D. S. ASWATHANARAYANA SETTY v. M. S. JAYARAM — 1990 DIGILAW 335 (KAR)

SWAMI, J. ( 1 ) THIS appeal by the defendant is preferred against the judgment and decree dated 30th January 1980 passed by the iind additional civil judge, Bangalore city in o. s. no. 120/1977. ( 2 ) THE respondents are the plaintiffs 1 and 2 and they are also the land lords of the premises bearing No. 195-196 (old No. 167-168) situated in Mysore road, Bangalore city. The appellant was the statutory tenant of the premises. The respondents filed h. r. c. No. 486/1967 in the court of the principal first munsiff, Bangalore city for eviction of the appellant tenant under sac. 21 (1) (a) and (h) of the Karnataka Rent Control Act, 1961 (hereinafter referred to as the 'act' ). The rent of the premises was Rs. 150/- per month. The principal first munsiff, Bangalore by the order dated 19-11-1969 (ex p1) passed an order of eviction. The same was confirmed by the district judge in h b. c. appeal No. 5/1970 on 6. 4. 1s72 (ex p2 ). There was a civil revision petition No. 1326/1972 filed by the appellant-defendant against the order of the district judge confirming the order of eviction passed by the principal first munsiff, Bangalore. This court dismissed the civil revision petition on 26-6-1973 and granted six months time to the appellant-defendant to vacate the schedule premises. Pursuant to the order of eviction, the respondents obtained the possession of the schedule premises on 3-7-1979. 2. 1. We may also mention here that after the order of eviction was confirmed by this court in c. r. p. No. 1326/72 on 26-3-1973 and on the expiry of the period of six months granted by this court for vacating, the defendant did not vacate the premises but he filed a civil suit O. S. No. 1/1974 in the court of the I munsiff, Bangalore on the ground that the plaintiff had entered into a fresh lease on 31-10-1973 leasing the premises to the defendant and obtained an ex-parte order of temporary injunction on 1-1-1974 restraining the plaintiffs from executing the order of eviction passed in h. r. c. 486/1967 and confirmed by this court in c. r. p. No. 1326/72. The defendant also filed an application in hrc. Mis. The defendant also filed an application in hrc. Mis. No. 1/1974 under order 21 rules 1 and 2 C. P. C. claimed that on account of execution of a fresh registered tease deed by the plaintiffs on 31-10-1973, the eviction order passed in h. r. c. No. 486/67 is fully satisfied and therefore, satisfaction of the decree be recorded. This h. r. c. mis. 1/1974 was transferred to the court of the civil judge, Bangalore and was numbered as h r. c. misc. 41/1975. In h r. c. misc. 41/75 also, an order of stay was obtained staying the execution of the eviction order passed in h. r. c. 486/67. 2. 2. We may also mention here that the plaintiffs, on coming to know that the defendant had filed O. S. No. 1/74 on the basis of the alleged registered lease deed dated 31-10-1973, they filed a criminal complaint in c. c. No. 1974/77 alleging that the lease deed set up by the defendant is a forged document. The plaintiffs also contested o. s. no. 1/1974 and-h. r c. Misc. 41/75. Ultimately, h. r c. Mis. 41/1975 was dismissed on 26-6-1979 on the ground that the lease deed dated 31-10-1973 set up by the defendant was not proved. The defendant being aggrieved by the said Order, preferred c. r. p. No. 1888/79 before this court, and the same was also dismissed on 30-7-1979. O. s. no. 1/1974 was also dismissed as the defendant herein who was the plaintiff in the suit did not lead any evidence therein. The order dismissing the suit was set aside in the appeal. After the appeal was allowed and the suit was remanded for fresh trial, the suit was again dismissed for non-prosecution. Thereafter, there was an appeal preferred which was also dismissed. 2. 3. Thus, O. S. No. 1/74 and h. r. c. mis. No. 41/1975 stood dismissed. Thereafter the plaintiffs continued the execution and obtained possession of the suit schedule premises as stated above on 3-7-1979. 2. 4. Even before obtaining the possession of the schedule premises pursuant to the order of eviction, the respondents filed o. s. no. 120/1977 on 14-2-1977 in the court of the civil judge, Bangalore city for mesne profits amounting to Rs. Thereafter the plaintiffs continued the execution and obtained possession of the suit schedule premises as stated above on 3-7-1979. 2. 