KANTILAL ISHWERLAL SHAH Vs. MUKUNDRAI KESHAVLAL PARIKH DR

JUDGEMENT

(1.) This revision petition is filed by the original defendant (tenant) under sec. 29(2) of the Bombay Rents Hotel and Lodging House Rate Control Act 1947 (which will be hereinafter referred to as the Act) against the judgment and decree passed by the appellate Bench of the Small Causes Court at Ahmedabad in Civil Appeal No. 316 of 1963 The appellate Bench passed a decree for eviction and allowed the appeal on the ground that the defendant tenant has committed a breach of a term of the tenancy viz. using particular space ment for common passage by putting articles etc. thereon and for other purposes. Possession was sought on other grounds also. But both the Courts below found that those grounds were not established.

(2.) The trial Court in Civil Suit No. 2453 of 1960 against which the aforesaid appeal was filed held also held that this breach of the tenancy was established but according to it the landlords cannot get a decree for eviction on that ground in the absence of a notice given as contemplated by sec. 114-A of the Transfer of Property Act. Both the Courts below have found that the notice to quit was valid and legal and contractual tenancy was validly determined. The appellate Court found that sec. 114-A of the Transfer of Property Act cannot have any application as the landlords are entitled to possession as the contractual tenancy has been validly determined by a valid and legal notice to quit and the tenant having committed a breach of the other term of the tenancy he is not entitled to statutory protection under the Act.

(3.) Mr. B. R. Shah had at one stage of the arguments challenged the validity and legality of the notice. Ultimately when it was found that the period of lease was to start from 1st December 1953 and not from 1st January 1954 he gave up the contention which he had raised on the basis of the provisions of sec. 110 of the Transfer of Property Act. Furthermore in the instant case in suit notice as well as ill the plaint landlords had in terms stated that the tenancy commenced from the first of every month and admittedly the tenancy for the last several years was a monthly tenancy. This averment made in the plaint as well as in the notice was not challenged by the defendant-tenant in his reply. Ex. 49 to the suit notice. Ex. 34 and in the written statement. 0n the contrary in the reply Ex. 49 he had stated about the payment of rent for the period from 1-5-1962 to 31-5-1962 which supports also the landlords version that the tenancy commenced from the first of English month and ended on the expiry of that month. Mr. Shah has therefore rightly not challenged the validity and legality of that notice ultimately.