1. The second appeal before me is by a tenant and raises two questions: (1) regarding the waiver of a notice for termination of tenancy and the consequent subsistence of the contractual tenancy; and (2) about the bona fide personal necessity of the landlord to get possession of the premises.
2. Kailash Prasad, plaintiff-respondent, brought a suit for ejectment against the defendant-tenant on the basis of personal necessity and default in payment of rent. The landlord had served a notice for the termination of the tenancy on 23-4-1967 intimating the tenant that the tenancy shall stand terminated from 31-5-1967, Apart from this it was averred by the landlord that the defendant-tenant had not paid him rent for the period 1-7-1967 to 31-1-1968 and he was therefore, liable to be evicted on this ground as well. The receipt of notice for termination of the tenancy was admitted by the defendant-tenant, but he contended that the notice had been waived by the landlord by his accepting the rent for the period subsequent to the notice for termination of tenancy. It was averred by him that he had paid the rent and he produced a receipt Ex. A/3 for the payment of rent. He further stated that he had remitted the rent to the landlord by money orders, but the landlord had declined to accept the same and for that he produced two money order coupons Ex. A/1 and Ex. A/2.
3. The learned Additional Munsif No, 2 Dholpur, before whom the suit was filed, framed the following issues :--
"1. Whether the plaintiff reasonably and bona fide requires the premises in suit for his personal use?
2. Whether the defendant has committed default in payment of rent? If so to what effect?
3. Whether the tenancy of the defendant has been validly terminated by notice dated 23-4-1967?
4. Whether the plaintiff has waived the notice dated 23-4-19672 If so to what effect?
5. Relief?"
4. The plaintiff examined himself as P. W. 1 and produced one Lakhanlal P. W. 2 in support of his case. The defendant examined himself and produced one Chhote Lal D. W. 2. Issue No. 1 was decided by the learned Munsif in favour of the plaintiff. Issue No. 2 also was decided in favour of the plaintiff. Issue No. 3 was decided against the defendant. Issue No. 4 was decided in favour of the defendant. In consequence the learned Munsif held that the suit for eviction must fail and accordingly he dismissed the suit.
5. Aggrieved by the judgment of the learned Additional Munsif the plaintiff went up in appeal to the Court of the learned Additional District Judge, Dholpur. The learned Additional District Judge reversed the judgment and decree of the first Court holding that there was no waiver of the notice for termination of the tenancy simply because the landlord had accepted rent subsequent to the giving of the notice. The question about the existence of bona fide personal necessity of the landlord for the suit premises was also raised, but the learned Judge declined to entertain it. He observed that the issue regarding the existence of bona fide personal necessity was decided against the defendant and against that decision the defendant had not filed any appeal. In the result, the learned Additional District Judge granted a decree for eviction of the premises in favour of the plaintiff and against the defendant.
6. It is in these circumstances that the defendant-tenant has brought this second appeal to this Court.
7. Learned counsel for the appellant has contended that the Court below was in serious error in coming to the conclusion that there was no waiver of the notice for termination of the tenancy by acceptance of the rent by the landlord subsequent to the giving of the notice. Learned counsel emphasised that in the receipt that was passed by the landlord he had clearly acknowledged that what he was accepting was rent and with the acceptance of rent the notice, according to learned counsel, was waived. Learned counsel relies on Section 113 of the Transfer of Property Act and has cited a number of cases to which reference will be made hereinafter in the course of the discussion that follows. Learned counsel also put weight on the circumstance that even in paragraph Nos. 6 and 7 of the plaint the plaintiff had averred that he had demanded arrears of rent from the defendant which he had not paid. Not only so, the plaintiff had sought eviction of the defendant inter alia on the ground of default in the payment of rent by the tenant. Learned counsel submitted that the parties were ad idem for the subsistence of the original contractual tenancy and the intention to continue the original contractual tenancy was clearly manifested by the acceptance of rent as such by the landlord and also by his adhering to the continuance of relation-ship of landlord and tenant between the parties when he not only claimed the arrears of rent in the plaint but also had sought the eviction of the tenant as a defaulter. Apart from this, learned counsel for the appellant submitted that since the judgment of the first Court was in favour of the defendant, there could be no occasion for him to question the finding of the trial Court on issue No. 2 except at the stage when the appeal before the learned Additional District Judge came up for hearing.
