Bishun Chandra Saxena v. Sushil Chandra Verma .

Dayal, J.:— This is a second appeal referred to a Bench by a learned Judge. It arises out of a suit for ejectment and recovery of arrears of rent.

2. The plaintiff-appellant is the landlord and the defendant-respondent is the tenant of certain premises which were purchased by the appellant on the 1st April 1954. The respondent paid rent to the appellant at the rate of Rs. 107/1/6 for the months of April to August 1954. He made no payment of rent for the subsequent months. In December 1954 the plaintiff gave a notice of demand purporting to be one in conformity with the provisions of Cl. (a) of sub-Sec. (1) of Sec. 3 of the U.P (Temporary) Control of Rent and Eviction Act (hereinafter called the Act) asking the respondent to pay the rent in arrears. The plaintiff, probably feeling the inadequacy of this notice, gave a second notice to the respondent on the 17th January 1955. In the second notice he not only requested the respondent to pay the rent of the last several months which was in arrears but also made inquiries from him about the actual payments in the past and about how the payment of rent at the rate of Rs. 107/1/6 per mensem was being made instead of at the assessed amount which was Rs. 150/-. The demand part of the notice was in these words:

“You are in arrears of rent for the last several months. I would very much appreciate if you please send the rent that is due.”

3. No response was made by the respondent to this notice. On the 18th February 1955 the plaintiff served a notice under Sec. 106 pi the Transfer of Property Act. This notice is quoted in full below:

“Dear Sir,

Whereas you are a tenant in my house No. 9, Hamilton Road, Allahabad, from month to month, the tenancy beginning from the 1st of every calendar month, and you have not paid the rent for the months of September, October, November and December 1954 and January 1955 and have failed to pay the same in spite of my notice of demand dated 14-12-54 in respect of arrears of rent for the months of September, October and November 1954 received by you on the same date and another notice of demand dated 17-1-55 which was also received by you on the same date, I do not wish you to continue as my tenant and hereby give you 30 days notice as required by law calling upon you to vacate the premises aforesaid. You are also called upon to pay up all the arrears of rent due against you. In event of non-compliance I shall be compelled to institute a suit against you for ejectment, and arrears of rent and also for damages for use and occupation at the rate of Rs. 2001/- p.m Please note further that if I am compelled to file a suit against you, you will also be liable for all costs that may be incurred in filing the suit.”

4. The respondent offered the rent in arrears on the 17th March 1955 to the appellant who refused to accept it and subsequently instituted the suit giving rise to this second appeal on the 15th April 1955. The respondent contested the suit, inter-alia on the grounds that the rent for over three months was not in arrears, that the notice dated the 17th January 1955 was not a valid notice under Cl. (a) of sub-Sec. (1) of Sec. 3 of the Act and that by the notice dated the 18th February 1955 the appellant had waived the notice dated the 17th January 1955. The trial court found against the respondent on all these points and decreed the suit for ejectment and arrears of rent with costs.

5. The respondent appealed and the learned Additional District Judge agreed with the finding about the rent being in arrears but disagreed with respect to the finding about the validity of the notice dated the 17th January 1955 and, therefore, dismissed the appeal against the decree for arrears of rent and allowed it with respect to the decree for ejectment. Taking into consideration that the appellant had not accepted the payment of rent on the 17th March 1955, he allowed the entire costs of the trial court to the respondent. It is against this decree that this second appeal was filed by the appellant.

6. The notice dated the 17th January 1955 was held to be invalid by the learned Additional District Judge for the reason that it did not indicate to the respondent that in case he did not pay the amount that was due against him as arrears of more than three months' rent he might be ejected. His season for the view that the notice must contain such an indication is, in his own words, as follows:—

“The U.P (Temporary) Control of Rent and Eviction Act by its very nature has been primarily framed to safeguard the interests of the tenants which, during the days of scarcity of accommodation, may be harassed by the landlords and may be unjustly ejected or against whom even unjust demand of rent might be made and the Act is thus mainly to prevent the eviction of tenants and to control the rent. One of the valuable rights given to the tenant is that without the permission of the District Magistrate he cannot be ejected except on certain grounds mentioned in Sec. 3(1) of the Act. If the landlord wants to take advantage of that provision of law to eject the tenant, he has to use such language in the notice that the tenant may be on guard and may know that in case he failed to comply with the law requiring him to pay the arrears of rent for a period of more than three months within a month of the notice of demand, he may be ejected.”

