Bhaiya Punjalal Bhagwanddin vs Dave Bhagwatprasad Prabhuprasad

Rewritten Version Notice: This is a rewritten version of the original judgment.

Court: supreme-court

Case Number: Civil Appeal No. 209 of 1962

Decision Date: 4 May 1962

Coram: Raghubar Dayal, J.L. Kapur, K.C. Das Gupta

In this matter the parties were Bhaiya Punj​alal Bhagwanddin, who was the petitioner, and Dave Bhagwatprasad Prabhuprasad, who was the respondent. The case was decided by the Supreme Court of India on the fourth day of May in the year 1962. The judgment was authored by Justice Raghubar Dayal and was handed down by a bench consisting of Justice Raghubar Dayal, Justice J. L. Kapur and Justice K. C. Das Gupta. The official citation of the decision appears as 1963 AIR 120 and as 1963 SCR (3) 312, and the judgment has been referred to in several subsequent reports, including RF 1964 SC 1341 (9), F 1967 SC 1078 (3), HO 1974 SC 818 (15, 26), F 1977 SC 740 (10), O 1979 SC 1745 (11, 15). The dispute concerned the application of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947, specifically section 12(3)(a), and involved questions as to the method of determining the tenancy, the validity of a notice to quit, the effect of the Indian versus the British calendar on that notice, and whether the tenant could obtain relief against forfeiture.

The factual background disclosed that the petitioner was occupying certain residential premises as a tenant on the basis of a tenancy that was originally governed by the Indian calendar. For a period of approximately five years the petitioner failed to pay the rent that had become due, resulting in arrears that exceeded six months. Consequently the respondents served a notice to quit, directing the petitioner to vacate the premises on the last day of the Indian month. When the petitioner did not comply, the respondents instituted a suit for ejectment under the aforesaid section 12(3)(a) of the Act. Within two months after the suit was filed the petitioner paid the outstanding rent, but the suit was nonetheless decreed for eviction. The petitioner argued that, because section 27 of the Act and rule 4 provided that rent could be recovered according to the British calendar, the tenancy should be deemed to be governed by the British calendar, rendering the notice to quit ineffective and entitling him to relief against forfeiture. The respondents contended that no prior notice to quit was a prerequisite for filing the ejectment suit, that the notice they had served was valid, and that the statutory scheme did not permit any relief against forfeiture in the circumstances.

The Court held that the decree for ejectment was proper. It emphasized that the landlord must first determine the contractual tenancy by serving a valid notice of termination before a suit for ejectment on the ground of non‑payment of rent may be instituted under section 12(3)(a). The statutory provision did not create a new independent right for the landlord to evict a tenant; rather, that right arose only after the tenancy had been lawfully terminated. The Act was interpreted as furnishing the tenant with additional protection which could be invoked only after the tenancy was duly ended. No provision in section 12 of the Act superseded the general principles laid down in the Transfer of Property Act. The Court further distinguished between the landlord’s right to possession, which materialised upon lawful termination of the tenancy, and the right to recover possession, which could be exercised under the Act only after the former right had arisen. Consequently, the notice to quit was upheld as valid, the original tenancy remained governed by the Indian calendar, and sections 27 and rule 4 were held to relate only to the mode of rent recovery and not to a conversion of the tenancy calendar. In view of the explicit language of section 12, the Court concluded that relief against forfeiture could not be granted in the present case.