4. Even before obtaining the possession of the schedule premises pursuant to the order of eviction, the respondents filed o. s. no. 120/1977 on 14-2-1977 in the court of the civil judge, Bangalore city for mesne profits amounting to Rs. 27250/- forthe period from 26-12-1973 to 25-1-1977 ; because according to the, respondents-plaintiffs, the period of six months granted by the high court in CRP No. 1326/1972 expired on 26-12-1973 and from that date the possession of the appellant-defendant became wrongful and as such he was liable to pay mesne profits and not the rent. ( 3 ) IT was the defence of the defendant-appellant that as per the definition of the expression "tenant" contained in Section 3 (r) of the Act, even after the termination of the tenancy which could be considered to have taken place only after passing an order of eviction, his continuing in possession of the premises was not unlawful inasmuch as he continued to be a tenant ; therefore he was not liable to pay the mesne profits ; that he was liable to pay the rent at the rate of Rs. 150/- per month and not the mesne profits. In this suit also the defendant set up the alleged fresh lease as set up by him in hrc misc. No. 41 of 1975. ( 4 ) THE trial court framed thefollowing four issues: 1. Whether the plaintiffs prove that defendant is in unlawful occupation of the suit premises from 26-12-1973? 2. If so, whether the plaintiffs have sustained loss of Rs. 1,000/- per month ? 3. Does defendant prove that the plaintiff executed lease deed dated 31-10-1973 as pleaded in paragraph-3 of the written statement ? 4. To what reliefs are the plaintiffs entitled ? ( 5 ) THE trial court on the basis ofthe evidence on record held that the possession of the defendant became wrongful from 26-12-1973 as on that date the time granted by the high court in CRP 1326 of 1972 to vacate the suit premises expired ; that pursuant to the order of eviction the appellant-defendant was liable to vacate the suit schedule premises on or after 26th December 1973. And his possession was lawful only upto 26-12 1973. And his possession was lawful only upto 26-12 1973. The trial court for coming to this conclusion relied upon a decision of the Supreme Court in Smt. Chander Kali Ball and others v Jagdish Sing Thakur and another reported in (AIR 1977 Supreme Court 2262 ). The trial court also found that the defendant was liable to pay the mesne profits at the rate of Rs. 750/- per month. However, it rejected the plea of the defendant that the plaintiffs had executed a fresh deed dated 31-10-1973 and held that the said lease deed was a forged one. Thus, it passed a decree for recovery of a sum of Rs. 27 ooo/- with interest thereon at 6% per annum from the date of the suit till the date of payment. ( 6 ) SRI Vijaya Shankar, learned counsel appearing for the appellant-defendantsubmits that the court below has failed to notice the difference between the definition of the expression 'tenant' occurring in the Madhya Pradesh rent and accommodation act and the one occurring in the act and consequently it has erred in applying the decision in Chander Kali Bail and others v Jagdish Dingh Thakur and another ( AIR 1977 SC 2262 ) that the definition of the expression 'tenant' in the act does not contain the words "but shall not include any person against whom any order or decree for eviction has been made" contained in the definition of the same expression in the madhyapradesh rent and accommodation act; that when the act itself states that even after the termination of the tenancy the person continuing in possession is also the tenant; it follows that possession of such a person is not wrongful and as such he is not liable to pay mesne profits and he is liable to pay only the rent as agreed. ( 7 ) ON the contrary, it is contendedon behalf of the respondents-plaintiffs that once the petition for eviction is filed under the Provisions of the Act, the relationship of landlord and tenant must be held to have been terminated or at any rate such relationship comes to an end once the decree for eviction is passed; that it would not be just and correct to construe the definition of the expression 'tenant' occurring in the act as enabling the person who has suffered a decree or order of eviction to escape from the liability to pay damages or mesne profits from the date of such decree or order; that if it is held that the person against whom the order of eviction is passed still continues to be a tenant then, in law, it becomes difficult or, it may even become impermissible to evict such a person in execution of the order of eviction because the relationship of landlord and tenant continues. Therefore, the definition of the expression 'tenant' occurring in the act should not be stretched to such an extent so as to continue him as a tenant even after the order df eviction passed. Reliance is placed on the decisions of the Supreme Court in Chander Kali Bail and others v Jagadish Singh Thakur and another ( AIR 1977 SC 2262 ), Balkan Sah and others v Gangadevi Nathanl and others (AIR 1964 Patna 214), Giridhar B. S. v P. V. Shetty (1985 (1) Karnataka law journal 105) and also Ludhlchem Agencies etc. V Ahmed R. V. Peer mohamad and another (AIR 1981 Supreme Court 1988 ). ( 8 ) HAVING regard to these contentions the points that arise for considerationare as follows: 1. Whether the appellant-defendant is liable to pay mesne profits, if so, from what date ?.- 2. If the answer to point No. 1 is in the affirmative whether the amount of mesne profits determined by the court below is correct ? 