CHATURBHUJ SITARAM Vs. MANJIBAI HIRACHAND

JUDGEMENT

(1.) THIS appeal arises out of a suit filed by a landlord against a tenant for a decree in ejectment. The plaintiff is the owner of a shop on the western side of her house on nazul plot no. 459, sheet no. 25-B at Khamgoan. The defendants are the plaintiff's monthly tenants. The plaintiff applied for and obtained from the Rent Controller permission to serve a notice in ejectment upon the defendants under clause 13 of the C. P. and Berar Letting of Houses and Rent Control Order, 1949. On 21st July 1950 the plaintiff served a notice in ejectment on the defendants. By the notice, the plaintiff called upon the defendants to vacate and deliver possession by 22nd August 1950. After the notice was served the defendants by postal money order sent plaintiff rent for the period between 22nd July 1950 to 22nd October 1950. The rent was received by the plaintiff. The plaintiff then served another notice on the defendants calling on or about 24th February 1951 asking them to vacate the premises by 22nd March 1951. That notice was not preceded by permission in writing of the Rent Controller to serve the notice. The defendants having failed to vacate and deliver the premises occupied by them, the plaintiff filed Civil Suit No. 20s-A of 1951 in the Court of the Civil judge, Class II, Khamgoan, for a decree for possession against the defendants. The defendants, inter alia, contended that the plaintiff had waived the first notice by acceptance of rent for the period after the determination of the tenancy and that before serving the notice dated 24th February 1951, the plaintiff had not obtained permission in writing of the Rent Control or to serve the notice. The learned trial Judge negatived the contentions raised by the defendant and decreed the plaintiff's suit for possession. That decree was confirmed in appeal to the District Court at Khamgaon. The defendants have come to this Court in second appeal.

(2.) CLAUSE 13 of the C. P. and Berar Letting of Houses and Rent Control Order by the First sub-clause provides:

(3.) IT was urged by Mr. Deshpande that the institution of a suit without permission of the Rent] Controller attracts the penal provisions of the Act, but determination of the tenancy by notice served without the permission is nevertheless valid. We are unable to accept that contention. The Legislature has imposed a condition precedent to the service of a notice determining a tenancy, and if the condition precedent is not fulfilled, the tenancy cannot be regarded as determined. In our view, the plaintiff's suit was not maintainable.