8. Learned counsel for the respondent has on the other hand, supported the judgment of the learned Additional District Judge. He further argued that it does not appear from the judgment of the learned Additional District Judge that the question of bona fide personal necessity was at all argued on behalf of the defendant before the learned Judge. Learned counsel maintained that in the absence of any affidavit by the counsel who argued the case before the learned Additional District Judge it should not be accepted that this contention was raised before the learned Additional District Judge. Learned counsel drew attention to the memo of appeal which, according to him made no mention of this ground being argued before the learned Judge though in the affidavit of the appellant filed much later he has stated so. Learned counsel for the respondent has invited my attention to a number of cases to reinforce his submission and I will be referring to the cases in the course of the discussion that follows.
9. The main question that arises for consideration here is whether the notice for termination of tenancy can, in the circumstances of the case, be deemed to have been waived by the landlord so that the original contractual tenancy continued and without the giving of a fresh notice for termination of that tenancy the suit for eviction was not maintainable. It will be convenient at this point to remind myself of the relevant statutory provisions.
10. Section 106 of the Transfer of Property Act, inter alia, provides that a lease of immoveable property for purposes other than agricultural or manufacturing shall be deemed to be a lease from month to month, terminable, on the part of either lessor or lessee by 15 days notice expiring with the end of a month of the tenancy. Every notice under this section must be in writing, signed by or on behalf of the person giving it and tendered or delivered either personally or to the party who is intended to be bound by it etc. According to Section 105 of the Transfer of Property Act money, share of crops, service or any other thing of value to be rendered by the lessee as consideration for the lease is called the rent though the term 'rent' has not been defined exhaustively. Section 111 of the Transfer of Property Act, inter alia, lays down that the lease of immovable property determines by efflux of the time limited thereby on the expiration of a notice to determine the lease, or to quit, or of intention to quit the property leased, duly given by one party to the other. Section 113 of the Transfer of Property Act around which considerable argument has centred may be read in full, including the two illustrations appended thereto:
"Section 113. Waiver of notice to quit. A notice given under Section 111. Clause (h), is waived, with the express or implied consent of the person to whom it is given, by any act on the part of the person giving it showing an intention to treat the lease as subsisting. Illustrations.
(a) A, the lessor, gives B, the lessee, notice to quit the property leased. The notice expires. B tenders and A accepts, rent which has become due in respect of the property since the expiration of the notice. The notice is waived.
(b) A. the lessor, gives B. the lessee, notice to quit the property leased. The notice expires, and B remains in possession. A gives to B as lessee a second notice to quit. The first notice is waived."
11. Since some of the cited oases were regarding the application of Section 116 of the Transfer of Property Ad) and learned counsel have drawn analogy in some respects regarding the observations in some of the cases even for the application of Section 113 of the Transfer of Property Act. I may read Section 116 too in full:--
"Section 116. Effect of holding over. If a lessee or under-lessee of property remains in possession thereof after the determination of the lease granted to the lessee, and the lessor or his legal representative accepts rent from the lessee or under-lessee. or otherwise assents to his continuing in possession, the lease is, in the absence of an agreement to the contrary, renewed from year to year, or from month to month, according to the purpose for which the property is leased, as specified in Section 106."
12. Learned counsel for the appellant has based his case on the tenor of Section 113 of the Transfer of Property Act and particularly Illustration (a) thereunder. Learned counsel submits in the circumstances that as in the Illustration (a) the landlord here gave notice to the tenant to quit the property and the notice had expired. The tenant tendered the rent and the landlord accepted the rent which had become due in respect of the property since the expiration of the notice. Consequently the notice was waived here also.