7. This view finds ostensible support from the case of Makund Lal Agarwal v. Matroomal 1958 A.L.J 139. wherein Mr. Justice Tandon observed at page 141 with respect to the contents of a notice of demand contemplated by Cl. (a) of sub-Sec. (1) of Sec. 3 of the Act as follows:—

“A notice of demand, as is very clear, is more than a mere request. It implies a categorical requisition to pay the arrears under pain of consequences flowing from non-payment. It will not be sufficient, as, however, was contended by the learned counsel for the appellant that the amount alone is categorically stated or a request is addressed. There must further be, as said earlier, a requisition categorically made that the amount which is due should be paid. If no such categorical requisition is made while the document may amount to a request for payment of some thing which is due and is payable but it does not, in my view, amount to a notice of demand which, as is very clear from the section, carried with it certain obligation and liabilities. In incorporating this provision, the Legislature clearly intended that the tenant should know that if he did not make the payment as demanded, he would be liable to be evicted. Any requisition which whether by any thing expressly said in it or by implication gave out a different intention, will, in my opinion not amount to a notice of demand required by Cl. (a) of Sec. 3.”

8. Mr. Justice Chaturvedi before whom this second appeal came for hearing was not inclined to agree with these observations and has therefore made the reference.

9. It cannot be gainsaid that a notice of demand must ask the tenant to make payment of the rent in arrears. If even such a request or demand is not made the notice cannot be deemed to be a notice of demand. The real point in dispute is whether the notice of demand contemplated by Cl. (1) of Sub-Sec. (1) of Sec. 3 of the Act must state that in case the tenant did not pay the arrears of rent within a month of the service of notice he would be liable for ejectment. It is contended for the respondent that the notice must make such a statement. The contention for the appellant naturally is that this provision of law does not require this fact to be mentioned in the notice and that therefore it is not necessary to state in the notice the legal position. Everybody is expected to know the law. Mentioning the legal effect of a certain conduct of the tenant does not improve the situation. The mere expression ‘notice of demand’ does not necessarily import that the notice must mention this fact. In fact Mr. Justice Tandon too did not hold what is now contended for the respondent. He simply held that if the alleged notice of demand expressly or impliedly indicated a different intention, that is an intention of the landlord not to evict the tenant in case of non-payment of rent, it would not amount to a notice contemplated by Cl. (a) of sub-Sec. (1) of Sec. 3 of the Act. The notice dated the 17th January 1955 contains nothing which should indicate such an intention of the landlord. The observation that the notice of demand implies a categorical requisition to pay the arrears under pain of consequences flowing from non-payment is not to be construed, in the context, as meaning that the notice must mention that in case of non-payment within a month the tenant will be liable to be sued for ejectment. It only emphasises the necessity of a clear requisition for payment of rent so that the tenant be aware that in case of non-payment of rent he makes himself liable to legal consequences.

