Raj Kishore Prasad, J.:— The petitioner has moved this Court, under Articles 220 and 227 of the Constitution for an appropriate writ quashing the order dated the 5th November, 1955, of the Additional Commissioner, and the order dated the 30th August 1955, of the Collector, passed in a proceeding under the. Bihar Buildings (Lease, Rent and Eviction) Control Act, 1947 (Bihar Act III of 1947), hereinafter referred to as “the Act”. The opposite party No. 1 has shewn cause, and filed a counter-affidavit.
2. The petitioner is the landlord of old holding No. 2B/1 and new holding No. 17, circle No. 22, situated on the Ashoka Raj Path, in Mahalla Muradpur in the town of Patna. Opposite party No. 1 took a portion of this holding on lease for a fixed period commencing from the 9th April, 1949, to the 30th January, 1954, under a registered ‘Sataua Pataua Kerayanama Patta’ dated the 15th June, 1949, on a monthly rental of Rs. 215/-. Out of this monthly rental of Rs. 215/-, a sum of Rs. 200/- was to be set off towards the loan of Rs. 10,000/-, which had been taken by the petitioner from opposite party No. 1, under the above lease. Out of Rs. 10,000/-, Rs. 8,000/- carried interest, and Rs. 2,000/- carried no interest. The parties, therefore, contracted that Rs. 200/- would be set off towards the principal and the interest every month, and, the balance Rs. 15/- would be paid by opposite party No. 1 on fee 9th of every month to the petitioner.
3. There was a further stipulation that on the 30th January, 1954, as the entire loan with interest would be satisfied, opposite party No. 1, on expiry of the above date, without any objection, shall vacate the house, and, give seer possession to the petitioner. There was also a stipulation, in the aforesaid lease, that opposite party No. 1 had no right, and, would not, in any case, sublet the building to anybody.
4. Opposite party No. 1 was carrying on his business in the leased portion of the building of the petitioner in the name of Nagpore Cloth House.
5. The term of the lease expired on the 30th January, 1954, and, opposite party No. 1 did not seek any extension of the time limited by the lease, under S. 12 of the Act. The petitioner, therefore, served a notice to quit on opposite party No. 1 on the 11th January, 1954. It was stated in the notice that the rent for November and December, 1954, had not been paid, and, therefore, if opposite party No. 1 did not vacate the house on the 31st January, 1954, he would be considered a trespasser, and liable for damages.
6. A reply to the aforesaid notice was sent by opposite party No. 1 on the 28th January, 1954, in which it was stated that he had been advised by his lawyer to remit Rs. 30/- to the petitioner by money order, and, it was further stated that the petitioner had executed three handnotes, namely, on the 3rd January, 1953, for Rs. 500/-, on the 17th March for Rs. 458/13/-, and on the 9th July, 1953, for Rs. 278/4/9, each carrying interest at 9 per cent, per mensem, and, therefore, the amount of these three handnotes would be adjusted towards rent from the month of February, 1954. Opposite party No. 1 sent Rs. 30/- by money order on the 28th January, 1954, but it was refused by the petitioner, as it was sent after the notice to quit was served by the petitioner.
7. Opposite party No. 1 on the 8th February, 1954, started a shop known as Nagpur Dresses in the same portion of the holding of the petitioner, which was in lease of opposite party No. 1, and shifted his original shop, known as Nagpur Gloth House, to another place, and, thereby, in contravention of the lease, according to the petitioner, sublet the building without his consent.
8. The petitioner therefore, on the 18th June, 1954, made an application under S. 11, Cl. (1), of the Act, before the Controller for eviction of opposite party No. 1 from the lease-hold on three grounds:
(1) That the opposite party had defaulted to pay the rent of the house from November 1953, to May, 1954;
(2) That he had sublet the buildings premises to one Dwarka Prasad; and
(3) That the opposite party, not) having got extension of the lease as required under S. 12(1) of the Act, was liable to be ejected on expiry of the period of tenancy.
9. The above application was contested by opposite party No. 1. He contended that he had not defaulted in the payment of rent as alleged, nor, had he sublet the building, nor, was he liable to be evicted under S. 11, Cl. (1), sub-cl. (b) of the Act, because his tenancy was a monthly tenancy, and he was a month to month tenant.
10. The Controller, on the 14th December, 1954, ordered eviction of opposite party No. 1 on the ground that he had sublet the premises to the firm known as Nagpur Dresses, which was a partnership concern with Dwarka Prasad. He, however, found that there had been no default in payment of rent. It does not appear from his order, which is Annexure ‘A’ to the affidavit, that he applied his mind to S. 11, 01. (1), sub-cl. (b), of the Act.