13. I will first take up the case of Kai Khushroo v. Bai Jerbai, AIR 1949 FC 124 on which reliance has been placed by learned counsel for the appellant. That was a case of a tenant holding over on the expiry of the lease by efflux of time. Some correspondence between the landlord and the tenant was placed on record and that went to show that the sub-tenants defendants Nos. 2 and 3 in the case were sending moneys to the plaintiff landlord by way of rents for the portions of the house in their possession. Defendant No. 1 was the tenant whose lease had expired. There was no ambiguity in the conduct of defendants Nos. 2 and 3 as to the character in which these payments were offered to be made They sent cheques on two occasions which were returned by the plaintiff. This went to show that at that time the plaintiff did not have the intention of accepting the rent from defendants Nos. 2 and 3 but subsequently in November the cheques were sent again. This time, however, the plaintiff did not return the cheques and sent them to his bankers. In the meantime a receiver had been appointed at the instance of a mortgagee of the property. This circumstance may have persuaded the plaintiff to change his mind, but since the cheques were encashed by the plaintiff their Lordships Inferred therefrom that the payments were accepted by way of rents and rents only. Later on however, the plaintiff intimated defendants Nos. 2 and 3 in the case that he had received the amount as compensation for illegal use and occupation of the premises without prejudice to his rights to elect them as trespassers. His subsequent intimation in their Lordships' view did not alter the position, that when the payments of cheques were accepted in November 1942 they were so accepted as rent. It was in this context that their Lordships held that with the acceptance of rent a new tenancy as contemplated by Section 116 of the Transfer of Property Act had come into being. Their Lordships had dealt with the essentials of holding over. Their Lordships observed:
"It is perfectly right that the tenancy which is created by the "holding over" of a lessee or under-lessee is new tenancy in law even though many of the terms of the old lease might be continued in it, by implication; and it cannot be disputed that to bring new tenancy into existence, there must be a bilateral act. What Section 116, T. P. Act, contemplates is that on one side there should be an offer of taking a renewed or fresh demise evidenced by the lessee's or sub-lessee's continuing in occupation of the property after his interest has ceased and on the other side there must be a definite assent to this continuance of possession by the landlord expressed by acceptance of rent or otherwise. It can scarcely be disputed that the assent of the landlord which is founded on acceptance of rent must be acceptance of rent as such and in clear recognition of the tenancy right asserted by the person who pays it. But while all this may be conceded, I do not think that these principles are really of any assistance to the appellant in the present case."
The words to be noticed in this passage are that the assent of the landlord which is founded on acceptance of rent must be an acceptance of rent as such and in clear recognition of the tenancy right asserted by the person who pays it.
14. The next paragraph in the judgment following the above passage deals with the impact of rent control legislation on the question of continuance of tenancy. Their Lordships referred to two English cases Davies v. Bristow. (19201 3 KB 428 and Morrison v. Jacobs, (1945) 1 KB 577 and in the light of these cases observed:
"With regard to the first part of the argument of the learned counsel for the appellant, it may be pointed out that in cases of tenancies relating to dwelling houses to which the Rent Restriction Acts apply the tenant may enjoy a statutory immunity from eviction even after the lease has expired. The landlord cannot eject him except on specified grounds mentioned in the Acts themselves. In such circumstances, acceptance of rent by the landlord from a statutory tenant, whose lease has already expired could not be regarded as evidence of a new agreement of tenancy and it would not 'be open to such a tenant to urge, by way of defence, in a suit for ejectment brought against him, under the provisions of Rent Restriction Act that by acceptance of rent a fresh tenancy was created which had to be determined by a fresh notice to quit."
15. In (1945) 1 KB 577 Scott Lord Justice said:
"The sole question before the Court is whether after the expiration of the contractual tenancy the mere fact of the landlord receiving rent for the dwelling house from the tenant affords any evidence that the landlord had entered on a new contractual tenancy to take the place of the tenancy which had expired. In my opinion, it does not, The true view is that the landlord takes the rent, knowing that the tenant is granted a statutory tenancy by the Rent Restrictions Acts and that his right to gain possession of his dwelling house depends entirely on his establishing that he brings himself within the conditions laid down by the Acts."
16. In Bhawanji v. Himatlal. AIR 1972 SC 819 the question as to what constitutes holding over was again considered. Their Lordships quoted with approval the above passage from Morri-son v. Jacobs, as also another passage from the same case. Their Lordships also expressed their agreement with the Federal Court case (AIR 1949 FC 124) cited already and pointed out that what Section 116 contemplates is that on one side there should foe an offer of taking a new lease evidenced by the lessee or sub-lessee remaining in possession, of the property after his term was over and on the other side there must he a definite consent, to the continuance of possession, by the landlord expressed by acceptance of rent Or otherwise. But mere acceptance of amounts equivalent to rent by a land-lord from a tenant in possession after a lease had been determined, either by efflux of time or by notice to quit, and who enjoys statutory immunity from eviction except on well defined grounds as in the Act, (Bombay Rents Hotel and Lodging House Rates (Control) Act. 1947) cannot be regarded as evidence of a new agreement of tenancy. Their Lordships added that if the tenant asserts that the landlord accepted the rent not as statutory tenant but only as legal rent indicating his assent to the tenant's continuing in possession, it is for the tenant to establish it. Where he fails to so establish it cannot be said that there was holding over by him.