10. It is true that the Act was passed for the benefit of tenants, especially with respect to the rent they would be liable to pay and with respect to the security of their occupying the premises so long as they continued to pay rent or to behave in the manner which the law expected from a tenant. The tenant is given protection in respect of rent and eviction. But at the same time he is not given protection if he behaves in a manner which is not expected from a tenant by the law. The law expects the tenant to pay rent regularly. Under the ordinary law the landlord can determine the tenancy by taking the steps laid down therein. The provision of Cl. (a) of sub-Sec. (1) of Sec. 3 of the Act just gives this protection to the tenant that if he happens to tall in arrears for three months he be given a warning about it and be asked definitely to pay the rent before the landlord should determine the tenancy and go to court to evict the tenant. If the tenant pays no heed to such a warning he must suffer the consequences which a tenant suffers under the ordinary law; the special protection given by the Act is removed; the difficulty in the way of the landlord to institute a suit for ejectment is also removed. The termination of tenancy and the consequent ejectment of the tenant are thereafter governed under the provisions of the ordinary law applicable between the landlord and tenant. We are of the view that the fact that the Act was enacted for the protection of tenants in certain matters should not be stretched to a point where a tenant be in a position to ignore completely the rights of a landlord even when the landlord does all that the law requires him to do. We are therefore of opinion that we cannot import in the simple expression ‘notice of demand’ requirement that the landlord should state what the law lays down that in case of the tenant not paying the arrears of rent within a month he would be liable to ejectment.

11. It is contended for the respondent that the notice dated the 17th January 1955 is not a notice of demand because it requires information about other matters as well, namely, about the actual payments made by the respondent and about the reasons for the payment of rent at an amount less than the assessed rent. An enquiry about these facts can only indicate the bona fides of the landlord but can hardly justify the tenant construing this notice to be no notice of demand, especially when there was nothing in the notice to indicate that the rent was demanded at a figure higher than the amount which the tenant had been paying and when the notice closed with a definite request for the payment of the rent to the landlord. The tenant ignored this notice altogether, and it is hardly fair for him to say that he did not even pay the usual rent he had been paying on account of the querries made by the landlord. It may just be mentioned that he even did not try to reply to the querries put to him. We therefore do not consider that the notice dated the 17th January 1955 is not a notice of demand.

12. The other contention for the respondent is that the appellant waived the notice dated the 17th January 1955 when he sent the notice dated the 18th February 1955. The latter notice clearly stated that on account of the non-payment of rent for the months of September 1954 to January 1955 in spite of the notice of demand dated the 14th December 1954 and the notice of demand dated the 17th January 1955, the landlord did not wish to continue the tenancy of the respondent. Stating this it gave the usual notice of thirty days for the vacating of the premises. The respondent was further called upon to pay tip all the arrears of rent due. Thereafter the notice said:

“In event of non-compliance I shall be compelled to institute a suit against you for ejectment, and arrears of rent and also for damages for use and occupation at the rate of Rs. 200/- p.m Please note further that if I am compelled to file a suit against you, you will also be liable for all costs that may be incurred in filing the suit.”

13. There is nothing in this notice to indicate that in case the respondent paid the arrears of rent the appellant would not terminate the tenancy and would be agreeable to let the respondent continue as his tenant. The appellant had clearly stated that he did not wish to have the respondent as his tenant on account of his earlier conduct. He asked the respondent to do two things. First he asked him to vacate the premises, and secondly to pay the arrears of rent. His statement that in the event of non-compliance he would be compelled to institute a suit for ejectment and arrears of rent and for damages cannot mean that in case there was compliance of only one requirement, namely, for the payment of rent, he would consider it to be a compliance of the other requirement also, that is the requirement for vacating the premises. What he meant by the concluding portion of his notice was that in case of non-compliance of the two requirements he would have to institute a suit praying for three reliefs.

14. In the absence of any clear and implied statement in the notice to the effect that in case of payment of rent the appellant will not terminate the tenancy but will continue to have the respondent as his tenant, it is not possible to hold that the appellant had waived the notice of the 17th January 1955. We do not read any such statement in the notice dated the 18th February 1955 and therefore do not take it to waive the notice dated the 17th January 1955.

15. In view of the above, we hold that the notice dated the 17th January 1955 was a valid notice under Cl. (a) of sub-Sec. (1) of Sec. 3 of the Act and that the decree of ejectment against the respondent passed by the trial, court was correct. We, therefore, allow this appeal with costs throughout, set aside the decree of the court below dismissing the suit for ejectment and decree the suit for ejectment as well. We may make it clear that the decree for arrears of rent stands. We direct the respondent to vacate the premises on or before the 31st October 1959.

16. Appeal allowed.