D N COOPER Vs. SHIAVAX COWASJI CAMBATA

JUDGEMENT

(1.) THIS is an appeal from the judgment of Mr. Justice Desai, and the question that arises for determination is whether the plaintiffs who are the landlords are entitled to eject their tenants, the defendants. The defendants were the monthly tenants of the plaintiffs and on July 23, 1947, they sublet their tenement. The plaintiffs gave a notice to the defendants terminating the tenancy.

(2.) THE first contention that has been raised by Mr. Parpia on behalf of the tenants is that the notice to terminate was not a valid notice inasmuch as only a month's notice was given, whereas the agreement between the parties required that the notice should be of two months' duration. THE agreement between the parties provides that the lessors shall let to the lessees the tenement in question for their use and occupation on a monthly tenancy, and then states the rent which has got to be paid. Clause 9 of the lease provides that either party desiring to terminate the tenancy at or after the expiration of the aforesaid period was to give two months' previous notice ending with the calendar month. Now, it is clear that this particular clause was intended to operate only if the tenancy was for a fixed period. THE agreement to lease is in a printed form, and the print with regard to Clause 1 which sets out the period of the tenancy and the rent clearly shows that a tenancy for a fixed period was intended and the blank was to be filled in to show what was the period of the tenancy. As this particular tenancy was a monthly tenancy, the print in Clause 1 is struck off and a typed statement is incorporated which states that the tenancy between the parties is not a tenancy for a fixed period, but a monthly tenancy. It is, therefore, clear that Clause 9 was abrogated as soon as the parties agreed that the tenancy was to be a monthly tenany. It is impossible to contend that although the tenancy was a monthly tenancy, the notice that was to be given was a notice of two months. THE very definition of a monthly tenancy is that it is a tenancy for an indeterminate period which can be determined by a month's notice.

(3.) THE history of the legislation with regard to the right of the tenant to sub-let is interesting and throws considerable light on the construction we must put upon Section 10.THE Bombay Rent Registration Order of 1942 was amended by a Notification dated September 13, 1943, which made a tenant liable to be ejected if he sub-let the premises without the written permission of his landlord after the date of that Notification. THErefore, this Order took away the right of the tenant which he had under the ordinary law of sub-letting without the permission of his landlord in the absence of any contract to the contrary, and it went to the length of penalising such sub-letting by making the tenant liable to be ejected. THEn came the Notification dated January 6,1944, which further amended the Bombay Rent Restriction Order of 1942 and that amendment was practically in the same terms ass. 10 of the Act of 1944, although the Notification of January 6, 1944, did not expressly render the tenant liable to be ejected if he sub-let the premises without intimating in writing to his landlord the fact of his having so sub-let and also the rent at which they were sub-let. THErefore, the law was rendered less drastic as far as the tenant was concerned. He was not compelled to take the permission of his landlord in the case where there was no such term in the contract between them, but he had to comply with the two conditions to which we have referred. Now, according to the Advocate General the tendency of the Legislature is to protect the tenant to such an extent that the Legislature intended that he should be given the right to sub-let even though he had no such right under the contract between him and his landlord; and the Advocate General wants us to construe Section 10 in order to give effect to the tendency of modern legislation which is intended for the protection of tenants. Courts must try and not deter the Legislature from carrying out its object so long as it is possible to do so. But if the Legislature fails to carry out its object by giving proper expression to it by using adequate language for the purpose, the Court cannot violate the canons of construction merely for the purpose of assisting the Legislature for a supposed object which it might have. But in this case it is not even clear that that is the tendency of modern legislation and the Legislature intended to give the tenants an unrestricted right to sub-let. Because when we come to the latest Act, viz. Act LVII of 1947, we find that Section 15 of that Act contains a complete prohibition against the tenant to sub-let; and Section 13 goes to the length of providing the landlord with an additional ground for ejecting the tenant if the tenant sub-lets his premises. THErefore, if one is entitled to consider the object of the Legislature and the tendency of legislation, the latest Act seems intended to be against the right of the tenant to sub-let, rather than in favour of giving the tenant an unrestricted right to sub-let, even contrary to the provisions contained in the contract between the landlord and the tenant.