17. In this last mentioned case their Lordships reaffirmed what was observed in Ganga Datt Murarka v. Kartik Chandra Das. AIR 1961 SC 1067. The relevant passage from the case just mentioned was as follows :--
"By the Rent Restriction Statutes at the material time, Statutory immunity was granted to the appellant against eviction, and acceptance of the amounts from him which were equivalent to rent after the contractual tenancy had expired or which were fixed as standard rent did not amount to acceptance of rent from a lessee within the meaning of Section 116, Transfer of Property Act. Failure to take action which was consequent upon a statutory prohibition imposed upon the Courts and not the result of any voluntary conduct on the part of the appellant did not aslo amount to "otherwise assenting to the lessee continuing in possession". Of course, there is no prohibition against a landlord entering into a fresh contract of tenancy with a tenant whose right of occupation is determined and who remains in occupation by virtue of the statutory immunity. Apart from an express contract, conduct of the parties may undoubtedly justify an inference that after determination of the contractual tenancy, the landlord had entered into a fresh contract with the tenant, but whether the conduct justifies such an inference must always depend upon the facts of each case. Occupation of premises by a tenant whose tenancy is determined is by virtue of the protection granted by the statute and not because of any right arising from the contract which is determined. The statute protects his possession so long as the conditions which justify a lessor in obtaining an order of eviction against him do not exist. Once the prohibition against the exercise of jurisdiction by the Court is removed, the right to obtain possession by the lessor under the ordinary law springs into action and the exercise of the lessor's right to evict the tenant will not unless the statute provides otherwise be conditioned."
18. The above passages to my mind show that the mere fact that rent was accepted by a landlord after the expiration of tenancy either by efflux of time or by determination of lease will not amount to creation of a new tenancy on account of the contractual relationship having been overlain by the protective provisions contained in the Rent Control Legislation. The position might be different if the Rent Control Legislation were not there. Section 113 was, no doubt, not examined directly in the above cases, but the observations made by their Lordships of the Supreme Court in AIR 1972 SC 819 would obviously cover not only a case of the expiry of the lease by efflux of time, but also a case of determination of a lease by a notice to quit when the protection of Rent Control Legislation would be claimable by the tenant. Section 113 also postulates that notice given under Section 111(h) is waived: (1) with the express or implied consent of the per-son to whom it is given; (2) by any act on the part of the person giving it show-ins an intention to treat the lease as subsisting. Therefore, it is obvious that the waiver of the notice is a bilateral act exhibiting ad idem to continue the old contractual tenancy in spite of the notice. If Rent Control Legislation were not there then by the tenant tendering the rent subsequent to the notice and the Landlord accepting it the notice is waived. But where on the expiry of a lease the tenant becomes a statutory tenant, the notice would not be waived by mere acceptance of the rent.
19. In Maharana Bhagwat Singhji of Udaipur v. Keshulal. 1963 Raj LW 27 = (AIR 1963 Rai 1131 Modi, J. had considered the scope of Section 113 of the Transfer of Property Act. It was held by his Lordship that Section 113 was inapplicable to statutory tenancies. Acceptance of rent or giving second notice to quit or execute a fresh rent note were acts by virtue of rent control statutes and not contractual acts. The observa-tions of his Lordship may be quoted:
" Section 113 of the Transfer of Property Act can hardly come into play in the case of a statutory tenant that is, a person who is entitled to remain in possession of the premises by virtue of the provisions of a Rent Control Act. A mere offer or acceptance of rent after the notice to quit had been given does not and cannot bring about a waiver of the notice. The tenant offers the rent not because he gives his consent to the creation of a new contractual tenancy or the subsistence of the old contractual tenancy but because he offers rent to fulfil his obligations under the provisions of the rent act and similarly, the land-lord accepts rent not because he shows thereby an intention to create a new tenancy or to treat the old contractual tenancy as 'subsisting' because prima facie he is entitled to accept the rent sq long as the tenant remains in possession. So also as to the giving of a second notice to quit and the tenant remaining in possession, the act of the tenant in continuing to remain in possession does not show his consent to the creation of a new tenancy or the 'subsistence' of the contractual tenancy, because he is en-titled to remain in possession under the (provisions of Rent Act; and, likewise the landlord by giving a second notice to quit does not thereby show any intention to create a new contractual tenancy or treat the original contractual tenancy as subsisting, inasmuch as there already subsists a statutory tenancy which he cannot get rid of except in one of the ways provided by the Rent Act. Even where a landlord while giving a second notice to quit, may in fact intend to Create a new contractual tenancy, no new contractual tenancy can arise, for the consent of the tenant to such creation is lacking, the tenant being in possession by virtue of the provisions of the rent act and not by any act of volition on his part."