The Court referred to a series of authorities, namely Dr K A Dhairyawan v J R Thakur [1959] S C R 799, Baghubir Narayan Lotlikar v Fernandiz (1952) BOM L R 505, Karsandas v Karsanji A I R (1953) SAU 113, Meghji Lakhamahi v Furniture Workshop (1954) A C 80 and Ebner v Lascelles (1928) 2 K B 486, which were cited in support of the proposition that the right to possession arises under the Act only after a tenancy has been duly terminated. The Court distinguished the decisions in Bai Brij Bai Krishna v S K Shaw and Bros. [1951] S C R 145 and Shri Hem Chand v Shrimati Sham Devi I L R 1955 PUNJ 36, indicating that those cases did not govern the present dispute. The notice to quit issued to the tenant was held to be a valid notice. The tenancy at issue had originally been created according to the Indian Calendar, and the Court observed that neither Section 27 of the Act nor Rule 4 transformed that tenancy into one governed by the British Calendar. Rather, Section 27 and Rule 4 merely stipulated that rent could be recovered according to the British Calendar. Consequently, on the basis of Section 12, there was no provision for granting relief against forfeiture in the circumstances of this case. Section 12(3)(a) was explained to empower the Court to pass a decree of eviction where rent is payable month‑by‑month, the arrears extend for six months, and the tenant fails to pay within one month after a demand notice is served. The Court emphasized that any payment of arrears made after the suit was instituted did not alter the tenant’s liability for eviction nor the Court’s authority to grant the decree, and that the Court was obliged to pass the decree once the statutory requirements were satisfied. The judgment further noted that where the legislature intended to provide relief against forfeiture, it would have done so by including an explicit provision.

The appeal, designated as Civil Appeal No 209 of 1962, was presented by special leave against the judgment and order dated 10 October 1961 of the Gujarat High Court in Civil Revision Application No 378 of 1960. Counsel for the appellant and for the respondents were listed, and the judgment was delivered on 4 May 1962 by Justice Raghubar Dayal. The appellant was a tenant of certain residential premises situated in Anand, owned by the respondents who were the landlords. Under the lease agreement, the tenant paid rent of Rs 75 per month calculated according to the Indian Calendar. In 1951 the tenant applied for fixation of a standard rent, and on 31 March 1954 the standard rent was fixed at Rs 25 per month. The tenant failed to pay the arrears of rent covering the period from 27 July 1949 to 5 July 1954. On 16 October 1954 the landlords served a notice to quit, stating that rent for more than six months was in arrears and that the tenant was required to vacate the premises on the last day of the tenancy month, identified as Kartak Vad 30 of Samvat Year 2011. The tenant neither paid the outstanding rent nor vacated the premises. Consequently, on 16 December 1954 the respondents instituted a suit for ejectment, relying on the provisions of Section 12(3)(a) of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947, as the basis for their claim for eviction.

In the suit that the respondents filed for ejectment, the lower courts relied upon the provisions of section twelve, sub‑paragraph three, clause a, of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947, which the judgment thereafter refers to simply as “the Act.” Within two months after the suit was instituted, the appellant deposited an amount of one thousand seventy‑five rupees in the court as a contribution toward the arrears of rent. With the court’s permission, the respondents were allowed to withdraw nine hundred rupees from that deposit, which represented the sum that was due for arrears up to that date. The trial court subsequently passed a decree for ejectment, awarded the respondents arrears of rent for three years, and ordered costs against the appellant. An appeal against the ejectment decree was presented to the appellate court, and that appeal was dismissed. The appellant then sought revision before the High Court, but that revision was also dismissed, and the present appeal challenges the order issued in that revision.

The appellant urged four separate points before the High Court. First, the appellant contended that the tenancy month should be measured by the British calendar rather than by the Indian calendar and that the courts below had failed to consider the evidence supporting that view. Second, the appellant argued that even if the lease expressed the tenancy month by the Indian calendar, section twenty‑seven of the Act required the tenancy to be treated as a British‑calendar month. Third, the appellant submitted that because the arrears of rent had been paid within two months of the suit’s institution, the appellant should be considered ready and willing to pay the standard rent, and consequently the landlord should not be entitled to recover possession of the premises. Fourth, the appellant maintained that the statute uses the expression “the Court may pass a decree for eviction in any such suit for recovery of possession,” which they interpreted as granting the court discretion to refuse an ejectment decree under section twelve, sub‑paragraph three, clause a of the Act.