3. If the answer to the first point is in the negative to what amount the plaintiffs are entitled ? Point No. 1 ( 9 ) OUR answer to point No. 1 woulddepend upon the meaning and scope of the expression "tenant" as defined in the act. 3. If the answer to the first point is in the negative to what amount the plaintiffs are entitled ? Point No. 1 ( 9 ) OUR answer to point No. 1 woulddepend upon the meaning and scope of the expression "tenant" as defined in the act. At the outset we would make it clear that in this case we are not concerned with contractual tenant of the premises to which the Provisions of the act are not attracted. We are concerned with the tenant of the premises governed by the Act, in other words, a statutory tenant. The act defines the expression "tenant" thus : "tenant" means any person by whom or on whose account rent is payable for a premises and includes the surviving spouse or any son or daughter or father or mother of a deceased tenant who had been living with the tenant in the premises as a member of the tenant's family upto the death of the tenant and a person continuing in possession after the termination of the tenancy in his favour, but does not include a person placed in occupation of a premises by its tenant or a person to whom the collection of rents or fees in a public market, cart-stand or slaughter house or of rents for shops has been framed out or leased by a local authority. " From the underlined words it is clear that a person, whose tenancy is terminated, continuing in possession even afjer termination of his tenancy, also continues to be a tenant. But to what extent and for what purpose he is continued as a tenant will be considered a little later. At this stage, we will only examine when the contractual tenancy and a statutory tenancy stand terminated. The contractual tenancy is determined when any one of the events specified in clauses (a) to (h) of Section 111 of the Transfer Of Property Act takes place ; whereas in the case of a statutory tenancy governed by the Act, there is no question of termination of tenancy by issuance of a notice of termination or by efflux of time etc. , As the Provisions of Section 111 of the Transfer Of Property Act are not applicable to a statutory tenancy which is a creature of the act and. as such it is governed by the Provisions of the act. , As the Provisions of Section 111 of the Transfer Of Property Act are not applicable to a statutory tenancy which is a creature of the act and. as such it is governed by the Provisions of the act. In some cases, where the origin of the tenancy is under a contract and the leased premises is situated in the area to which the act applies and the premises is situated in the area specified in schedule I of the act and it is five years old from the date of construction of the building on the date of termination of contractual tenancy, or it is situated in the area specified in schedule II of the Act, the statutory tenancy commences under the act on the termination of the contractual tenancy. In other words, in such cases where the contractual tenancy terminates, the statutory tenancy under the act commences because the act gives protection from eviction except in the manner provided under the act. The relationship of landlord and tenant under the act continues until it is put an end to, in accordance with the Provisions contained in the act. Section 21 of the act provides, under what circumstances and on what grounds the landlord can secure an order of eviction of the tenant in occupation of the premises. Therefore, until an order of eviction as per the Provisions of the act is passed, the relationship of landlord and tenant continues. A mere fact that a petition for eviction is filed, it does not result in termination of the relationship of landlord and tenant under the act. The termination of the relationship of landlord and tenant can be held to have taken place only on the passing of an order of eviction. This conclusion of ours receives support from the decision of the Supreme Court in Audhlchem Agencies etc. V Ahmed R. V. Peer Mohammed and another (AIR 1981 S. C. 1998 ). That was a case in which one Smt. Saraswathi bai was the tenant governed by the Bombay rents hotel and lodging house rates control Act, 1947. She was also a contractual tenant. She allowed six others to occupy the premises. The landlord obtained an order of eviction against the tenant. That was a case in which one Smt. Saraswathi bai was the tenant governed by the Bombay rents hotel and lodging house rates control Act, 1947. She was also a contractual tenant. She allowed six others to occupy the premises. The landlord obtained an order of eviction against the tenant. Thereafter six persons filed six suits against the landlord for a declaration that they were lawful sub-tenants or licensees under the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947. In those suits the sole issue that was pressed for trial was whether the plaintiffs were entitled to the benefit of the Bombay Act as lawful sub-tenants er as deemed tenants or as protected licensees. The trial court held that they were not so protected and dismissed the suits. In the appeals, only'one point raised was whether the plaintiffs could be described as