20. I am in respectful agreement with these observations.
21. Now, I may briefly refer to the other cases cited by learned counsel on either side.
22. In Ram Dayal v. Jawala Prasad. AIR 1966 AH 623, the learned Judge observed:
"Once it is found that the rent for a period subsequent to the notice to quit was accepted by the plaintiff-landlord it is that circumstance alone which has to be taken into consideration for finding out whether by so accepting the rent the plaintiff intended that the relationship of landlord and tenant should subsist between the parties. That the defendant was unable to satisfy the Court by his evidence affirmatively that there was an agreement arrived at for continuing the tenancy, is immaterial. It is not the diligent prosecution of the suit which is material in judging whether the plaintiff as landlord intended to continue the tenancy of the defendant, what is material is the acceptance of rent by him for a period subsequent to the notice to quit."
23. The question as to what would be the effect of Rent Control Legislations on the question of acceptance of rent by the landlord after the expiration of the tenancy was not examined and therefore, in my view the observations are not of any help.
24. In Bapurao v. Woman. AIR 1963 Bom 179 the learned Judges were considering the question relating to an agricultural tenancy. This case too is of no help for the consideration of the question in hand.
25. In Chaturbhui v. Manjibal AIR 1959 Bom 292 the landlord had obtained the permission of the Rent Controller to serve a notice of ejectment upon the tenants under clause 13 of the C. P. and Berar Letting of Houses and Rent Control Order, 1949. Thereafter the landlord accepted rent which was sent to him by money order. Later on the landlord served another notice to quit to the tenant, but this time without the permission of the Rent Controller. Their Lordships were considering whether without the second notice with permission of the Controller the suit was maintainable. As regards the first notice they held that since rent was accepted by the landlord the notice will be deemed to have been waived. The judgment was by J. C. Shah. J. as he then was, In Ganga Datt Murarka's case. AIR 1961 SC 1067, the observations were from the judgment delivered by Shah, J. as he then was in the Supreme Court. In the Supreme Court case his Lordship pointed out that whether the conduct justifies an inference about the creation of fresh tenancy would depend upon the facts of each case. His Lordship added that occupation of premises by a tenant whose tenancy is determined is by virtue of the protection granted by the statute and not because of any right arising from the contract which is determined. The statute protects his possession so long as the conditions which justify a lessor in obtaining an order of eviction against him do not exist. Once the prohibition against the exercise of jurisdiction by the Court is removed the right to obtain possession by the lessor under the ordinary law springs into action and the exercise of the lessor's right to evict the tenant will not unless the statute provides otherwise be conditioned. Therefore, as long as the restrictions under the Rent Control Act continue the right of the landlord to evict the tenant has not sprung into action and lies under the effect of the brake put by the Rent Control Legislation.
