ABDUL GANI Vs. MD ISRAIL

JUDGEMENT

(1.) This is a reference in which three questions have been referred to us for answer. The relevant facts are all set out in the order of reference. It will be convenient to refer to it briefly. The suit was for eviction of the defendant, a monthly tenant, from one ground floor room within the premises 71A, Colootolla Street, Calcutta. A notice to quit dated 21st September. 1961 was given by the landlord through his lawyer, a copy of which is set out in the order of reference. It sets out two grounds, corresponding to clauses (a) and (f) of Section 13(1) of the West Bengal Premises Tenancy Act. 1956 (hereinafter referred to as the 'said Act'). There is no express statement therein to the effect that in default of making over possession a suit will be filed. As the referring Court was of the view that the proposition laid down in the decision of the Division Bench in Dulin Chand Dutta v. Renuka Banerjee, 68 Cal WN 296 that if a notice to quit would not, by itself, be a notice of suit, the mere mention of the ground of ejectment in a notice to quit, would not make it so, is too wide, a reference was made to a Full Bench for its decision on three points which have been 5et out in the Order of Reference and are as follows:

(2.) It will thus be seen that a tenant gets protection against the passing of in order or a decree for the recovery of possession of any premises in his occupation unless he falls within one or the other of the eleven grounds set out in sub-section (1) of Section 13. For our purposes, it is most important to bear in mind the fact that the immunity granted under Sub-section (1) is from an order or a decree for recovery of possession being passed against the tenant. This has been expressly stated in the provisions of the sub-section itself. In other words no tenant can possibly be mistaken as to two facts, firstly that if he does not come within any of these eleven exceptions mentioned in sub-section (1), he is completely protected from any order or decree being passed against him for recovery of possession of any premises in his occupation and secondly that if he does come within any of these exceptions the landlord is entitled to an order or a decree being obtained for the recovery of possession of the premises in his occupation; provided of course that there is nothing to prevent him from doing so by any other provision of law. There are two provisions of law to be considered in this connection. Assuming that the tenant comes within one or more of the eleven grounds which entitles the landlord to obtain an order or decree for recovery of possession there must be a termination of the tenancy under Section 106 of the Transfer of Property Act. The landlord is not entitled to an order or decree for possession before terminating the tenancy, which is contractual. A second condition is imposed by sub-section (6) of Section 13. It speaks of a notice to be given before a suit or proceeding is instituted, and the period of the notice is one month expiring with a month of the tenancy. It must be remembered that Section 106 of the Transfer of Property Act does not speak of the filing of any suit or legal proceeding. It merely lays down the procedure for terminatin" a contractual tenancy. Section 13(6) speaks about institution of a suit or proceeding for the recovery of possession, on any of the grounds mentioned in sub-section (1) except the grounds mentioned in clauses (i) and (k) of that sub-section. This is of the greatest importance because we must not lost sight of the fact that subsection (6) which introduces for the first time a "notice of suit" itself provides that such a notice can be given only if one or more grounds mentioned in sub-section (1) except the prounds mentioned in clauses (i) and (k) exist and the existence of these ground? is a pre-condition for the filing of a suit or proceeding for the recovery of possession. A question thereupon arose as to what notice was contemplated under Section 13(6) of the said Act. Was it a notice to quit, or a notice of suit, or a combined notice to answer both the above purposes? This question amongst others was referred to a Special Bench in Suraya Properties Private Ltd. v. Bimalundu Nath Sarkar. 67 Cal WN 977=(AIB 1964 Cal 1) (SB). I set out below the Question and its answer:

(3.) Before us, it is not disputed that a notice under Section 13(6) would be valid of the notice can be said to be a notice of suit by express words or necessary intendment. In fact, a Paragraph from the judgment of Bachawat J. in the above-mentioned Special Bench case is cited before us which runs as follows: