comparative hardship. The learned Judge fixed the standard rent of the suit premises at Rs. 85. 00 per month. It was also held that the plaintiff was a tenant in arrears from 1-1-1968 and that he was not shown to be ready and willing to pay the rent and the suit would be governed by sec. 12 (3) (a) of the Bombay Rent Act and the plaintiff will be entitled to recover possession of the suit premises on the ground that the defendant was a tenant in arrears of rent and he was not ready and willing to pay the rent. On this ground the learned trial Judge passed a decree directing the defend ant to hand over possession of the suit premises to the plaintiff. On this ground the learned trial Judge passed a decree directing the defend ant to hand over possession of the suit premises to the plaintiff. The defendant carried the matter in appeal being Regular Civil Appeal No. 138 of 1970 in the District Court Kutch at Bhuj. The learned District Judge who heard the appeal dismissed the same and confirmed the decree of the trial Court. Defendant tenant has questioned the correctness of the judgment and decree passed by the learned District Judge in this Civil Revision Application. ( 4 ) MR. Divecha learned advocate who appeared for the petitioner urged that the notice Ex. 32 on the basis of which the suit is filed is not legal and valid. It was also urged that if the standard rent of the suit premises is fixed at Rs. 100. 00 and if the defendant had the 31-12-1967 paid the rent at the rate of Rs. 160. 00 there was over payment which if properly adjusted would cover the period for which the rent is claimed. An any event it was contended that if the tenant cannot seek adjustment of over payment for a period of six months prior to the date when the con- tention put forth by him even in that case the over payment would show his readiness and willingness to pay the rent. It was lastly urged that in any event agreement between the parties clearly spelt out a liability to pay the education cess under the Gujarat Education Cess Act 1962 and if once the education cess is payable by the tenant in view of the recent decision of this High Court in Civil Revision Application No. 1344 of 1968 decided on 18 (DAHYALAL GANGARAM V. BHIMANI BHUPATRAI XVIII G. L. R. 349) in such a case it could not be said that the rent was payable by the month and the first condition for attracting the application of sec. 12 (3) (a) same would be lacking and therefore the case would not fall under sec. 12 (3) (a) and as the tenant has complied with the requirement of sec. 12 (3) (b) he is entitled to the protection under sec. 12 (3) (b) of the Rent Act. ( 5 ) THE first contention raised by Mr. Divecha on behalf of the petitioner is that the notice Ex. 32 dated 22nd November 1968 is illegal and invalid. 12 (3) (b) he is entitled to the protection under sec. 12 (3) (b) of the Rent Act. ( 5 ) THE first contention raised by Mr. Divecha on behalf of the petitioner is that the notice Ex. 32 dated 22nd November 1968 is illegal and invalid. The plaintiff first served notice Ex. 30 dated 12-11-1968 in which through oversight it was mentioned that the rent was paid upto 31-12-1968 though in fact the case of the plaintiff was that the rent was paid upto 31 As soon as this error came to light the plaintiff served another notice Ex. 32 dated 22nd November 1968. In this notice Ex. 32 paragraph 4 reads as under: that your tenancy in respect of House No. SDR. 117-118 situated at Adipur is hereby terminated. You are further instructed to make payment of the arrears of rent as stated in this paragraph. xx xx xx xxi therefore call upon you to deliver peaceful and vacant possession of the house No. SDR. 117-118 situated at Adipur to my client on the expiry of next month to this current monththis notice is received by the tenant on 25th November 1968. The current month would be month of November 1968 which would expire on 30th November 1968 and the tenant was required to hand over the actual and vacant possession of the suit premises on the expiry of next month meaning thereby on the 31st December 1968. ( 6 ) MR. Divecha however contended that sec. 106 of the Transfer of Property Act provides that a notice terminating the tenancy must expire with the end of a month of the tenancy and if the tenancy is terminated at any other point of time not expiring with the month of tenancy the notice would be illegal and invalid. It was therefore con- tended that when in the notice it was provided that the tenancy is hereby terminated it would only mean that as soon as the notice is signed by the Advocate the tenancy gets terminated. That is too narrow a construc- tion which is put on the expression is hereby terminated. The express- ion is hereby terminated means only one thing that the tenancy is terminated hereby only by notice. It is only when the notice is served it is terminated. That is too narrow a construc- tion which is put on the expression is hereby terminated. The express- ion is hereby terminated means only one thing that the tenancy is terminated hereby only by notice. It is only when the notice is served it is terminated. The notice becomes effective only if it is served upon the tenant and when a tenant is informed that his tenancy is terminated the consequent demand is one for surrender of possession. It is clearly mentioned in the last paragraph of this notice that the tenant should hand over vacant and peaceful possession on the expiry of the next month after the current month. When the notice is read as a whole it would only mean that the tenancy is terminated with the expiry not in fact of the current month but on the expiry of the month next after the month in which the notice is received by the