The High Court examined each of these contentions. It held that the lower courts’ finding that the tenancy month was measured by the Indian calendar was based on a careful consideration of the evidence on record and therefore was binding. The High Court further concluded that section twenty‑seven of the Act did not transform the tenancy month to the British calendar; the provision only stipulated that the rent would be recovered according to the British calendar, regardless of any contractual term, and it did not provide for a conversion of the tenancy month itself. Regarding the appellant’s payment of arrears within two months of the suit, the High Court found that this act did not demonstrate a readiness or willingness to pay the standard rent, and consequently the landlord remained entitled to recover possession under sub‑section one of section twelve of the Act. Finally, the High Court affirmed that when it is proved that rent is payable by the month, that the rent has been in arrears for a period of six months, and that the tenant failed to make payment of the arrears until after the expiry of one month following service of the notice required by sub‑section two of the same section, the court is bound to pass a decree for ejectment under section twelve, sub‑paragraph three, clause a of the Act.

The Court noted that the tenant had remained in arrears for a continuous period of six months and that the tenant did not make any payment of those arrears until the one‑month period prescribed after service of the notice mentioned in sub‑section (2) of the relevant section had expired. Because of this factual finding, the Court dismissed the revision. The appellant raised two principal submissions before this Court. The first submission contended that the tenancy should be measured by the British Calender in accordance with section 27 of the Act and rule 4 made thereunder, and that, accordingly, the tenancy could not be forfeited merely because the arrears of rent were discharged within two months of the institution of the suit. The importance of that question lay in the consequence that, if the appellant’s tenancy were indeed governed by the British Calender, the notice to quit served by the landlord would be defective because it would not satisfy the requirements of section 106 of the Transfer of Property Act. Such a defective notice would mean that there was no lawful determination of the tenancy, and that a lawful determination is a condition precedent for the landlord to be entitled to possession and, consequently, to institute an ejectment suit on any ground, including the ground of rent arrears. The second focal issue, therefore, was to ascertain whether the law requires a prior determination of the contractual tenancy before a landlord may file a suit for recovery of possession against a tenant who is in rent arrears. If the law does not impose such a prerequisite, then it would be unnecessary to decide whether the tenancy continued to be governed by the Indian Calendar under the contract or had shifted to the British Calender pursuant to section 27 of the Act. When a tenancy is created by a contract between landlord and tenant, that contract remains valid and in force until it terminates either by operation of law or by the terms of the contract itself. Section III of the Transfer of Property Act enumerates the various circumstances under which a lease of immovable property may come to an end. Clause (b) of that section provides that a lease is terminated upon the expiry of a notice to determine the lease, or to quit, or upon an intention to quit expressed by one party to the other with proper service. No provision in the Act confers upon the landlord any unilateral right to determine the tenancy and thereby acquire the right to evict the tenant and recover possession. The Act was enacted with the purpose of regulating rents, ensuring repairs of certain premises, and preventing evictions that might arise from landlords exploiting the severe scarcity of premises relative to public demand. Accordingly, the Act was intended to curb the powers of landlords either to charge excessive rent or to evict tenants arbitrarily. The Court therefore held that a tenant does not require any additional statutory protection against eviction so long as the tenancy continues to exist under the terms of the contract, because the contractual rights and obligations remain effective until a lawful termination occurs.

In this case, the Court observed that a tenant could not be removed by the landlord while the tenancy remained valid under the contract between them. The Court explained that as long as the lease continued according to its terms, the Act did not need to give the tenant any additional protection against eviction. Section 12, subsection (1) of the Governing Act stated that a landlord was not entitled to recover possession of the premises provided the tenant paid the prescribed rent, any lawful increase, and complied with the other tenancy conditions to the extent that they were consistent with the Act. This provision therefore placed a limitation on the landlord’s right to take back possession. The Court noted that the statute did not specify the exact moment when the landlord would acquire such a right; normally, the landlord could only seek possession after the tenancy had legally terminated. Accordingly, the Court held that the provisions of subsection (1) operated against the landlord even after the tenancy had been terminated by any of the modes described in Section III of the Transfer of Property Act. The effect, the Court said, was that although a right to recover possession vested in the landlord once the tenancy ended, that right could not be exercised while the tenant continued to fulfill the obligations laid down in subsection (1). This additional safeguard was intended to protect the tenant after the tenancy had ended. The Court further clarified that the provision did not create a new ground for the landlord to evict a tenant for non‑payment of rent; the Act did not contain such a clause. Consequently, the landlord’s power to evict for rent arrears arose only after the tenancy was duly terminated, and the tenant’s continued occupation was based not on the contract but on the statutory right conferred by subsection (1) as long as he complied with its requirements. The Court therefore concluded that a tenant who remained in possession under a lease could not be lawfully evicted for a reason that would give rise to an action under section 12 while his tenancy had not yet been terminated. The Court further stated that if a tenant’s conduct removed the statutory barrier to eviction, the landlord was obliged to serve the tenant with a notice terminating the tenancy and also to serve a notice under subsection (2) of section 12.

