PRIYANATH GHOSH Vs. NISHI KANTA SAHA

JUDGEMENT

(1.) The defendant is the appellant in this Court. This appeal arises out of a suit for ejectment on the ground of default. The only point involved in this appeal is whether the suit brought by the landlord on the second notice is valid and legal, as admittedly by the first notice the landlord determined the tenancy of the defendant. The first notice was served on the defendant in 1967 by which the tenancy of the defendant was terminated. The present suit was brought on the notice which was issued on 10-1-69. In the second notice it has been stated that notice is given to quit and vacate the premises as soon as Feb., 1969 expires when the lease shall stand determined. In the said notice, there is no reference that on an earlier occasion, that is, on 16th March, 1967, another notice was served by which the defendant was asked to quit and vacate the premises and give vacant possession to the plaintiff with the end of the last day of the month of April, 1967. It is thus clear that by the first notice (Ext. I) the tenancy of the defendant was terminated by the end of April, 1967. There is nothing to show that the notice (Ext. I) is illegal and invalid and that the said notice did not determine the defendant's tenancy. That being so, unless it is proved by the plaintiff that the first notice was waived, the plaintiff's present suit based on the second notice that is on the notice dated 10-1-69 (Ext. 3) must be held to be not maintainable. Waiver of a notice of termination of a tenancy can be proved only by conduct of parties, that is inspite of termination of the tenancy, the parties agreed that a new tenancy would be created or that the old tenancy would continue. In the present case, there is absolutely no such evidence. After termination of the tenancy by the first notice (Ext. I), the landlord did not accept any rent from the defendant. True, the defendant deposited rents with the Rent Controller. That he must do as he was a statutory tenant even after the termination of the tenancy and that being so, he was under an obligation to deposit rent with the Rent Controller in order to protect his possession.

(2.) Mr. Himadri Sankar Majumdar, learned Advocate appearing on behalf of the appellant has relied on a decision reported in Dilip Kumar Singha Vs. Abodh Gopal Ghosh, 11 CWN 515. In this case the landlord served a notice of ejectment on the tenant and determined his tenancy. Thereafter, the tenant gave two notices to the landlord that the tenant would vacate the premises. Thereafter the landlord served another notice and brought the suit for ejectment on the second notice. It was held that after termination of the tenant's tenancy on the basis of the first notice, the tenant's notices were illegal as after the termination of the tenancy, the tenant was only a statutory tenant and had no right to serve notice on the landlord. It was farther held that the ground for ejectment mentioned in clause (j) of section 13(1) of the West Bengal Premises Tenancy Act, 1956 relates to a contractual tenancy and in the instant case as the contractual tenancy had come to an end by the first notice given by the landlord and statutory tenancy has come into existence, there was no further scope for determining such tenancy by the tenant by giving a notice to quit. In the present case also the tenancy was terminated by the first notice (Ext. 1) and that being so, the tenant was merely a statutory tenant and as such the defendant's tenancy could not again be terminated by the second notice (Ext. 3) and that being so, the suit having not been brought on the second notice, it must be said that the learned courts below were wrong to say that the suit was maintainable. Mr. Ranjit Kumar Ghosal, learned Advocate appearing on behalf of the respondent refers to a decision reported in AIR 1971 SC 102, Tayabali Jafer bhai Tankiwaila Vs. M/s. Ashan & Co. & ors.) . In this case the landlord gave the first notice to quit. The tenant did not vacate. Then a second notice was given after about a year demanding the rent for the period between the first and second notices. In a suit for ejectment, the landlord claiming damages for use and occupation for the period subsequent to the second notice, show that the landlord was aware of the distinction between rent and compensation for use and occupation. It was held considering the facts and circumstances of the case that the first notice was waived and that the landlord had treated the tenancy as subsisting. The facts of the case before the Supreme Court are completely different from the facts of the present case. In that case the landlord claimed rent for the period between the first notice and the second notice and that being so, it was held that the first notice was waived, As has already been stated that in the present case, there was no acceptance of the rent by the landlord. This being the position as I have already held that the landlord ought to have brought the suit on the first notice and as the tenancy was already determined by the first notice there was no scope for the landlord to serve a second notice and that the suit brought on the second notice must be held to be not maintainable.

(3.) In the result, the appeal is allowed on contest. The judgments and decrees passed by the courts below arc set aside and the suit dismissed. There will be no order for costs in this appeal. The parties will bear their own costs in the court below.