26. In Tayabali v. Ahsan & Co.. AIR 1971 SC 102 cited by learned counsel for the appellant, the suit premises were let out to the tenant on monthly rent on 13-6-1956. The landlord gave notice to the tenant that as he was in arrears of rent his tenancy was being terminated. Further the tenant was called upon to make payment of the arrears. The tenant, however did not vacate the premises and a second notice was given by the landlord on 18-10-1957 calling upon him to deliver vacant possession of the premises. In the second notice a fresh ground was mentioned for getting the premises vacated and it was that the premises were required for the personal use and occupation of the landlord. What was noteworthy in the case was that prior to the despatch of the second notice the landlord had been paid and he had received the amount of arrears of rent which were said to be due in the first notice. On 30-10-1957 the tenant made a tender by means of a cheque of the full amount of arrears then due but the cheque was returned by the landlord. Regarding the first notice their Lordships observed that the same had been waived and the landlord had treated the tenancy as subsisting Paragraph 5 of their Lordships' judgment shows that their Lordships were relying on Illustration (b) of Section 113 of the Transfer of Property Act. It was argued before their Lordships that where a tenancy is determined by a notice to quit it is not revived by anything short of a new tenancy and in order to create a new tenancy there must be an express or implied agreement to that effect and further that a subsequent notice to quit is of no effect unless, with other circumstances, it is the basis for inferring an intention to create a new tenancy after the expiration of the first. Their Lordships did not decide the question, observing that for the purposes of the present case it was wholly unnecessary, whether for bringing about a waiver under Section 113 of the Transfer of Property Act a new tenancy by an express or implied agreement must come into existence. Their Lordships, however, added that all that need be observed is that Section 113 in terms does not appear to indicate any such requirement and all that has to be seen is whether any act has been proved on the part of the appellant in the case which went to show an intention to treat the lease as subsisting, provided there is an express or implied consent of the person to whom the notice is given. This case, in my humble view, is distinguishable. I am unable to find that their Lordships really intended to depart from what has been said in the earlier cases.
27. I may now refer to the relevant provisions of the Rajasthan Premises (Control of Rent and Eviction) Act, 1950.
28. The term 'tenant' has been defined in Section 3 (vii) to mean the person by whom the rent is. or but for a contract express or implied would be, payable for any premises and includes any person holding or occupying the premises as a sub-tenant, or any person continuing in possession after the termination of a tenancy in his favour otherwise than under the provisions of the Act.
29. Section 5 of the Act lays down that the rent payable for any premises shall, subject to other provisions of the Act be ordinarily such, as may be agreed upon between the landlord and the tenant.
30. In the light of the meaning given to these terms Section 13 of the Act may be considered. The section begins with a non-obstante clause. It is laid down that notwithstanding anything contained in any law or contract, no Court shall pass any decree, or make any order, in favour of a landlord, whether in execution of a decree or otherwise, evicting the tenant so long as he is ready and willing to pay rent thereof to the full extent allowable by this Act, unless it is satisfied. Then follow the various grounds on which the landlord can secure eviction of the tenant. This section, therefore, clearly overrides the general provisions governing the relationship between a landlord and ,a tenant to the extent provision is made in this section. Here the term 'tenant' is obviously used in a wider sense to include also a person who is continuing in possession after the termination of his tenancy and on account of the protective provisions thereunder. Now, the condition laid down for the enjoyment of the protection is the payment of rent to the full extent allowable by the Act. Therefore, calling the payment of recompense for the continued use and occupation of the premises after the termination of the contractual tenancy will not affect the character of such payment, because the section itself characterises payment even by a statutory tenant as rent. Therefore, it cannot be argued with any show of reason that merely because the plaintiff landlord in this case had accepted the payment giving it the label of rent it means the subsistence of the tenancy on account of the waiver of the notice of the termination of the tenancy as claimed.
31. Now, I may look to the other circumstances pointed out by learned counsel with a view to seeing their overall effect, whether it will establish ad idem on the part of both the parties to continue the old contractual tenancy in spite of the notice of termination of tenancy. The rent receipt relied on is Ex. A/3. This is a printed receipt given from out of a receipt -book. The number of the book is given as 3 and the number of receipt is 18. It is dated 3-7-1967. In the first line the words printed are ^^uke ekfyd edku** In the second line the words printed are ^^uke fdjk;snkj** Against the first line the name of Kailash Prasad is mentioned in hand and in the second line the name of the tenant is mentioned in hand. The third line is about the house or the shop and also contains a writing about the rate of rent. Then it is mentioned that Rs. 7/-
as rent for the month of June was being received. The printed receipt seems to have been issued as hithertofore and from that alone it cannot be inferred that the landlord had manifested the intention of continuing the old tenancy.
