1. This is an appeal by the defendant against a judgment of affirmance. The facts as stated in the plaint are as follows:

The defendant had been a monthly tenant under the plaintiff at a monthly rent of Rs. 40/- payable according to English calendar month in respect of the ground-floor of premises No. 29-B, Satish Mukherjee Road, P.S Tollygunge, Calcutta described in the schedule A to the plaint hereinafter referred to as the suit premises. The plaintiff served an ejectment notice dated November 17, 1962 calling upon the defendant to vacate the suit premises on ground of default in payment of rent and also for own use and occupation by the plaintiff landlord. The defendant on receiving of the said notice promised to quit and vacate the suit premises and at last gave a notice by post-card dated June 30, 1963 stating that he would quit and vacate the suit premises on July 31, 1963. He also gave another notice informing the plaintiff that he would vacate the suit premises on July 31, 1963 and deliver vacant possession to the plaintiff or his representative. The defendant took a loan of Rs. 60/- from the plaintiff for giving effect to his notice. The defendant, however, failed to vacate the suit premises and thereupon the plaintiff served a notice on the defendant on August 9, 1963, informing the defendant to quit and vacate within three days from receipt of the said notice and also to pay damages from 1st August, 1963. The defendant in reply stated that the letter alleged to have been given by the defendant was a forged one which allegation the plaintiff in his letter written in reply repudiated. As the defendant failed to vacate, the plaintiff instituted the suit on August 29, 1963, praying for recovery of possession of the suit property on eviction of the defendant therefrom.

2. The suit was contested by the defendant who filed a written statement and it was stated therein that the suit was barred for want of legal and sufficient notice required under Section 13 of the West Bengal Premises Tenancy Act and also 106 of the Transfer of Property Act. The defendant denied the allegations of default as also of the plaintiff's requirement of the suit premises for his own use and occupation. The defendant also denied that he promised to vacate the premises as there was no occasion for the same since he was living in the suit premises with his family. The defendant further denied that he gave any notice as alleged and stated that all allegations in connection therewith were untrue. For all these reasons, the defendant submitted that the suit should be dismissed. On a trial on evidence, the learned Munsif held that the question of the plaintiff's requirement was not required to be considered as the defence against delivery of possession was struck out. It was further held that the plaintiff's notice was legal, valid and sufficient. The learned Munsif further found that the notices Exts. 6-C and 7 served by the defendant were signed by him and that he took the loan of Rs. 60/- as alleged. It was also found that the defendant was a defaulter in payment of rent since July, 1962 and so liable to be evicted. It was accordingly held that the plaintiff was entitled to a decree.

3. On appeal by the defendant, the Appellate Court was of opinion that after striking out of the defence against delivery of possession the suit was to proceed ex parte under ground (j) of Section 13(1) of the West Bengal Premises Tenancy Act, 1956. It was held that the notice of August 9, 1963, did not amount to waiver of the earlier notices given by the tenant and accordingly it cannot be said that the plaintiff consented to the continuation of the tenancy. It was accordingly held that the plaintiff was entitled to a decree and the appeal in the circumstances was dismissed.

4. Mr. Saktinath Mukherjee, learned Advocate for the defendant appellant contended that the notice to quit under ground (j) of Section 13(1) of the said Act can only be issued during the continuance of the tenancy. He referred to the judicial authorities in support of the proposition that the notice to quit is intended to determine a tenancy which is in existence. In Foa's “General Law of Landlord and Tenant” (Eighth Edition page 596. Article 945) it is stated:

“The doctrine of notice to quit applies only where the relationship existing between the parties as landlord and tenant.”

5. In Woodfall's “Landlord and Tenant” (Vol. I, 25th Edition page 924 Articlc 1980) it has been laid down:

“………… once a valid notice to quit has been served, the tenancy will automatically come to an end on the expiration of such notice, even though the party giving it has purported to waive or withdraw it. The parties may, by a new contract create a new tenancy which is what is sometimes meant by “waiving” a notice to quit, but the old tenancy no longer exists.”