In considering the requirements of sub‑section (2) of section 12 of the Act, the Court referred to the observations made in the judgment of Dr K. A. Dhairyawan v. J. R. Thakur. In that case the landlord had granted a lease of a specific parcel of land to the lessees for a fixed term, and the lease agreement obligated the lessees to erect a building on the demised land. The lease expressly provided that on the expiry of the term the lessees were to surrender both the land and the building to the lessor. After the lease term had expired, the lessor instituted suit seeking a declaration that he was entitled to the building and that he could recover possession of it. The lessees contended that they were also occupants of the building and that, under the Bombay Rents, Hotel and Lodging House Control Act, 1947, they could not be evicted from the building. They argued that the covenant requiring delivery of possession of the building could not be enforced because the lease of the land could not be terminated while the statutory protection of the Act remained in force. The Court held that the lease conveyed only the land and not the building; consequently the provisions of the 1947 Act did not apply to the contractual obligation to deliver possession of the building. The lessees’ further argument that possession of the building could not be transferred until the lease had been lawfully terminated was rejected. The Court observed that this contention lacked merit because the Act does not provide for the continuation of a lease beyond the period expressly stipulated in the lease. The Act merely confers on a person who remains in possession of the land after the lease term expires the status of a statutory tenant. Thus, even though the lease had ended, the lessee’s continued occupation was supported solely by the Act and not by any extension of the lease term. From this reasoning it follows that the restriction on the landlord’s right to recover possession under section 12 of the Act becomes operative only after the landlord has lawfully determined the tenancy. Until such determination is made, the landlord’s rights with respect to eviction remain governed by ordinary civil law rather than by the special provisions of the Act.

The Court explained that any dispute between a landlord and a tenant concerning eviction must be decided by the ordinary law of landlord‑tenant relations. In the decision of Ragbubir Narayan Lotlikar v. Fernandez, reported in the Bombay Rents, Hotel and Lodging House Rates Control Act (Bombay Act LVII of 1947), it was observed that “section 28 applies only to those suits between a landlord and a tenant where a landlord has become entitled to possession or recovery of the premises demised. Under the Transfer of Property Act a landlord becomes entitled to possession when there is a determination of tenancy. A tenancy can be determined in any of the modes laid down in section 111; and once the tenancy is determined, under section 108(q) the lessee is bound to put the lessor into possession of the property.” The judgment further stated that, as reported in (1) (1952) 54 Bom. L.R. 505, 511, “it is only on the determination of the lease or the tenancy that the landlord becomes entitled to the possession of the property, and when he has so become entitled to possession, if he files a suit for a decree for possession, then section 28 applies and such a suit can only be filed in the Small Causes Court.” The same page contained an additional observation that “section 12 postulates the fact that a landlord is entitled to recovery of possession and he is only entitled to possession under the provisions of the Transfer of Property Act. It is only when he so becomes entitled that the Legislature steps in and prevents the enforcement of his right by the protection which it gives to the tenant. No question of the application of section 12 can arise if a landlord is not entitled to possession at all.” A similar view was expressed in Karsandas v. Karsanji, where the Court held that “a tenancy must be duly determined either by a notice to quit or by efflux of time or under one or the other of the clauses of section III of the Transfer of Property Act before a landlord can evict his tenant on any of the grounds contained in the clauses of section 13(1) of the Bombay Rent Act as applied to Saurashtra. Therefore a notice determining the tenancy and calling upon the tenant to quit was in this case a necessary prerequisite to the institution of the suit.” The Court then distinguished the cases reported as Rai Brij Raj Krishna v. S. K. Shaw and Brothers (2) and Shri Hem Chand v. Shrimati Sham Devi (3). In the former case, section 11 of the Bihar Buildings (Lease, Rent and Eviction) Control Act, 1947, came for interpretation, and the Court observed that “section II begins with the words ‘Notwithstanding anything contained in any agreement or law to the contrary’, and hence any attempt to import the provisions relating to the law of transfer of property for the interpretation of the section would seem to be out of place.”