Then I may deal with paragraphs 6 and 7 of the plaint on which stress was laid. They were as follows:--
6--‘‘यह कि प्रतिवादी पर । ओसाई सन् 1967 से 31।1।68 तक का किरिाया भी चढ़ाहुआ है इस तरह प्रतिवादी ने 6 माह से ऊपर का किराया भी चढ़ारखा है । और वह काबिल बेदखली है । 7--यह कि वादी प्रतिवादी से कथित समय का किराया 49-00 उनचास रूपया पाने का मुश्तहक है जिसका भी वह दावेदार है ।’’ Learned counsel argued that the landlord had sought to evict the tenant on account of the non-payment of rent for the period subsequent to the notice and this clearly implies that the land-lord has treated the defendant as his tenant all along. Now so far as the averments in the plaint are concerned, they are with a view to getting the relief of ejectment. Reading the plaint as a whole it cannot be legitimately infer-red that the plaintiff wanted to put an end to the notice of termination of tenancy. According to the provisions of. section 13, which have already been read, the condition for the enjoyment of protection by the tenant against his eviction is that he is ready and willing to pay the rent to the full extent allowable by the Act. The term 'tenant', as I have already observed, is used both for the tenant under the general law as well as a statutory tenant who is not such a tenant under any contract, but is treated so by the operation of law. What such statutory tenant Pays is also characterised as rent. My first impression on reading Sub-section (4) of Section 13 was that perhaps the legislature was keeping a distinction between the payment of rent and the payment of an amount calculated at the rate of rent payable by a tenant but reading the section as a whole I am satisfied that even the periodic payments that the tenant including the statutory tenant has to make for continuing to enjoy the immunity from eviction has also been characterised as rent.
32. That being so, I am unable to accept the argument that by mere acceptance of rent by the plaintiff land" lord from the defendant-appellant after the expiry of the notice, the notice was withdrawn and the contractual tenancy consequently continued. What really continued was the statutory protection on fulfilment of the condition about the payment of rent. The learned Additional District, Judge was therefore, right in reversing the judgment of the learned Munsif.
33. Turning now to the second question about there being bona fide personal necessity for the landlord to get the premises vacated I may say at the outset that the learned Additional District Judge was in error in not dealing with the question. He was not justified in declining to consider the question on the ground that the defendant had not filed any appeal. No appeal could have been filed by the defendant when the suit was dismissed and it was only in the course of the arguments that the defendant could challenge the findings in the judgment of the trial court that were against him.
Learned counsel for the respondent submitted that even so there is nothing in the judgment to indicate that this question was agitated by the defendant in the court of the learned Additional District Judge. Learned counsel invites attention to the memo of appeal in the second appeal. He argues that in the memo of appeal though the challenge has been made against the judgment of the learned Additional District Judge, but that has proceeded entirely on a wrong premise, for example in ground No. 6 the defendant has said that the learned lower court erred in holding that the plaintiff bona fide and reasonably required the premises. Then the same thing has been repeated in the grounds following.
34. It is true, learned counsel for the appellant, in the memo of appeal has challenged the conclusion of the lower court regarding the existence of bona fide and reasonable necessity for the landlord to have the premises. It has however, to be noted that grounds Nos. 6 and 7 follow ground No. 5 wherein it has been said that the lower court was wrong in saying that the defendant-appellant could not support the decree on other grounds decided against him without filing an appeal. In paras Nos. 6 and 7 perhaps the defendant-appellant wanted to reach the judgment of the trial court, the expression used in paras Nos. 6 and 7 being 'lower court'.
Apart from this an affidavit has been filed by the appellant that it was sought to be argued by his learned counsel before the learned Additional District Judge that the finding about the existence of personal necessity was erroneous. Learned counsel for the respondent raised a point that an affidavit by the defendant-appellant was not sufficient, but the affidavit should have been of the counsel who had argued the case in the trial court. He referred me to bank of Bihar v. Mahabir Lal, AIR (1964 SC 377.
35. It Is true, normally it is the word of the counsel that should be the basis for holding whether any particular contention was or was not raised before the lower court when the judgment of the court does not throw light on that (point or recital made therein itself is sought to be challenged. Be that as it may, in the present case ground No. 5 is quite clear and that accords with what has been said in the judgment. The learned counsel for the appellant could very well have meant to challenge the findings of the trial court regarding the existence of bona fide personal necessity for the landlord to have his premises vacated.
I was then confronted with the question whether the case be remanded for a rehearing of the appeal on this point. Looking, however, to the petty nature of the case, it concerns premises bringing a rent of Rs. 7/- per month. I was not inclined to remand the case and both the learned counsel submitted that the evidence be gone into here.
