KISHOREDAS P MANGALDAS Vs. AHMED SULEMAN

JUDGEMENT

(1.) This is one of the three suits in which the question arises as to whether after the Bombay Rent (War Restrictions) Act, II of 1918, has ceased to apply to a particular set of premises, the tenant is entitled to a fresh notice to terminate the tenancy oven though a notice terminating the tenancy has been given by the landlord during the time when the act was in operation. This particular suit has been fully heard and the parties have adduced evidence on all the points At the instance of the learned Counsel for the defendants in the other two suits I have heard the parties in those suits also on the question of notice, which is common to all these three suits. But in dealing with the point 1 shall refer only to the facts of this case. The plaintiff sues to recover possession of a certain shop, which is described as shop No. 3, situated at the junction of Shaikh Memon Street and Janjirkar Street and which is one of a group of shops known as Green Market, The defendant was a monthly tenant on the basis of a lunar month. In 1918 ha used to pay Rs. 120 as rent, but after the Rent Act came into force he paid at Rs. 72-6-0 per month as standard rent. On July 29, 1924, the plaintiff gave one month's notice calling upon the defendant to vacate the premises on Shravan Vad 30th, Samvat 1980, corresponding wi August, 30, 1924. The premises in question were used for the purposes of business and not as a dwelling house, and the protection which the tenant had under the Rent Act terminated on August 31, 1924. There was some correspondence between the parties which commenced in January 1925. In the course of that correspondence the plaintiff stated that he would charge Rs. 200 per month for the period during which the defendant was wrongfully holding over. The defendant offered to pay sixty per cent, over and above the standard rent, which would be nearly the rent which he was paying before the Rout Act came into force, i. e., nearly Rs. 120. But the plaintiff did not accept the defendant's offer, and insisted upon his paying Rs. 200 per month if he wanted to continue as a tenant. He filed the present suit on March 3, 1925, to recover possession on the basis that the tenancy had been duly terminated by the notice of July 29 and claiming compensation for the period during which the tenant held over after the period of the notice at the rate of Rs. 200 per month.

(2.) The principal defence is that the notice of July 29 is ineffective because the defendant remained in possession according to law after August 30 under the provisions of the statute at least for one day. That gave him, it is contended, the position of a tenant according to the Act and as no notice terminating that tenancy wan given, there was no effectual termination of the tenancy. It is also contended that the amount claimed by the plaintiff is too high under the circumstances if the notice is found to be effective.

(3.) I shall first deal with the question which relates to the notice. Though the question has been argued at some length it seems to me that the point is very narrow. Apart from the provisions of the Bombay Rent Act (II of 1918) it is clear that the defendant was a monthly tenant of the plaintiff and his predecessor-in- title, and it was open to the plaintiff to terminate that tenancy by one month's notice according to the lunar month. The notice given is clearly one month's notice. Apart from the provisions of the Rent Act it is not disputed, and it cannot be disputed, that the notice it-: a perfectly good notice to terminate the monthly tenancy which existed between the parties. It is urged, however, that under the provisions of Section 9 of the Rent Act, so long as the defendant pays or is ready and willing to pay rent to the full extent allowable by the Act and performs the conditions of the tenancy, he is a tenant in spite of the notice to terminate the tenancy. No doubt the word tenant is used in Section 9 of the Act; and it is contended that as a result of that provision his position on August 31 was that of a tenant of the defendant and that in spite of the notice the original tenancy continued under the statute which required a further notice to terminate it after the provisions of the Act ceased to apply after August 31. It seems to me that this contention is not sound. Apart from the statute the tenancy is a matter of contract between the plaintiff and the defendant and in spite of the statute it is perfectly open to the landlord to give a proper notice terminating that tenancy. It is equally clear that under the provisions of the Act in spite of the termination of such tenancy the tenant can continue in possession. No order for the recovery of possession of the premises can be made against the tenant so long as he pays or is ready and willing to pay rent to the extent allowable by the Act. In the view I take of the case, this would mean that on August 31 no order for the recovery of possession of these premises could be made against him if he was willing to pay the standard rent on that day. But when the provisions of the Act ceased to apply after August 31, 1924, there was in fact no tenancy to terminate. After August 30, on which the contractual tenancy terminated, he could remain in possession only under the provisions of the statute which gave him the right to remain in possession subject to the conditions as to payment of rent and other conditions with which we are not concerned. But the moment the statute ceased to have operation in his favour his position with reference to the premises is that of a tenant holding over, whose tenancy has been terminated On a consideration of all the arguments urged on both sides, I have come to this conclusion and I have stated the view which I take of the legal position of the defendant after the notice was given and after ha erased to have the benefit of the Rent Act. It has been urged that as the word tenant is used in Sub-section (1) of Section 9, the legislature has given him the position of a tenant during the period in which the Act is in force and he is entitled to all the rights and remedies which a tenant would have against the landlord as if he was a monthly tenant under a contract with his landlord. I am unable to accept this contention and I do not see how the more use of the word tenant in Section 9 can justify this position.