lawful sub-tenants or protected licensees. The appellate judge affirmed the finding of the trial court and held that the plaintiffs were inducted into the premises after 1960, therefore, they were not entitled to be regarded as lawful sub-tenants; and that they became the statutory tenants on the termination of the tenancy of Smt. Saraswathi bai. As such, the plaintiffs were licensees and after the decree for ejectment was passed against Smt. Saraswathi bai - the original tenant, they ceased to be entitled to any statutory protection. Accordingly, the appellate court dismissed the appeals. Thereafter the plaintiffs in the suit appears to have filed petitions under Article 226 of the Constitution and in that proceeding, the plaintiffs - petitioners - had approached the Supreme Court. The Supreme Court held as follows : "in our opinion, the petitioner is not entitled to the benefit claimed by him. An agreement for licence can subsist and continue to take effect only so long as the licensor continues to enjoy a right, title or interest in the premises. On the termination of his right, title or interest in the premises, the agreement ; for licence comes to an end. If the licensor is 'a tenant, the agreement for licence terminates with the tenancy. No tenant is ordinarily competent to grant a licence enduring beyond his tenancy. On the termination of the licensor's tenancy the licensee ceases to be a licensee. If the licensor is 'a tenant, the agreement for licence terminates with the tenancy. No tenant is ordinarily competent to grant a licence enduring beyond his tenancy. On the termination of the licensor's tenancy the licensee ceases to be a licensee. This loss of status is the point from which sub-section (2) of Section 14 begins to operate and in consequence of its operation, the erst-while licensee becomes a tenant of the landlord on the terms and conditions of the agreement. What have we here ? Saraswathibai ceased to be a tenant of any description long before February 1, 1973. The contractual tenancy came to an end when the notice to quit dated July 28, 1962 took effect and the statutory tenancy terminated when the decree for ejectment was passed thereafter. Before February 1, 1973 she had ceased to be a tenant. With that, the agreement for licence stood automatically terminated. In consequence, the petitioner cannot legitimately claim to be a licensee on February 1, 1973. " (emphasis supplied) ( 10 ) THUS the aforesaid decision laysdown that a statutory tenancy comes to an end on the passing of an order or a decree, as the case may be, for eviction of the tenant. The decree or order for eviction of a tenant also leads to another inevitable consequence that it snaps the relationship of landlord and tenant. Consequently but for the definition of the expression 'tenant' as contained in Section 3 (r) of the act taking into its fold the person continuing in possession of the premises even after the termination of the tenancy, the possession of such a person would have become wrongful making him ex-tenant liable for mesne profits. ( 11 ) SIMILARLY, in the instant case,the statutory tenancy would have come to an end on 19-11 -1969, the date on which the order of eviction was passed by the principal I munsiff, Bangalore, in case the said order was allowed to become final. However, the defendant went up in appeal and revision as provided under the act against the order of eviction. Therefore, ultimately, the order of eviction was confirmed on 26-6-1973 by this court in c. r. p. 1326/1972. Thus on 26-6-1973 the statutory tenancy of the defendant stood terminated. However, while dismissing the civil revision petition, this court granted six months time to the tenant for vacating the premises. Therefore, ultimately, the order of eviction was confirmed on 26-6-1973 by this court in c. r. p. 1326/1972. Thus on 26-6-1973 the statutory tenancy of the defendant stood terminated. However, while dismissing the civil revision petition, this court granted six months time to the tenant for vacating the premises. Of course, the fact that the court granted time for vacating the premises would and could not be construed as amounting to restoring the relationship of the landlord and tenant because it was only under the inherent power of this court, time was granted to vacate the premises. The possession of ex-tenant under the order of the court cannot be considered to be unlawful. Therefore, all that can be said is that the order granting time to vacate the premises even without taking the aid of Section 3 (r) of the act saves the possession from becoming wrongful ; but this does not mean and cannot be construed to mean that the relationship of landlord and tenant is restored or the possession of such a person is in his capacity as a tenant. 11. 