11. Opposite party No. 1 carried an appeal to the Collector, under S. 18(1), of the Act, and, the learned Collector, on the 30th of August, 1955 allowed the tenant's appeal on the only ground, that the charge of subletting had not been proved. He, however, did not apply his mind to the other two questions raised by the petitioner, one of which had been dealt with by the Controller.
12. The petitioner then moved the Commissioner in revision, and the learned Additional Commissioner, who heard the matter, on the 5th November, 1955, upheld the order of the Collector, and found that neither non-payment of rent, nor, any sub-letting, had been established by the petitioner. He also, however, did not apply his mind to the objection of the petitioner under S. 11 Cl. (1), sub-cl. (b), of the Act.
13. The petitioner has now moved this Court, and obtained the rule under consideration, and, asked for a writ on three grounds;
(1) that neither the Collector, nor, the Commissioner who reversed the order of the Controller, have considered the objection of the petitioner based on S. 11(1)(b) of the Act;
(2) that the Collector has not at all considered also the question of non-payment of rent; and
(3) that the learned Additional Commissioner has committed an error apparent on the face of the order in arriving at the finding that non-payment of rent and sub-letting by opposite party No. 1 had not been established.
14. The first ground taken by Mr. S.C Ghose, appearing for the petitioner, is, in my opinion, well founded, and, it must prevail. I have read the lease dated the 15th June, 1949, which is Annexure ‘D’ in the case. There is no doubt that, the lease was for a fixed period from the 9th April, 1949, to the 30th January, 1954, on a monthly rental of Rs. 215/-.
15. The question for determination is, whether a tenant in possession of a building, under such a lease, would be “a month to month tenant”, so as to come within the purview of S. 11, Cl. (1)(a) of the Act. If such a tenant is not a “month, to month tenant”, within the meaning of S. 11, Cl. (1), sub-cl. (a) of the Act, then certainly he would come within the purview of sub-cl. (b), of Cl. (1) of S. 11, of the Act.
16. “Month to month tenant” has been defined in S. 2, Cl. (e), of the Act, in the following terms:
“‘month to month tenant’ means a tenant holding a lease of a building from month to month or for an unspecified period;”
17. In the present case, on the lease itself, it cannot be said that the opposite party was holding the lease from month to month, or for an unspecified period, inasmuch as the lease definitely specifies a fixed period, and, mentions that the lease is for a fixed period of 57 months, from the 9th April, 1949 to the 30th January, 1954.
18. The mere fact that the rent was payable under the lease on a monthly basis every month, will not/alone convert the tenancy of the opposite party No. 1 into a monthly tenancy so as to make him a ‘month to month tenant’ within the meaning of S. 2(e). I, therefore, hold that a tenant, holding a lease for a fixed period of time, is not a “month to month tenant”, within the meaning of S. 2(e) of the Act, simply because the rent of the lease is to be paid on a monthly basis every month.
19. The next question, therefore, is that if opposite party No. 1 is not a “month, to month tenant”, is he liable to be ejected on the expiry of the period of the tenancy?
20. I may, at this very stage, reproduce S. 11, Cl. (1), sub-clis. (a) and (b), and s. 12, Cls. (1) and (2) of the Act. These sections are as follows:
“11.(1) Notwithstanding anything contained in any agreement or law to the contrary and subject to the provisions of S. 12, where a tenant is in possession of any building he shall not be liable to be evicted therefrom, whether in execution of a decree or otherwise, except—
(a) in the case of a month to month tenant, for non-payment of rent or breach of the conditions of the tenancy, or for sub-letting the building or any portion thereof without the consent of the landlord, or if he is an employee of the landlord occupying the building as an employee, on his ceasing to be in such employment; and
(b) in the case of any other tenant, on the expiry of the period of the tenancy, or for non-payment of rent, or for breach of the conditions of the tenancy:
Provided that….. ….. …..
“12.(1) If a tenant in possession of any building held on a lease for a limited time intends to extend the time limited by such lease by not less than six and not more than twelve months, he may give the landlord, at least one month before the expiry of the time limited by the lease a written notice of his intention to do so; and upon the delivery of such notice, the said time shall, subject to the provisions of S. 11, be deemed to have been extended for the period specified in the notice.
