FIRM GANESH DAS RAM GOPAL Vs. JAMUNA DAS

JUDGEMENT

(1.) This second appeal, which is by the defendant, arises out of a suit in ejectment. The defendant was and had, for a period of about 15 years, been a monthly tenant of a house situated in the town of Muzaffarpur. On 7 July 1942, a notice to quit was served on him. This notice expired on 3l July, 1942, and one of the two points taken by Mr. S. N. Bhattacharyya for the appellant, is that the notice was not a valid notice inasmuch as it did not expire on the proper day. According to Mr. Bhattacharyya, the notice should have expired on 1 August 1942, and not on 81 July 1942. It is true that, if a lease is made for a period of one month, commencing on the first day of the month, that lease will, by reason of the provisions contained in Section 110, T. P. Act, expire at midnight on the first day of the following month. In other words, if, in law, there was a re-letting of the house to the defendant on 1 July 1942, and if there were no other provision in the T. P. Act besides s. no which applied, the argument put forward by the learned advocate for the appellant would be unanswerable. Neither of these assumptions can, however, be made.

(2.) In the first place, a letting to a monthly tenant is not a letting which expires at the end of the first month or at the end of each succeeding month nor is there a re-letting at the commencement of each month of the tenancy. In the ordinary course, as in the present case, it is a letting for a period of time which is determinable by due notice: see the observations of McCardie J. in Mellows V/s. Low (1923) 1 K. B. 522. Secondly, Section 106, T. P. Act, explicitly provides that a lease from month to month is terminable by fifteen days notice expiring with the end of a month of the tenancy." Where, therefore, the tenancy has commenced on the first of a month and it is apparently admitted that this particular tenancy did so, the notice must expire with the last day of a month. The learned advocate for the appellant relied on a decision of their Lordships of the Judicial Committee in Binoy Krishna Das V/s. Salsicoioni and on a subsequent decision of Ameer Ali J. in the High Court of Calcutta in Charu Chandra V/s. Bankim Chandra 42 C. w. N. 1115 in which that decision was followed. When, however, these decisions are closely examined, it will be seen that they do not support, but negative, the contention which has been put forward by Mr. Bhatta-charyya. It is important to notice that in each of these two cases the defendant had been a tenant under a lease for a term of years and, on the expiry of the lease had been permitted to hold over, thereby becoming a monthly tenant.

(3.) In Binoy Krishna Das V/s. Salsicoioni the lease under which the defendant had originally been let into possession of the premises was a lease for four years expressed to be "from 1 June 1921." By reason of the provisions contained in Section 110, T. P. Act, this lease came to an end at midnight on 1 June 1925. The monthly tenancy, therefore, commenced on 2 June, 1925, and any notice determining it had therefore to expire on the first day of a month. It is quite clear from the judgment of Lord Tomlin that, in determining when the original tenancy came to an end and the periodic tenancy commenced, regard had to be had to the provisions of Section 110; but that, in determining when the notice terminating the periodic tenancy had to expire, regard had to be had to Section 106, T. P. Act. In my judgment, therefore, the notice which was given to the defendant was a valid notice. The other point taken by Mr. S. N. Bhattacharyya, for the appellant, is that the Bihar House Rent Control Order, 1942, applies, and that by reason of the provisions contained in Section 13 of that Order the lower appellate Court was bound to dismiss the suit. Section 13 is in these terms: 13. Bar against orders for recovery of possession of house in possession of a tenant.-No order for the recovery of possession of any house shall be made so long as the tenant pays or is ready and willing to pay rent to the full extent allowable by this Order and performs the conditions of the tenancy.