1. The question for consideration is whether on the termination of the statutory tenancy, possession of the person whose tenancy is terminated becomes wrongful so as to make him liable for mesne profits. If the definition of the word 'tenant' had not taken into its fold a person continuing in possession even after the termination of the tenancy in his favour, there was no difficulty for holding that such possession or possession of such person, would become wrongful on the passing of an order of eviction ; but the definition of the word 'tenant' specifically takes into its fold a person who is continuing in possession after the termination of the tenancy in his favour, even though, such termination is brought about by a decree or order of eviction. Therefore, it is clear that though after the termination of the statutory tenancy by reason of passing of an order of eviction, the relationship of landlord and tenant ceases but the possession of such person who can be described as ex-tenant does not become wrongful or unlawful because it is protected by law as by legal fiction, his possession is deemed as that of a tenant by Section 3 (r) of the act. At the time when the act was enacted, the preponderance of legal opinion, as reflected in the various decisions of the high courts, was that it was necessary to terminate tha contractual tenancy before making an application under the state rent acts for obtaining an order of eviction against a tenant coming under rent act. Perhaps it was because of this the Act, as enacted in the year 1961, defined the word 'tenant' in such a way so as to include a person continuing in possession after the termination of the tenancy ,in his favour. Thus, what was in contemplation of the legislature was the continuation of the person in possession of the premises after the termination of the contractual tenancy in his favour. But the whole conception has been changed by reason of the decisions of the Supreme Court in V. Dhanapal Chettiar v Yesodai Ammal ( AIR 1979 SC 1745 ); and Ludhichem Agencies etc. V Ahmad R. V. Peer Mohammed and another ( AIR 1981 SC 1998 ). In Dhanpal Chettiar's case (AIR 1979 S. C. 1745) a bench of 7 Judges of the Supreme Court was constituted to resolve the cleavage of opinion between the various high courts in India as also between several decisions of the Supreme Court on the question as to whether in order to get a decree or order for eviction against a tenant under any state Rent Control Act, it is necessary to give a notice under Section 106 of the Transfer Of Property Act. The Supreme Court has held that in order to get a decree or order for eviction against a tenant under any state Rent Control Act, it is not necessary to give notice under Section 106 of the Transfer Of Property Act. Determination of a lease in accordance with the Transfer Of Property Act is unnecessary and a mere surplusage because the landlord cannot get eviction of the tenant even after such determination. The tenant continues to be so even thereafter. That being so, making out a case under the rent act for eviction of the tenant by itself is sufficient and it is not obligatory to found the proceeding on the basis of the determination of the lease by issue of notice in accordance with Section 106 of the Transfer Of Property Act. That being so, making out a case under the rent act for eviction of the tenant by itself is sufficient and it is not obligatory to found the proceeding on the basis of the determination of the lease by issue of notice in accordance with Section 106 of the Transfer Of Property Act. It has also been further held that: "it is not correct to say that s. 106 of the t. p. act merely providing for termination of a lease either by the lessor or the lessee by giving the requisite notice, is an extra-protection against eviction. 'the purpose of this provision is merely to terminate the contract which the overriding rent acts do not permit to be terminated. . . . . . . . . . . . . . . . . . . . . . . . It should be remembered, as we have said above, that the field of freedom of contract was encroached upon to a very large extent by the state rent acts. The encroachment was not entirely and wholly one-sided. Some encroachment was envisaged in the interest of the landlord also and on the part of the legislature not to completely ignore the helpless situation of many landlords who are also compared to some big tenants sometimes weaker Section of the society. " Thus dhanpal chettiar's case resolved the cleavage in the judicial opinion between the various high courts as to the necessity of giving a notice, under Section 106 of the Transfer Of Property Act, terminating the tenancy of the premises governed by the state Rent Control Act. In ludhichem agencies' case (AIR 1981 S. C. 1998) as already pointed out above, the Supreme Court has decided the question as to when the statutory tenancy can be held to have been terminated, and has held that the statutory tenancy stands terminated when the decree for ejecting is passed. Looked in this background, the definition of the word 'tenant' as contained in the act requires to be amended because it takes into its fold the person continuing in possession of the premises even after the order of eviction is passed against him. Once the order of eviction is passed, even in the case of statutory tenancy, the