Section 11 of the Act is a self‑contained provision and it is unnecessary to look beyond the Act to decide whether a tenant may be evicted. The section expressly states that a tenant cannot be evicted except on the specific conditions listed in the Act, and one of those conditions for a month‑to‑month tenant is non‑payment of rent. In contrast, Section 12 is worded differently and cannot be treated as a complete code in itself; nothing in Section 12 overrides the provisions of the Transfer of Property Act. The earlier decision in Shri Hem Chand’s case concerned section 13(i) of the Delhi and Ajmer Merwara Rent Control Act XXXVIII of 1952, which provided that no decree for recovery of possession could be issued in favour of a landlord against a tenant, notwithstanding anything to the contrary in any other law or contract. That Court held that the Rent Control Act alone furnishes the procedure for obtaining ejectment and therefore the provisions of section 106 of the Transfer of Property Act were irrelevant when considering an application for ejectment made under the Rent Control Act. There is no provision in the present Act that corresponds to section 13(1) of the Delhi Ajmer Merwara Act, and consequently it is unnecessary to revisit whether the decision in Shri Hem Chand’s case was correct.

The Privy Council’s judgment in Meghji Lakhamahi and Brothers v. Furniture Workshop examined an application for possession under section 16 of the Increase of Rent (Restriction) Ordinance, No 23 of 1949 (Kenya). Section 16(1) provides that no order for recovery of possession of any premises to which the Ordinance applies shall be made unless, inter alia, the landlord requires possession for reconstruction or rebuilding. The Council observed that the only issue was whether the wording of section 16(i)(k) contemplated such an order. An application for possession under section 16 presupposes that the contractual tenancy of the demised premises has already been determined; it is not possible to determine the tenancy in part and leave the remainder undetermined. In the case before the Council the tenancy of the entire premises had been determined. The Court distinguished the right to possession from the right to recover possession. The right to possession arises once the tenancy is determined, whereas the right to recover possession follows when the person in possession, lacking any right to remain, refuses to relinquish the premises, thereby creating a cause of action for the landlord to seek a court order for recovery.

The Court explained that a landlord must resort to the courts to recover possession when the occupant, who has no legal right to remain, refuses to vacate. The right to bring an action for possession therefore arose only after the occupant’s refusal to surrender possession. In this regard, the Court observed that the provisions of section twelve governed the stage at which possession was to be recovered and did not apply to any earlier stages. Those provisions became operative only after the tenancy had been terminated and a legal right to possession had arisen. The Court further noted that where no contractual tenancy existed and a person was regarded as a tenant solely because a statute conferred on him a right to remain in possession, the right to possession arose from the statutory conditions that gave the landlord a cause of action. In such a situation there was no need to determine a tenancy because, in reality, there was no tenancy in the ordinary sense. For convenience, the Court said, the right to possession created by statute was described as a statutory tenancy. The Court cited the decision in Ebner v. Lascelles, which dealt with the Increase of Rent and Mortgage Interest (Restrictions) Act, 1920, and explained that the principal rights granted to a tenant under that Act were first, a right to remain in occupation after the contractual tenancy had ended, often described as a “status of irremovability,” and second, a right to be protected against excessive rent. The Court clarified that the right to remain after the contractual tenancy ended was distinct from the rent‑protection right that operated during the contractual tenancy. It also mentioned that section five of the 1920 Act stipulated that no order or judgment for recovery of possession of any dwelling to which the Act applied could be made unless the case satisfied one of the conditions listed in subsection one. Consequently, the Court held that as long as a contractual tenancy continued, a landlord could not institute a suit for recovery of possession even if section twelve of the Act did not expressly prohibit such a suit.