(2) Where the landlord to whom a notice has been given under sub-s. (1) wishes to object to the extension demanded by the tenant on one or more of the grounds mentioned in sub-s. (1) or sub-s. (3) of S. 11 or on the ground that the landlord has any other good and sufficient cause for determining the lease on the expiry of the time limited thereby he may, within fifteen days of the delivery to him of such notice, apply to the Controller in that behalf and if the Controller is satisfied that the landlord has made out case for determining the lease, the Controller shall pass an order disallowing the extension demanded by the tenant.”
21. From Ss. 11 and 12 of the Act, we find that the scheme of the Act is as follows:
Sub-clause (a) of clause (1) of S. 11 of the Act applies to a case of a month to month tenant, and, it provides the various grounds on which such a tenant is liable to be evicted from the building in his possession. Sub-clause (b), of clause (1), of S. 11, applies to the case of every other tenant, who is not covered by sub-clause (a) of clause (1) of S. 11 of the Act. Section 11, clause (1), sub-clause (b) provides that, in the case of any other tenant, that is, a tenant who is not covered by sub-clause (a) of clause (1) of S. 11 of the Act he is liable to be evicted from the building in his possession on three grounds: (1) on the expiry of the period of tenancy, or (2) for non-payment of rent, or (3) for breach of the conditions of the tenancy.
22. Section 11, clause (1) of the Act, however, provides that the provisions of that section are subject to the provisions of S. 12 of the Act. Section 12 provides for extension of time limited by lease. If a tenant, who is in possession of any building held on a lease for a limited time, intends to extend the time limited by such lease by not less than six and not more than twelve months, he may give the landlord, at least one month before the expiry of the time limited by the lease, a written notice of his intention to do so; and upon the delivery of such notice, the said time shall, subject to the provisions of S. 11, be deemed to have been extended for the period specified in the notice.
23. Section 12, clause (2) of the Act, provides for objections by the landlord if he does not wish that the extension demanded by the tenants should be granted.
24. In the present case, it is admitted by opposite party No. 1, that, S. 12, clause (1) of the Act has not been complied with by him. On non-compliance of the mandatory provisions of S. 12, clause (1) of the Act, therefore, the tenant, who holds a lease for a limited time, on the expiry of the period of his tenancy, makes himself liable to be evicted from the lease-hold, and brings himself within the mischief of S. 11 clause (1), sub-clause (b) of the Act.
25. In the present case, therefore, there is no doubt that opposite party No. 1 was liable to be evicted under S. 11, clause (1), sub-section (b), of the Act.
26. Mr. B.C De, who appeared for opposite party No. 1, however, contended that S. 11, clause (1), sub-clause (b) of the Act did not apply to his client inasmuch as his tenancy was a monthly tenancy, because his client was a month to month tenant. The line of reasoning of Mr. De is this: In the application for eviction made by the petitioner, arrears of rent are claimed from November, 1953 to May, 1954 and, therefore, Mr. De contended, a monthly tenancy, after the expiry of the period of lease, that is, from February to May, 1954, is admitted, and, in such circumstances, S. 11, clause (1), sub-clause (b) of the Act, would not apply to the present case.
27. In reply, Mr. S.C Ghose has submitted that the mere fact, that after service of the notice to quit the petitioner claimed arrears of rent from. February to May, 1954, for the period prior to the ejectment proceeding started on the 18th June, 1954, does not necessarily constitute a waiver of the notice to quit, nor, does it constitute a conclusive evidence of an intention on the part of the petitioner to treat the lease as subsisting.
28. In support of his above contention, Mr. Ghose has relied on Shah Wali Ahmad v. Mt. Hussaini Begum, 2 Pat. LJ 595 : (AIR 1917 Pat. 469) (A), and, Panchanan Ghose v. Haridas Banerjee, AIR 1954 Cal 460 (B).
29. In the Patna case, Chapman, J., agreed with Atkinson, J., and observed as follows:
“The institution of a suit in ejectment is an unequivocal declaration of an intention to determine the tenancy. The inclusion of a claim for rent in such a suit should not, in India, be held to be a waiver. It is in fact merely a claim for damages at the rate at which the rent was previously payable.”
Atkinson, J., also observed as follows:
“There is no authority to support the proposition that a mere claim for arrears of rent due prior to an ejectment proceeding and made after notice to quit was served would constitute a waiver of the notice to quit in point of law.”
30. In the Calcutta Case, the effect of Rent Control Law on the question of acceptance of rent was considered. Their Lordship observed that in the cases governed by the Rent Acts the acceptance of rent might be referable either to the fact that under the Rent Control Law in force the tenant has become a statutory tenant, or, to the landlord's Intention to treat the lease as subsisting.