tenant. That is the only meaning one can make out of the expression used in the notice. The narrow construction which Mr. Divecha seeks to put on the expression is hereby terminated meaning terminated in presentii when the notice is signed by the learned advocate would not make sense. The expression is hereby is well known meaning by this instrument or by this docu- ment. The document is the notice. The notice purports to convey that by this notice the tenancy is terminated. One cannot terminate the tenancy on his part only and then inform the tenant that the tenancy is already terminated before the notice is served and received by the tenant. Therefore the expression is hereby terminated would only mean that the tenancy is being terminated by this notice and the last paragraph would show that the tenancy would expire in the month next after the notice when the same is received by the tenant. It must be remembered that the notice to be served under sec. 106 of the transfer of Property Act must be construed in a broad and liberal manner and not in a pedantic manner. A narrower construction or too technical meaning to the language of notice would defeat the purpose behind it. In construing the notice the Court must bear in mind the purpose behind enacting sec. 106 of the Transfer of Property Act. A narrower construction or too technical meaning to the language of notice would defeat the purpose behind it. In construing the notice the Court must bear in mind the purpose behind enacting sec. 106 of the Transfer of Property Act. It is to inform the tenant that the landlord wants to exercise his right of re-entry. The landlord does not terminate the tenancy merely for the fun of it. Where a right of entry is reserved the tenant is given an advance intimation that the landlord proposes to exercise his right of re-entry and would give a re- asonable period to the tenant to make his arrangement so as to be able to surrender possession. In a monthly tenancy the notice is required to be of 15 days duration. The purpose behind enacting such a provi- sion is to give some reasonable time to the tenant to adjust his affairs 60 as to be able to find out alternative accommodation with a view to surrendering possession. That was the purpose behind enacting sec. 106 and one must remember that sec. 106 is subject to a contract to the contrary. Therefore while constructing a notice under sec. 106 which the parties by their contract can do away with one must remember that the notice being given for the purpose of enabling the tenant to adjust his affairs so that he is not suddenly called upon to walk out of the premises in which he is staying. If such be the purpose one must try to interpret and construe notices keeping in view the purpose for which such a notice is required to be given and that is why it is stated that the notice under sec. 106 must be broadly and liberally construed and not in a pedantic manner. If this is the correct approach let us look at the notice given in this case. By the notice tenant was told that he should vacate and hand over possession on the expiry of the month next after the current month in which he receives notice. He is given more than six weeks time to vacate the premises. In the background to say that the tenancy was terminated in presentii and only a time to vacate and a time to hand over possession is given is not correct. ( 7 ) MR. Divecha however referred to H. Z. ISLAM V. MOHD. He is given more than six weeks time to vacate the premises. In the background to say that the tenancy was terminated in presentii and only a time to vacate and a time to hand over possession is given is not correct. ( 7 ) MR. Divecha however referred to H. Z. ISLAM V. MOHD. RAFI A. I. R. 1971 ALLAHABAD 302 and urged that if the notice terminating the tenancy is couched in such language as would indicate that the tenancy is termin- ated in presentii and possession of the rented premises is demanded within one month from the receipt to the notice it is not a valid notice In the case under discussion the material part of the notice read as under: your tenancy of the aforesaid house is determined with effect from to day. There. fore within one month from the date of receipt of this notice after vacating the house deliver its actual possession to me otherwise upon the expiry of the aforesaid period I will be compelled to take action against you in a competent court of Law. It will immediately appear that the tenancy was terminated from the very day on which the notice was served. That becomes crystal clear from the first line of the notice quoted hereinabove. Such is not the case before me. In the case before me the expression is hereby terminated would only mean that the tenancy is terminated by notice and the termination is effected as stated in the last paragraph viz. that the tenant should hand over possession on the expiry of the month next after the current month in which he receives notice. Such a notice on its true construction is legal and valid. ( 8 ) IT was next contended that even though the agreement provided that the rent is to be paid at the rate of Rs. 160. 00 per month actually the standard rent is determined at the rate of Rs. 100. 00 per month and for some period the landlord also recovered the rent at the rate of Rs. 160. 00 per month and if the tenant had paid Rs. 3200. 00 to the landlord which if properly adjusted the rent for 32 months is paid and on that comput- ation the tenant would not be in arrears either on the date of the notice or on the date of the suit. 160. 00 per month and if the tenant had paid Rs. 3200. 