The Court observed that before a suit could be instituted under the Act, the tenancy first had to be determined in accordance with the provisions of the Transfer of Property Act. It was necessary, therefore, to examine whether the notice served on the appellant requiring him to vacate the premises on 16 October 1954—identified as the last day of the month under the Hindu calendar, that date corresponding to Kartik Vad 30 of the Saka Year 2011—was valid, given that the tenancy had originally begun on Kartik Sud 1 of the Saka Year 1963. The parties did not dispute that the tenancy was initially governed by the Hindu calendar. The appellant contended that this month‑to‑month tenancy, originally based on the Hindu calendar, had been converted into an equivalent tenancy governed by the British calendar pursuant to section 27 of the Act and rule 4 of the Rules made under the Act.

Section 27 of the Act provided that, notwithstanding any existing law, contract, custom or local usage, rent payable for a month, a year or any part thereof had to be recovered according to the British calendar. The section further authorized the State Government to prescribe the manner in which rent that had been recoverable under any other calendar before the Act came into operation should be calculated and charged in terms of the British calendar. Rule 4 of the Bombay Rents, Hotel and Lodging House Control Rules, 1948 dealt with the calculation of rent according to the British calendar. It stipulated that if, prior to the commencement of the Act, rent for any premises had been charged according to a calendar other than the British calendar, the landlord was required to recover from the tenant the rent for the broken portion of the month, year or part thereof immediately preceding the date on which the Act became effective, proportionate to the calendar that had then been in use. After that date, the landlord was to recover rent according to the British calendar, and the monthly rent calculated on that basis could not exceed the monthly rent that had been payable under the earlier calendar.

The Court noted that neither the section nor the rule contained any provision directing a conversion of the tenancy month itself from the Hindu calendar to the British calendar. Their purpose was solely to prescribe how rent should be recovered once the British calendar became applicable. Accordingly, since the Act had been enforced on 13 February 1948, the rent for each month was to be determined in terms of the British calendar. The Court further explained that the landlord could recover the monthly rent after the expiry of a full month counted from that date, or could recover rent for the period extending from 13 February to the end of that month at the monthly rate, and thereafter continue to recover rent after the expiry of each subsequent calendar month.

In this case, the Court observed that the statute and the rule contain no provision specifying the exact date from which the month for rent recovery must begin. It noted that this omission was likely a logical consequence of the legislation establishing standard rents, because standard rents presuppose the existence of standard months. The Court further explained that the country employs a variety of calendars: Hindus themselves use several different calendars, Muslims follow another calendar, and certain calendars are employed for particular purposes only. To achieve uniformity and standardisation, the legislation intended that a single, common calendar should govern both the period that defines the tenancy month and the date on which rent becomes payable. Rule 4, the Court said, provided a method for adjusting rent recovery when a calendar other than the British Calendar was used, and it expressly limited the rent chargeable per month under the British Calendar so that it could not exceed the rent chargeable per month under the previously followed calendar. Because the Act contains no specific clause authorising any alteration to the tenancy month itself, the Court held that a mere change in the rent‑recovery schedule could not be construed to alter the tenancy month. A tenancy may be created on a month‑to‑month basis, yet the rent may be recoverable on a different schedule, such as quarterly, half‑yearly, or annually, depending on the contractual terms. Accordingly, there is no legal rule that requires the month used for rent recovery to be synchronised with the month that defines the tenancy. The tenancy must commence on a particular date, and consequently the tenancy month runs from that date according to the calendar chosen by the parties. The month of tenancy, as determined by that calendar, is fixed by the lease contract at the beginning of the tenancy. Whether the lease is measured by the British Calendar or by any other calendar, it begins on the agreed commencement date and ends at the expiry of the agreed period according to the same calendar. Even a lease governed by the British Calendar may start on any intermediate day within a calendar month. Section 27, the Court observed, does not state that the tenancy month must begin on the first day of a regular month; it merely requires that rent be recovered according to the British Calendar without stipulating the first day of the month for that purpose. Therefore, if a tenancy commences on the 14th of a month, the tenancy month extends from the 14th of that month to the 13th of the following month under the British Calendar, and rent is recoverable for that exact period. No provision of the Act interferes with such a contractual term, and consequently the Court concluded that the provisions of Section 27 of the Act and Rule 4 of the Rules do not transform a tenancy month based on an Indian calendar into a tenancy month based on the British Calendar.