31. In such a case, the onus is upon the tenant to prove waiver of the notice to quit. For the tenant to succeed, such acceptance must be shown, aliunde, to be attributable to the landlord's assenting to a new tenancy coming into existence. It was, therefore, held that where the rights of the parties were governed by the Rent Ordinance of 1946, whereby a single default exposed the tenant to a decree for ejectment, the mere acceptance of rent toy the landlord was not conclusive evidence of any waiver of the notice to quit.
32. I am in respectful agreement with the above observations of their Lordships.
33. In my opinion, therefore, the mere claim for rent, for the period after the expiry of the period of tenancy, after the notice to quit, will not amount to conclusive evidence of the intention of the landlord petitioner to renew, or revive, or continue the old tenancy, or create a new tenancy by waiver of the notice to quit, or by holding over, as the case may be.
34. The onus is on the tenant to prove that the I landlord agreed to the holding over of the tenancy, or to a new tenancy coming into existence after the expiry of the previous tenancy. In the absence of such an evidence, the mere claim of rent after the notice to quit for the period after the expiry of the term of the lease, though the tenant may be continuing in possession, would not necessarily establish the requisite consensus ad idem between the parties to renew the lease, or treat the lease as subsisting, or create a new tenancy coming into existence; and would not thus operate, either as waiver of the notice to quit under S. 113, or a renewal of the tenancy, or holding over, under Section 116 of the Transfer of Property Act, 1882.
35. In the present case, in the reply dated the 28th January, 1954, which was sent by opposite party No. 1 to the petitioner, there is no mention nor whisper even of any agreement creating a fresh tenancy from February, 1954, onwards. In the absence of any evidence, therefore, on this point, it cannot be said that the petitioner admitted opposite party No. 1 to be ‘a month to month tenant’ from February, 1954, onwards.
36. In my opinion, therefore, the contention of Mr. De, based on the claim, by the petitioner, of the rent from February to May, 1954, as creating a monthly tenancy, or as an admission by the petitioner that opposite party No. 1 was a month to month tenant, must be rejected.
37. For the reasons given above, I hold that opposite party No. 1 was liable to be evicted from the holding in question under S. 11(1)(b) of the Act.
38. The legal position, therefore, is that the effect of non-compliance by opposite party No. 1 of the mandatory provisions of S. 12(1) of the Act was that he made himself liable to be evicted under S. 11(1)(b) of the Act. In view of this legal position, it was incumbent on the Collector and the Additional Commissioner to do what S. 11(1)(b) of the Act enjoined and to make an order for ejectment of opposite party No. 1 as was done by the House Controller.
39. In effect, they declined to do what was by S. 11(1)(b) incumbent on them to do, and thereby, they refused to exercise the jurisdiction vested in them by law. It is, therefore, a case which calls for interference by this Court under its power of superintendence conferred by Article 227.
40. In view of my finding on the first ground urged by Mr. S.C Ghose, I do not think it is necessary to consider his other two objections in detail. But, I might say that the question of non-payment of rent, or the question of subletting, are mixed questions of fact and law, and, therefore, even if the learned Additional Commissioner has committed any error of law, or error of fact this Court will not interfere on an application under Article 226, unless the petitioner is able to show further that such an error of law, or of fact, is apparent on the face of the record, which the petitioner has failed to establish.
41. The learned Collector as well as the learned Additional Commissioner have both given reason for holding that subletting has not been established, after a consideration of the law points and the materials placed before them. In my opinion, therefore, even if they have committed purely an error of law in deciding this question of subletting, their finding would be a finding of fact on the materials before them which could not be upset on this writ application.
42. It is true the Collector has not considered the question of non-payment of rent, but the House Controller as well as the learned Additional Commissioner both have considered the question of non-payment of rent, and, both, have concurrently found, after a consideration of the materials before them, that non-payment of rent by the opposite party had not been established. Such a finding is also obviously a finding of fact which cannot be interfered with on the present writ application.
43. For the reasons given above, I would allow the application; make the rule absolute, quash the orders of the Collector, and, the Additional Commissioner, and restore the order of eviction dated the 14th December, 1954, of the Controller, passed under S. 11 of the Act, but for different reasons order eviction of opposite party No. 1 from the building in question under S. 11(1)(b) of the Act, and direct him to put the petitioner in possession of the building in question within ninety days from today.
44. The petitioner will be entitled to his costs; hearing fee Rs. 200.
45. Ramaswami, C.J:— I agree.
M.K.S
46. Application allowed.