00 to the landlord which if properly adjusted the rent for 32 months is paid and on that comput- ation the tenant would not be in arrears either on the date of the notice or on the date of the suit. There is no substance in this contention The contractual rent was Rs. 160. 00 per month. The trial Court fixed standard rent the rate of Rs. 85. 00 per month. In the appeal the Dis- trict Court fixed the standard rent at the rate of Rs. 100. 00 per month While so fixing the rent the learned District Judge has observed that the agreement Ex. 28 is executed by the defendant and if it is executed by the defendant it evidences contractual rent at the rate of Rs. 160. 00 per month. The learned Judge then proceeded to consider the question as to what should be the standard rent He found as a fact that the standard rent for one tenement would be Rs. 50. 00 per month and as defendant had two tenements in his possession it would be Rs. 100. 00 per month. Now it must be noted that the dispute about the standard rent was taken for the first time in the written statement. Notices were not replied 10. There is no evidence to show that at any earlier stage any dispute about standard rent was raised. Therefore it is an inescapable conclusion that the dispute about the standard rent was raised for the first time in the written statement. ( 9 ) NOW if the dispute about the standard rent is raised for the first lime in the written statement the question is whether it is open to the defendant tenant to readjust the rent at the rate of the standard rent from the inception to tenancy. Defendant has paid Rs. 3200. 00 as and by way of rent. At that time he was liable to pay the contractual rent at the rate of Rs. 160. 00 per month. The defendant went on paying the rent at the contractual rate of Rs. 160. 00 per month. It was paid accepted and acknowledged Now that the standard rent is fixed law does not permit the tenant to reopen the settled account and ask for adjustment for the entire period. 160. 00 per month. The defendant went on paying the rent at the contractual rate of Rs. 160. 00 per month. It was paid accepted and acknowledged Now that the standard rent is fixed law does not permit the tenant to reopen the settled account and ask for adjustment for the entire period. Where there was a liability to pay the amount arising from a contract between the parties and pursuant to the contract the amount is paid and accepted there is no question of reopening or readjusting the account unless there is a right vested in either party to that effect and the right is referable to any terms of contract or any statutory provision which becomes part and parcel of the contract. It is not suggested that there was a contract between the parties to readjust the account of rent as and when the standard rent is determined. Mr. Divecha therefore fell back on the povisions contained in sec. 20 of the Rent Act. Sec. 20 reads as under : any amount paid on account of rent after the date of the coming into operation of this Act shall except in so far as payment thereof is in accordance with the provisions of this Act be recoverable by the tenant from the landlord to whom it was paid or on whose behalf it was received or from his legal representative at any time within a period of six months from the date of payment and may without prejudice to any other remedy for recovery be deducted by such tenant from any rent payable by him to such landlord. Sec. 20 is clearcut and unambiguous in terms. It permits recovery of amounts paid not in accordance with the Act within the period of six months of payment. The last amount of rent was paid prior to 1-1-1968. That can be re-adjusted if the payment was not in accordance with the Act within a period of six months thereafter. The suit is filed in January 1969 and the claim for adjustment came in the written statement. There- fore sec. 20 cannot assist the defendant. ( 10 ) MR. Divecha however has an interesting argument to offer on the construction of sec. 20. He said that the tenant may not get the benefit of re-adjustment in view of the provision contained in sec. There- fore sec. 20 cannot assist the defendant. ( 10 ) MR. Divecha however has an interesting argument to offer on the construction of sec. 20. He said that the tenant may not get the benefit of re-adjustment in view of the provision contained in sec. 20 but if he has made over payment it must be construed as his readiness and willing- ness to pay the rent. I fail to see how a payment made under a contract can mean anything except payment pursuant to the contract. Till the contract stood modified by an order of a competent Court especially on the question of quantum of rent the obligations under the contract were binding on both the parties. Defendant agreed to pay Rs. 160. 00 per month as rent. When he paid that amount month to month he merely carried out his obligation under the contract simultaneously enjoying the benefit of continued occupation of the premises. Law permits modification of the terms of the contract where rent claimed by the contract is in excess of the standard rent by the Court determining the standard rent and the Courts order would itself pro tanto modify the contract. The Courts order would be prospective. At any rate there is nothing to show that it can retrospectively reopen the part payment There is nothing making it retrospective in the order fixing the standard rent. Any recovery of rent to be made after the determination of the standard rent will have to be according to the standard rent but any amount paid accepted and acknowledged as receipt of rent cannot be claimed back unless it falls within the four corners of sec. 20 and if a payment is made which when made was obligatory and was legal it can hardly be construed to say that it also showed readiness and willingness