6. The provision in ground (j) of Section 13(1) is intended to determine a tenancy by use of the words “to quit” which is always referred to in legal parlance as having the said import. As the plaintiff by his own notice terminated the tenancy, there was no valid tenancy in existence. Accordingly, the notice, by the defendant, even if it was accepted, could not determine a tenancy which had no existence at all. On the alleged notices in the suit the plaintiff is not entitled on the above position in law, to a decree.

7. Mr. Dhirendra Kumar Das, learned Advocate for the respondent has contended on the other hand that even after determination of the tenancy the tenant defendant continued to be a statutory tenant as contemplated under Section 2(h) of the Act. Such statutory tenancy was terminated by notice given by the defendant and accordingly there was no impediment on the landlord's obtaining a decree against the tenant. He relied on the decision in the case of Calcutta Credit Corpn. Ltd. v. Happy Homes Pvt. Ltd., AIR 1968 SC 471 in which it was held that a sub-tenant of a statutory tenant is not entitled to a protection under Section 13(2) of the West Bengal Rent Control Act, 1950. On the authority of this decision Mr. Das submitted that courts below were justified in decreeing the suit.

8. Mr. Mukherjee in reply submitted that the tenant is not entitled to terminate a statutory tenancy as such tenancy continues upto the date of the decree. He referred to the decision in Ganga Dutta v. Kartick Chandra Das, AIR 1961 SC 1067 in which it was held that after the acceptance of rent from the tenant by the landlord on determination of the contractual tenancy, in view of the provisions of the rent acts, will not afford ground for holding that the landlord has consented to a new contractual tenancy. As the notice contemplated under ground (j) is one for terminating a contractual tenancy, in absence of a contractual tenancy it could not be said that such tenancy was terminated by the notice given by the defendant and acceptance of such notice could not amount to restoration of contractual tenancy which stood determined by the landlord's notice.

9. The definition of tenant in cl. 2(h) of the Act is in the following terms:

“‘tenant’ means any person by whom or on whose account or behalf, the rent of any premises is, or but for a special contract would be, payable and includes any person continuing in possession after the termination of his tenancy or in the event of such person's death, such of his heirs as were ordinarily residing with him at the time of his death, but shall not include any person against whom any decree or order for eviction has been made by a Court of competent jurisdiction.”

10. The ground (j) in Section 13(1) is as follows:

“Where the tenant has given notice to quit, but has failed to deliver vacant possession of the premises to the landlord in accordance with such notice;”

11. The definition of ‘tenant’ thus means any person continuing in possession after the termination of his tenancy. In the case of a valid notice, the contractual tenancy is terminated and the possession by such person thereafter is not on the basis of contract but under provisions of the statute. This tenancy is described and accepted as a statutory tenancy and its incidents are governed obviously by statute. The incidents of such tenancy do not empower the tenant or landlord to terminate such tenancy as in the case of contractual tenancy and such tenancy is to continue till a decree or order for eviction is made by a court of competent jurisdiction on the basis of the determination of the contractual tenancy. The notice “to quit” which has always been accepted in legal parlance for determination of a contractual tenancy cannot be extended to a statutory tenancy in absence of any provision therefor as already noted when the contractual tenancy is non-existent.

12. Accordingly I am of opinion on the basis of the authorities noted above that the ground (j) relates to contractual tenancy and when such tenancy has been determined and statutory tenancy has come into existence, there is no further scope for determining such tenancy by the tenant by notice to quit though the parties may enforce their right under the contract which the impugned notice by the tenant and its acceptance may, it could be said, have brought into existence, though we are not concerned with the same in this appeal and no decision thereon is called for. The decision cited by Mr. Das was not concerned with 1956 Act which contains the definition of tenant as we have noted above. Accordingly in the present case the tenant's notice for vacating possession cannot be taken as notice under ground (j) of Section 13(1) of the Act.

13. The judgment under appeal which decrees the suit on the basis of tenant's notice cannot accordingly be sustained. The appeal accordingly is allowed though on a point not urged before the Appellate Court which being purely a point of law, the appellant was entitled in law to argue in this appeal.

14. The appeal is now remitted to the Lower Appellate Court for final disposal in accordance with law on the basis of the plaintiffs notice Ext. 1 on the grounds of default and own occupation by the plaintiff landlord mentioned therein. There will be no order for costs in the appeal.

15. Appeal allowed.