Accordingly I was taken through the statements of the witnesses. On the side of the plaintiff there were two witnesses. P. W. 1 was the plaintiff Kailash Prasad. He stated that he was a Clerk in the Punjab National Bank and had been transferred to Bari which was his home town and he needed the premises for his residence at Bari. P. W. 2 Lakhanlal was not relevant for the purpose. He was the postman who had taken a notice to the defendant which was refused. In rebuttal the defendant Kailash examined himself as D. W. 1. and produced D. W. 2 Chhotelal. The defendant stated that the plaintiff had let out two apartments in the outer part of the house to the Fisheries Department and during the pendency of the present suit portion of the premises in possession of one Ram Prasad had been vacated and further the defendant had let in one Kailash Bhatt as a tenant in one of the Kothis. D. W. 2 Chhotelal stated that two rooms in the house are vacant and the plaintiff was in possession of the three apartments vacated by Ram Prasad. Learned counsel for the appellant emphasised that the landlord was motivated to increase the rent. The rent of the portion in the occupation of the defendant was to start with. Rs. 3/-which was later on increased to Rs. 5/-per month and then to Rs. 7/- per month.
Then it was submitted that the plaintiff came in the possession of about 8 rooms in the Haveli and there was thus no necessity for him to have the portion in possession of the defendant vacated. It was in the plaintiff's statement that his brother Ganesh also wanted to live in this house for starting a new business there in the town Bari, but Ganesh had not appeared as ,a witness. Learned counsel pointed out that there were only 5 members of the plaintiff's family i. e. the plaintiff and his wife and his 3 children. It was not disputed that Ganesh was joint with the plaintiff. From the judgment of the learned Munsif it appears that the number of rooms with the plaintiff were only 6 and not 8, as it was not clear from the evidence of the parties which the other two rooms were.
36. One room was on the ground floor. 4 rooms on the first floor and then there was one room in the second floor. For appreciating the location of these rooms I was referred to a map at page 31/4D of the record. This appears to be a rough map in respect of all the 3 storeys. The Haveli appears to be a big one, but it is the plaintiff's case that he has got only one-fourth share in the Haveli. This has not been disputed. The portion belonging to the plaintiff is marked red in the plaint. In the ground floor there is only one 'Tibara' which is in the occupation of the plaintiff. Likewise, in the second floor there is only one room which is in the occupation of the plaintiff. The most of the apartments are situate on the first floor.
The portion marked EFGHIJKL is said to be in the possession of the plaintiff. It appears from the map that in this portion there is one 'Kotha' and 'Tibara' on the western side and one 'Tibara', one 'Kotha' and one 'Sufa' i. e. a closed room on the eastern side. The apartments in the occupation of the defendant are marked vellow. They consist of one 'Tibara'. 2 'Sufas' i. e. closed rooms, and 3 'Kothas'. The portion occupied by the defendant comes on the southern side of the house. It does appear that the living rooms or 'Kothas' are on the first floor. The latrine at point 'L' is also on the first floor. The ground floor 'Kotha' cannot conveniently be used as a living room by the members of the plaintiffs family. He has stated that that 'Kotha' is being used for storing goods. There are a number of 'Kothas' on the ground floor near the 'Kotha' in occupation of the plaintiff and I am told that they are not being used by anyone for living. The 'Kotha' on the second floor too might be used occasionally in the hot season, but not for most part of the day. The members of the plaintiff's family in the circumstances will have to live on the first floor. These 'Kothas' or rooms are not shown to have any windows and it seems that they are like 'Kothas' in old Havelis, which are generally of small dimensions. The plaintiff is a Clerk in a Bank with five members in all even if we were to exclude his brother and his family. Therefore, the need of the plaintiff for the apartments in occupation of the defendant cannot be said to be unreasonable.
37. Now, as regards the alleged motive for enhancement of the rent it is enough to say that the plaintiff's cross-examination has been scanty and it has not been suggested as to on what occasions he demanded of the defendant to increase the rent. Only one general question was put that he wanted to increase the rent and this was denied by the plaintiff. In the circumstances there as no sufficient reason for taking a view different from that taken by the learned Munsif.
38. The appeal has thus no force end it is hereby dismissed, but the parties are left to bear their own costs. Four months time is allowed to the appellant to vacate the premises.
39. Learned counsel for the appellant orally prayed for grant of leave for appeal under Section 18 obf the Rajasthan High Court Ordinance, 1949. In view of the petty nature of the case the leave is refused.
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