VENKATARO ANANT PAI Vs. NARAYANLAL BANSILAL

JUDGEMENT

(1.) This matter was heard by us on October 18, 1968. It arises out of a decree made by the Small Cause Court at Bombay directing delivery of possession by the defendants to the plaintiffs for non-payment of rent under Section 12(3)(a) of the Bombay Rent Act. For the reasons given in our interlocutory judgement we held that, in view of the peculiar facts of the case, Section 12(3)(a) of the Rent Act was not attracted. As, however, there was a finding by the learned trial Judge and the appellate Court that even if Section 12(3)(b) of the Rent Act applied, the defendants had not complied with the terms of that Section an were therefore, not entitled to the protection of the said Act and as we did not consider the finding satisfactory, we remitted that issue to the trial Court to be certified by the appellate Court to us.

(2.) After the remand the trial Court permitted the defendants to lead additional evidence on this issue if they so desired and the defendants examined defendant No. 1. The learned trial Judge after considering the evidence summarised the whole position thus :

(3.) Defendant No. 1 has now taken a contention that in order that a decree for possession should be made there has to be a notice under Section 12(3)(b) of the Rent Act. The other defendants have not cared to appear at either stage. In fact, the application is only by defendant No. 1. He says, inasmuch as stated in our interlocutory judgment, there is no such notice, a decree in eviction cannot be made. There is no substance in this contention. Section 12(2) of the Rent Act requires a notice to be given in the first place to terminate the tenancy as required by Section 106 of the Transfer of Property Act and if advantage of the provisions of Section 12(3)(a) of the Rent Act has to be taken then the provisions of that Section must be strictly complied with. In the present case, there have been several suits filed against the defendants from time to time these being Suit No. 835/4635 of 1958 for recovery of arrears of rent from March 1, 1952 to February 28, 1958; Suit No. 52/404 of 1961 for recovery of arrears of rent from March, 1,1958 to December 31, 1960; Suit No. 71/489 of 1954 is the present suit for recovery of arrears of rent from January 1, 1961 to December 31, 1963 and even thereafter there is another Suit No. 626/6661 of 1965 for recovery of the further amount of arrears of rent. Section 12(2) of the Rent Act requires, for a suit to be filed under that sub-section for possession, a notice in writing of the demand of the standard rent or permitted increases and no more. By reason of the earlier two suits demand has been made previous to that date. The only other condition required is the expiry of one month after the demand Court have held that before applying sub-section (2) of Section 12 of the Rent Act the contractual tenancy must be terminated in accordance with Section 106 of the Transfer of Property Act. That tenancy had already been terminated prior to the filing of suit No. 835/4635 of 1958. In our view, therefore, inasmuch as the defendants had not continued as contractual tenants no question of terminating their tenancy arose so for as the notice of demand was concerned, the two suits themselves were enough of demand to enable the plaintiffs after the expiry of the period of one month to file a suit for recovery of possession.