relationship of landlord and tenant comes to an end. Once the order of eviction is passed, even in the case of statutory tenancy, the relationship of landlord and tenant comes to an end. From the date of order or decree for eviction, the possession of such person (who can be described as ex-tenant) cannot be that of a tenant nor it can be considered as lawful but for the definition of the word 'tenant' as contained in Section 3 (r) of the act. This creates a serious anomoly and deprives the landlord of his legitimate right to claim mesne profits for the period from the date of decree or order for eviction from the person in possession against whom an order or decree for eviction is passed. In chander kali bail's case (AIR 1977 S. C. 2262) the Supreme Court was called upon to consider the definition of the word 'tenant' as contained in Madhya Pradesh accommodation control Act, 1961 (for short 'm. p. act' ). Section 2 (i) of the m. p. act defined the word 'tenant' as follows: " 'tenant* means a person by whom or on whose account or behalf the rent of any accommodation is, or, but, for a contract express or implied, would be payable for any accommodation and includes any person occupying the accommodation as a sub-tenant and also, any person continuing in possession after the termination of his tenancy whether before or after the commencement of this act; but shall not include any person against whom any order or decree for eviction has been made. " After quoting the aforesaid definition, the Supreme Court held thus : "on a plain reading of the definition; aforesaid, it is clear that a tenant even after the termination of his contractual tenancy does not become an unauthori sed occupant of the accommodation but remains a tenant. It has been pointed out by this court Damadilal v Pareshram (1976) supp. Scr 645 ( AIR 1976 SC 2219 ) that such a tenant is conveniently called a statutory tenant. Whether the expression aforesaid borrowed from the english law is quite opposite or not, but, what is certain is that a person continuing in possession of the accommodation even after the termination of his contractual tenancy is a tenant within the meaning of the act and on such termination his possession does not become wrongful, until and unless a decree for eviction is made. If he continues to be in possession even after the passing of the decree, he does so as a wrongful occupant of the accommodation. " ( 12 ) THE underlined words "but shallnot include any person against whom any order or decree for eviction has been made" are not found in Section 3 (r) of the act. It is these words which make all the difference. If these words were incorporated in the definition of the word 'tenant' in Section 3 (r) of the Act, the same would have made the possession of the person continuing in possession of the premises even after the decree or order for eviction wrongful. Therefore, the decision of the Supreme Court in Smt. Chander kali bail's case, which turns upon the words "but shall not include any person against whom any order or decree for eviction has been made" does not govern the case arising under or governed by, the act. As it is not now necessary to issue a notice in writing to terminate a contractual tenancy of the premises to which the Provisions of the rent act apply in the light of tha decision of the Supreme Court in dhanpal chettiar's case (A. I. R. 1979 S. C. 1745), we are of the view that it is just and necessary for the state legislature to add the words "but shafl not include any person against whom any order or decree for eviction has been passed" to the definition of the word 'tenant' under sec. 3 (r) of the act. When the statute was enacted in the year 1961, the state legislature never intended to give protection to the possession of a tenant against whom a decree or order for eviction has been passed and absolve him from the liability to pay mesne profits or damages during the period he continued to be in possession of the premises after the decree or order for eviction is passed. Such a consequence was never in the contemplation of the legislature. However, in the case of a statute which is clear and unambiguous, it will not be permissible to read it otherwise than what the plain meaning of the statute conveys, on the basis of the intention of the legislature. Such a consequence was never in the contemplation of the legislature. However, in the case of a statute which is clear and unambiguous, it will not be permissible to read it otherwise than what the plain meaning of the statute conveys, on the basis of the intention of the legislature. It becomes necessary to find out the intention of the legislature only when the statute is vague and unambiguous and it is not possible to give effect to it without finding out the intention of the legislature. In the instant case, the definition of the word 'tenant' as contained in Section 3 (r) of the act is clear and unambiguous and there is no scope for any doubt. Therefore, we are required to give full effect to it. We may also point out here that the absence of the