KARTICK CHANDRA DAS Vs. GANGADUTTA MURARKA

JUDGEMENT

(1.) This is an appeal from a decision of the Judges, Special Bench of the Court of Small Causes, Calcutta, dated 10-7-1953, reversing the decision of the Sixth Judge of the Court of Small Causes, Cal in Suit No. 2625 of 1951 D/- 20-12-1952. The plaintiffs in the said suit are the appellants before us.

(2.) The matter arises in this way: The plaintiffs had instituted the said suit for ejectment of the defendant from premises No. 5, Raja Raj Kissen Street, Calcutta. Originally there was a lease for ten years granted by the plaintiffs in favour of the defendant in respect of the said premises. The said lease expired in June, 1947. Before that date the Rent Ordinance had on 1-10-1946 come into existence. It was continued by subsequent Act being Bengal Act I of 1947 and thereafter it was continued by another Act being West Bengal Act V of 1948. On 1-12-1948, the Act of 1950 was passed. This suit was filed on 8-12-1951, on the ground that the plaintiffs required the premises for their own purposes. Prior to the institution of the suit a notice to quit was served on the defendant expiring by the end of Chaitra, 1357 B.S. That notice was given on the 23rd Aswin 1357 B.S. The lower Court dismissed the suit on the ground that the notice was insufficient. It, however, found that the plaintiffs required the premises for their own use. The reason for holding that the notice was insufficient by the said Court was that after the expiration of the lease the defendant held the premises as a yearly tenant, the tenancy commencing from the 1st of Ashar and ending with the end of Jaistha each year and, therefore, the notice to quit in the present case having expired with the end of Chaitra 1357 B.S. was held by the said Court to be invalid. The said Court held that the notice ought to have expired with the end of Jaistha, 1357. On this ground both the Courts dismissed the plaintiffs' suit. The present appeal has been preferred against the said decision of the lower appellate Court.

(3.) Mr. Gupta appearing on behalf of the appellants contended before us in the first place that a notice to quit in this case was wholly unnecessary and the defendant is liable to be ejected even if no notice had been given. In the premises, Mr. Gupta contended, the notice should have been Ignored and a decree for ejectment should have been passed against the defendant. Mr. Gupta's argument was that the tenancy had expired with the afflux of time in June 1947 and the tenant no doubt remained in possession but that was not because of any agreement between the parties but because of the force of the statute, that is the Rent Ordinance and the subsequent Acts. The statute according to Mr. Gupta allowed the tenant to remain in possession on certain conditions and if at any time any one of those conditions which prevented ejectment ceased to be operative, then the tenant would be liable to be ejected. The net result of Mr. Gupta's contention is that there was no tenancy created between the parties by virtue of any contract but the tenant was entitled to remain in possession of the premises by virtue of statute and on the conditions laid down therein. One of such conditions was that, he would pay rent allowable by this Act and the Rent Act made provisions under which the 'rent allowable by this Act' could be fixed. Applications were made in the case both by the landlord and tenant for fixation of such rent; but those applications were made by virtue of the provisions of the Act and not because of any contract between the Parties. Mr. Gupta further argued that rent was no doubt received in this case by the landlords after the expiry of the tenancy in June 1947, but mere receipt of rent would not alter the legal position of the parties and a tenancy would not be created) because of receipt of such rent by the landlord. According to him the tenant is entitled to remain in possession by paying the rent allowable by the Act and the landlords in such circumstances have no other alternative but to accept the-rent. In support of his said contention Mr. Gupta relied on the case of 'Haralal Das v. Pashupatl Charan Biswas', and on the observations of Mukherjea, J., as he then was, made in the case of 'Kai Khushroo Bezonjee Capadia v. Bai Jerbai Hirjibhoy Warden', AIR 1949 FC 124 at p 128 (B). The said two decisions were based upon two English cases being 'Morrlson v. Jacobs', 1945-1 KB 577 (C) and 'Davies v. Bristow', Penrhos College, Ltd. v. Butler', 1920-3 KB 428 (D). Mr. Gupta contended on the authority of those decisions that acceptance of rent in such circumstances does not create a tenancy and does not-entitle the tenant to have a notice to quit before he can be ejected. Mr. Gupta further contended that any proceedings which the landlord might have taken for the purpose of fixing the rent under the Rent Act would not also debar him from obtaining a decree for ejectment if any one of the conditions, which prevented such ejectment under the Rent Act, had ceased to be operative,