DATTATRAYA KESHAVRAO Vs. MARTAND VISHVANATH

JUDGEMENT

(1.) THIS second appeal arises out of a suit for ejectment on a tenant and for recovery of arrears of rent. The defendant admitted to be the plaintiff's tenant, but did not admit that he was in arrears of rent. The validity of the notice of eviction was challenged.

(2.) THE trial Judge passed a decree for eviction and also for Rs. 30 as arrears of rent. The learned Additional District Judge, Gwalior has maintained the decree for arrears of rent, but has dismissed the plaintiff's suit in respect of ejectment on the ground that a reasonable time was not given to the defendant to vacate. It has been found by both the Courts below that the defendant was in arrears of rent. The lower appellate Court has also held that section 108 of the Transfer of Property Act was not applicable to this case inasmuch as the tenancy commenced at a time when the Transfer of Property Act or any law corresponding to it was not in force in the then Gwalior State within the territories of which the suit property was situate. 1953 SCR 1009 : AIR 1953 SC 228, where it is laid down that the provisions contained in section 108 of the Transfer of Property Act are not based on any principles of equity, justice and good conscience, but are merely procedural and arbitrary, which do not apply to leases effected at a time when the Transfer of Property Act was not in force. It is also laid down: The cause of action for the suit can arise simultaneously with the presentation of a plaint.

(3.) 1960 MPLJ 1002, section 4 does not furnish to the landlord any additional grounds for ejectment nor are his rights under the Transfer of Property Act enlarged. Section 4 is indeed a disabling provision which creates an impediment to the institution of a suit and is got over only when one of the grounds enumerated in the section itself exists. But as soon as that hurdle is surmounted the rights and liabilities of the parties as regards ejectment have to be determined by applying the provisions of the Transfer of Property Act. What section 4 of the Accommodation Control Act bars is the institution of a suit and not the determination of tenancy. In this connection Chhotelal v. Abdullabhai AIR 1952 MB 121, may also be seen. This appeal is allowed, the judgment and decree of the first appellate Court in so far as it dismissed the plaintiff's suit in respect of ejectment are set aside. The judgment and decree of the trial Court are restored. The appellant shall get his costs throughout. Appeal allowed