words "but shall not include any person against whom any order or decree for eviction has been made" in the definition of the word 'tenant' in Section 3 (r) of the Act, is encouraging the persons against whom an order or decree for eviction is passed to try to continue in possession as long as possible on some pretext or the other as they are only liable to pay the amount equivalent to rent. This is causing great injustice. Therefore, it is necessary for the legislature to step in and remove this anamoiy. Some of the state rent acts are having such a provision. ( 13 ) IN Bulkam Sah v Ganga Devi (A. I. R. 1964 Patna, 214), it was held as follows: "even after the determination of the tenancy, a person continuing in possession can be regarded as 'tenant' as defined in sec, 2 (h) of the Bihar buildings (lease, rent and fvictidn) control 'act, 1s47. The position in law of defendants 5 to 7 was that of monthlytenants. They could not be evicted before a decree is passed under Section 11 of the said act till then, they continued to be tenants and therefore, they are liable to pay the contracted rents to the land. Plaintiff No. 2 will thus be entitled to get rent from def endam-5 at the rate of. They could not be evicted before a decree is passed under Section 11 of the said act till then, they continued to be tenants and therefore, they are liable to pay the contracted rents to the land. Plaintiff No. 2 will thus be entitled to get rent from def endam-5 at the rate of. Subsequent to the decree, they will be liable to pay damages to plaintiff-2 till they were dispossessed in execution of the decree for eviction passed by the trial court but the rates of those damages will be the same as those of the monthly rents as they will be still regarded as tenants according to Section 2 (h ). The damages for this period that is, from the date of the decree of the trial court till the date possession was taken from them through execution of the decree will have to be calculated in a separate proceedings on payment of eourt fee thereon by plaintiff-2. " Though in bulkan sah's case (A. I. R. 1964 Patna 214) the definition of tha word 'tenant' as contained in the Bihar rent act is not quoted, taut the same is found in Smt. Chapala debi v Rtkhtl Chandra Sen Gupta (A. I. R. 1964 Patna 395 ). The definition- of the word 'tenant' as quoted in Smt. Chapala debi's case is as follows ; " 'tenant' means any person by whom, or on whose account, rent is payable for a building and includes. I) a person continuing in possession after the termination of the tenancy in his favour. . . ," Under the common law, when a contractual tenancy is terminated, the relationship of landlord and tenant comes to an end and the possession of such person thereafter ceases to be that of a contractual tenant and he becomes liable not only for ejectment but also for payment of mesne profits from the date of termination of contractual tenancy. Similarly, if a statutory tenancy is put an end to, in accordance with the Provisions of the statute, he is liable to pay mesne profits so long as he continues to be in possession of the premises after the termination of statutory tenancy. We have already pointed out that in the case of statutory tenancy, termination of tenancy takes place on the passing of the order or decree for eviction. We have already pointed out that in the case of statutory tenancy, termination of tenancy takes place on the passing of the order or decree for eviction. Consequently, the relationship of landlord and tenant would cease to exist and the person in possession of the premises whose statutory tenancy is terminated is liable to pay mesne profits until he delivers actual possession to the landlord. However, the definition of the word 'tenant' as contained in Section 3 (r) of the act absolves the person in possession alter the termination of tenancy from his liability to pay mesne profits, and enables him to pay the rent as was baing paid during the subsistence of the tenancy. This provision contained in the definition of the word 'tenant' makes the possession of the premises by ihe ex-tenant sven after the termination of tenancy lawful. In the case of lawful possession, there is no liability to pay mesne profits. Such a person is required to pay what a person in lawful possession is required to pay. The ex-tenant has to continue to pay the amount equivalent to rent even after the termination of the tenancy, in the instant case, even after the order of eviction order is passed, till possession is delivered to the landlord. Therefore, after the order of eviction was passed on 19-11-1969, even though the defendant-appellant continued to be in possession of the premises because of the appeal and the revision petition filed by him and also the suit in which he obtained an order of injunction, his possession would be only lawful possession as it is made lawful by reason of the definition of the word 'tenant' occurring in Section 3 (r) of the act. At this stage, a division bench decision of this court in Gridhar B. S. v P. V. Shetty (1985 (1) Kar. L. J. 