to pay the rent for a future period for which the rent was not paid. Therefore the contention of Mr. Divecha cannot be accepted. ( 11 ) THE last contention of Mr. Divecha was that the agreement between the parties clearly casts an obligation upon the tenant to pay over and above the rent the amount of education cess payable under the Gujarat Education Cess Act 1972 and other Municipal taxes In the agreement Ex. Therefore the contention of Mr. Divecha cannot be accepted. ( 11 ) THE last contention of Mr. Divecha was that the agreement between the parties clearly casts an obligation upon the tenant to pay over and above the rent the amount of education cess payable under the Gujarat Education Cess Act 1972 and other Municipal taxes In the agreement Ex. 28 which the learned District Judge has held to be binding between the parties and which the learned District Judge holds to be executed by the defendant it is clearly stated at term No. 3 thereof that the tenant shall pay over and above the rent water sanitary and electric consumption charges and education cess and as well as the drainage tax. It is thus crystal clear that the tenant as part of the terms of lease was under an obligation to pay various taxes including education cess payable under the Gujarat Education Cess Act. Now if the tenant was under an obligation to pay education cess which is payable every year the question would be whether in such a case the case would fall under secs. 12 (3) (a) or it would fall under sec. 12 (3) (b ). ( 12 ) WHERE possession is sought on the ground of non-payment of rent and it is shown that the rent for more than six months is in arrears and that the rent is payable by the month and there is no dispute about the standard rent or permitted increases and the tenant has neglected to pay the rent in arrears after receipt of the notice under sec. 12 (2) the case would be governed by sec. 12 (3) (a) of the Rent Act and the landlord would be entitled to recover possession. That is the finding of both the Courts. Both the Courts have held that this is a case in which there was no dispute about the standard rent prior to the institution of the suit and the rent was payable by month and rent was in arrears for a period of more than six months and the tenant neglected to pay the same after receipt of the notice and therefore the case would be governed by sec. 12 (3) (a) and in accordance with this finding passed a decree of eviction. 12 (3) (a) and in accordance with this finding passed a decree of eviction. ( 13 ) IT is satisfactorily established that under the terms of lease the tenant was liable to pay education cess. It is undoubtedly true that he can directly pay the same to the authorities concerned. But this obligation arose out of an agreement between the landlord and the tenant and it formed part of the lease meaning thereby that it was a condition on which the tenant can continue to occupy the premises as a tenant. It would therefore form an integral part of rent. Now the education cess is payable every year. In such circumstances a Division Bench of this High Court in Civil Revision Application No. 1344 of 1968 decided on 18th/19th October 1976 (XVIII G. L. R. 349) has held that the case would fall under sec. 12 (3) (b ). The Division Bench has in terms held that even in absence of a contract between the landlord and tenant as regards payment of education cess the education cess would form part of the rent payable so as to enable the Court to decide under sec. 12 (3) (a) that the said rent was not payable by month. That would be the exact position in this case. Here the tenant by the terms of lease has to pay the education cess and other Municipal taxes. The cess and other Municipal taxes are payable by the year. The tenant undertook the obligation to pay the same as part of his liability to pay and such payment would form integral part of rent and therefore it cannot be said that the rent was payable by the month. ( 14 ) MR. Divecha very fairly pointed out that the plaintiff has not demanded the education cess or other taxes in the notice or in the plaint and there was no prayer for the same. That is true. But even in such a situation the case would still not fall under sec. 12 (3) (a ). In SURESHCHANDRA BABULAL and ORS. V. SUMITRABEN CHIMANLAL and ORS. (Civil Revision Application No. 272 of 1973 decided by J. B. Mehta J. on 2-11-1976) it has been in terms held that even if there was no demand by the plaintiff that fact is hardly relevant. 12 (3) (a ). In SURESHCHANDRA BABULAL and ORS. V. SUMITRABEN CHIMANLAL and ORS. (Civil Revision Application No. 272 of 1973 decided by J. B. Mehta J. on 2-11-1976) it has been in terms held that even if there was no demand by the plaintiff that fact is hardly relevant. Once it is held that there is liability to pay the same the case would go out of sec. 12 (3) (a ). ( 15 ) THEREFORE the case herein would fall under sec. 12 (3) (b) The tenant has deposited all the arrears as stated by Mr. Divecha and he has qualified for the protection of the Rent Act. The only ground on which a decree of eviction is made against him is that it falls under sec. 12 (3) (a) but the case falls under clause (b) of sec. 12 (3) and the tenant has complied with the conditions. Therefore the decree for eviction passed by both the Courts will have to be set aside and the suit will have to be dismissed. ( 16 ) ACCORDINGLY the Civil Revision Application is allowed and the decree passed by the trial Court directing the defendant to hand over possession of the suit premises to the plaintiff and confirmed in appeal is set aside and the suit for possession is dismissed. Rule is made absolute with no order as to costs. Application allowed. .