The period of a month under the British Calendar runs from the 14th day of one month to the 13th day of the following month. Accordingly, the landlord is entitled to recover rent for that specific interval of a month, namely from the 14th to the 13th of the next month. No provision of the Act interferes with any such term of the contract, and therefore the contractual month remains unaffected. Consequently, the Court held that the provisions of section 27 of the Act and rule 4 of the Rules do not convert the tenancy month measured by the Indian Calendar into a month measured by the British Calendar. The High Court, in its judgment, observed that counsel for the appellant was unable to cite any authority supporting his contention. However, the Court’s attention was drawn to two decisions of the Bombay High Court, namely Civil Revision Applications Nos. 247 of 1956 and 1583 of 1960. These cases were decided by Judges Dixit, Tendolkar and Patwardban on February 22, 1957 and August 16, 1961 respectively. The later decision was required to follow the earlier decision, maintaining consistency in legal reasoning. In the earlier case, the notice to quit demanded that the tenant surrender possession on May 1, 1953. The tenancy in that case had commenced according to the Hindu Calendar, while the notice was issued according to the British Calendar. The High Court held the notice to be valid, agreeing with the argument that section 27 of the Act had the effect of transforming a tenancy originally based on the Hindu Calendar. The Court further stated that the tenancy must be deemed to be one according to the British Calendar from the first day of the month to the end of the month. The learned judges articulated this principle, stating: “Now rent is payable for occupation by the defendant and therefore the tenancy must be deemed to be one according to the British Calendar from the first of the month to the end of the month”. They further added that section 27 of the local law makes the tenancy conform to the British Calendar. The Court of this case disagreed with that view, holding it to be incorrect and without legal basis. Accordingly, the Court upheld that the notice to quit issued to the appellant was valid, as determined by the lower Court, and that it defined the appellant’s tenancy. The second contention raised by the appellant, that payment of arrears within two months of the institution of the suit would prevent forfeiture of the tenancy, was rejected on the basis of section 12 of the Act. Sub‑section (2) of section 12 authorises the landlord to commence an eviction suit on the ground of non‑payment of rent after the expiry of one month from the service of a notice demanding the arrears. Clause (a) of sub‑section (3) empowers the Court to pass a decree of eviction where the rent is payable monthly and there is no dispute as to the standard rent. It further requires that the arrears amount to six months and that the tenant has failed to make payment within one month of the notice.

In this case, the Court observed that the notice of demand had been served. It held that the tenant’s payment of the arrears after the suit was instituted did not alter the tenant’s liability to be evicted nor did it affect the Court’s authority to grant an eviction decree. The Court acknowledged that sub‑section (3) paragraph (a) of the statute uses the words “the Court may pass a decree for eviction in any such suit for recovery of possession”. However, the Court explained that this wording did not give the Court discretion to refuse to pass an eviction decree when the other statutory conditions in that clause were satisfied, contrary to the appellant’s argument. The Court noted that the landlord acquired the right to recover possession at the moment the tenant failed to pay rent, and that this right was not removed by any other provision of the Act. Consequently, the Court stated that it was legally bound to issue the decree once the requirements of sub‑section (2) of section 12 were fulfilled. The Court further compared paragraph (a) with paragraph (b) of sub‑section (3), which governs suits for eviction that do not fall within paragraph (a). Paragraph (b) provides that no eviction decree shall be passed if, on the first day of hearing or on another date fixed by the Court, the tenant pays or tenders the standard rent due, continues to pay or tender the rent regularly until the suit is finally decided, and also pays the costs as directed by the Court. This comparison showed that the legislature had created a specific benefit for a tenant who paid arrears during the pendency of the suit, and that benefit was limited to the situation described in paragraph (b). In view of this reasoning, the Court concluded that it possessed no discretion and was required to pass an eviction decree whenever the conditions of sub‑section (2) of section 12 were met. As a result, the Court dismissed the appeal, ordered costs against the appellant, and recorded the appeal as dismissed.