105) on which reliance was placed by the learned counsel for the respondents may also be adverted to : in that case the question that arose for consideration was as to whether, oh the expiry of the lease period, the tenant was liable to pay the rent. L. J. 105) on which reliance was placed by the learned counsel for the respondents may also be adverted to : in that case the question that arose for consideration was as to whether, oh the expiry of the lease period, the tenant was liable to pay the rent. It was held that notwithstanding the termination of tenancy, the person in possession of the premises would be a 'tenant' and as such he would be liable to pay the rent and exercise the right given to him under Section 14 or Section 43 of the act as his possession was not unlawful. The fact that under Section 31, one class of tenants were not liable to be evicted under the Provisions of the Act, did not take them out of the class of tenants for other purposes. The other rights, obligations and viabilities continued to operate, notwithstanding their immunity from eviction under part v of the act. It may be relevant to notice that, that was a case in which there was no order of eviction passed there was neither an order of eviction nor a decree for possession passed in the suit filed by the landlord in q. s. no. 762/1978. The proceedings in the suit were stayed by the Supreme Court awaiting the decision in c. r. p. No. 3482/81 pending in this court. Therefore, the only question that was considered in that case was as to whether the termination of contractual tenancy had the effect of depriving the tenant from taking advantage of the Provisions of Section 14 of the act. The distinction between a contractual tenancy and a statutory tenancy in respect of the premises to which the Provisions of the act apply,' in the matter of termination of tenancy and eviction of the tenant are well known and the same are already referred to in the preceding paragraphs. The distinction between the contractual tenancy and the statutory tenancy regarding termination of tenancy has been lost because even after the termination of contractual tenancy, the landlord would not be entitled to seek possession from the civil court unless ha obtains an order of eviction as per the Provisions contained in Section 21 of the act from the court on which jurisdiction is conferred under the act. Therefore, we do ndt see any relevancy of the decision in Giridhar v P. V. Shetty (1985 (1) Kar. Therefore, we do ndt see any relevancy of the decision in Giridhar v P. V. Shetty (1985 (1) Kar. L. J. 105) on the point with which we are concerned. ( 14 ) ' thus from the above conspectus,it is clear that the trial court is not justified in applying the decision in chander kal! Bail's case (A. I. R. 1977 S. C. 2262 ). Hence, point No. 1 is answered as follows: as the statutory tenancy stands terminated on the passing of the order of eviction under the act and as the person continuing in possession even after the termination of tenancy in his favour, in other words, even after the order of eviction is passed, is also deemed to be a tenant under Section 3 (r) of the Act, and as such provision is only, intended to make the possession of ex-tenant lawful, without undermining the effect of the order of eviction and without coming in the way of execution of the order of eviction and obtaining actual possession of the premises ; the person continuing in possession after the order of eviction is passed till he is actually dispossessed, will be liable to pay the amount equivalent to the rent which he was paying as a tenant before the order of eviction was passed and not 'mesne profits'. Point No. 2 ( 15 ) IN the light of the finding recorded on points Nos. 1, points No. 2 does not arise point No. 3 ( 16 ) IN view of the fact that point No. 1 is answered in the negative, the amount of mesne profits determined by the court below cannot at all be upheld because, in law, the appellant would be liable to pay only the amount equivalent to the rent. It is not in dispute in this case that the rent payable to the premises on the date ihe order of eviction was passed was Rs. 150/- per month. Therefore, the amount payable for the period from 26-11-1973 to 25-1-1977 would come to Rs. 5400/ -. The decree passed by the trial court in excess of Rs. 5400/- cannot be sustained. Point No. 3 is answered accordingly. ( 17 ) FOR the reasons stated above,the appeal is allowed in part. The judgment and decree of the court below are modified. There shall be a decree for a sum of Rs. 5400/ -. The decree passed by the trial court in excess of Rs. 5400/- cannot be sustained. Point No. 3 is answered accordingly. ( 17 ) FOR the reasons stated above,the appeal is allowed in part. The judgment and decree of the court below are modified. There shall be a decree for a sum of Rs. 5400/- with interest at the rate of 6% p. a. from the date of suit till the date of recovery. ( 18 ) IN the facts and circumstances of the case, there will be no order as to costs. Appeal partly allowed. --- *** --- .