Mq4. SUPR]jlME OOUR'I' REPORTS [1963] BHAIYA PUNJALAL BHAGWANDDIN v. DAVE BHAGWATPRASAD PRABHUPRASAD (J.L. KuuR, K.C, DAS GUI'TA, and RAGHUBAB DAYAL JJ,) Rent (]?nt~l-Eje,ctment for non-payment of arrear• of
rent-Delerm•nation of tonancy, whether noc .. sary before filing of suit-Notice to quit, validity of Tenancy, according to IndU… Calendar-Whether converted lo OTte uTtder British Calendar- Relief against fdrfeiture-Bombay Rents, Hotel and Lodging
House Rate• Control Act, 19'7. (Bom. LVII of 19!17) a. 12( 3)(a). The appellant was a tenant of the respondents in respect of certain residential premises. The tenancy was by the Indian Calendar. The appellant did not
pay arrears of rent for about 5 years and the landlords gave him notice to f{Uit as he was in arrears of rent for more than 10: months and asked him to quit on the last day of the Indian month. On the appellant's failure to comply the landlords filed a suit for ejectment under s. 12(3)(a) of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947. Within two
months of the institution of the suit the appellant deposited the arrears of rent. The suit for ejectment was decreed. The appel- lant contended that in view of•. 27 of the Act and r. 4 the tenancy was deemed tojbe by the British Calendar· and the
notice to quit expiring ,with the end of the Indian month was invalid and that he should have been relieved ·against forfeiture. The landlords contended that no notice to quit was necessary for filing the suit, that the notice given was valid and that there could be no relief against forfeiture.
Held, that the suit for ejectment was rightly decreed. It was incumbent upon the landlords to determine the contractual tenancy by a proper notice before they could file a suit for the ejeccment of the tenant on the ground of non. payment of arrears under s. 12(3) (a) of the Act. The Act
did not create a new right in the landlord to evict the tenant for non-payment of rent; the right to evict was dependent upon a proper termination of the tenancy. The Act gave extra protection to the tenant which he could avail of after hia tenancy was determined. There was nothing in s.12 of the
Act which overrode the provisions of the transfer of Property Act. The right to possession had to be distinguished from 3 S.C.R. 'N 'the right to recover possession. The right to possession arose on the determination of fhe tenancy and the right to recover possession arose under the Act after the right to possession had arisen.
Dr. K.A. Dhairyawan, v. J.R. Thakur, [1959) S.C.R. 799, Raghubir Narayan Lotlikar v. Fernandiz, (1952) Bom. L.R. 505, Karsandas v. Karsanji, A.I.R. (1953) Sau, 1_13, •Meghji Lakhamahi v. Furniture Workshop, (1954) A.G. 80 and Ebner v. LaseeUes, ( 1928) 2 K.B. 486, referred to.
Rai Brij Raj Krishna v. S.K. Shaw and Bros. [195l]S.C.R. 145 and Shri Hem Chand v. Shrimati Sham Devi, I.L.R. ( 1955) Punj. 36, distinguished. The notice to quit was a valid notice. The original
tenancy was . according to the Indian Calendar and there …. was nothing in s. 27 of the Act or in r.4 which converted it into a tenancy according to the British Calendar. Section 2 7 and r .. 4 merely provided for the recoverability of rent ace ording to the British Calendar.
In view of the provisions of s.12 there could be no relief against forfeiture in the presmt case, Section 12(3)(a) empowered the court to pass a decree for eviction in case of rent payable month by month if tbe arrears of rent had
_,been for a period of six months and the tenant had neglected to make the payment within a month of the service of the notice of demand. The payment of arrears after institution of the suit did not afJ'ect his liability to eviction and the court's power to pass the decree. The Court was bound to
pass the decree when the requirments of the section were satisfied. Where the legislature intended to give relief against forfeiture it made a specific provision. Civrr. APPELLATE JURISDICTION: Civil Appeal
No, 209 of 1962. Appeal by epeoia.l leave from .the judgment and order dated October 10, 1961, of the Gujarat High Court in Civil . Revision Application No, 378 of 1960. R. Ganapathy Iyer, B,R.G.K. Aokar and K.L •
…./Jatki, for the appellant. M. S. K. Saatri and M. S. Narasimhan, for respondents. Bhaiya Punja/al Bltoqwanddin v. Dave Bhagwatprasatl Prablwprasad 1~62 Bt.ai a Punja/al Rh~guanJdin
v. Dave BhfI:iwqlft~,as,ad Prabh'l(P'.flsad 1 aghuliar Doyal J. · SUPREME COURT RE_I'Ol!-TS (1963) 1962. M;ay 4. The "jµdgment of the Court was delivered by RAGHUBAR DAYAL, J.-This
appeal, by sp~cial leave, is against the judgment and decree of the. High Court of Gujarat. The appellant was a tenant of certain resi- dential premi~es,situate at Anand, and belonging to
the respondents-landlords. Under a contract between the parties, he held them at Rs. 75/- 'per mensem according to Indian Calenda~. In 1951 – the appellant applied for fixation of standard rent.
·On-March 31, 1\154, the standard rent was fixed at • H~. 25/- per mensem. ·The appellant did not pay the .arrears of rent froni July 27, I 949, to July 5, 19;'i4. On. Octoper lp, Hl54, the landlords gave
hiin notice to quit the premises stating therein that rent for over, six months was in arrears and that he was to quit on the last day of the month of tenancy which was Kartak Vad 30 of Samvat
Y~ar 201,1. T}ie appellant neither paid the arrears of.rent nor.vacated the premises. Un December 16, 1954, the respondents filed the suit for eject- ment basing their claim for ejectment on the pro-
vifjiO!JS of ·s.' 12(3) (a) of the BomJ:>ay Rents, Hotel aq(l Lo~gi!Jg House ratef3. Cqntrol Act, 194 7 (Born. I.VII of 194 7), hereinafter called the Act. Within two months of the institution of the
, .,, suit, t'.he •. appellant deposite'd an _amhunt of Rs. 1,075/- in Court, towards arrears of rent and, wifJi. .. tj;ie perwjssion of the, Court, the respondents wi~Jidr.e;w a sµm of Rs. 900/-
which was' the ampunt . due for arrears up to that time. The Trial Court decreed the suit for ejectment together with arrears of rent for three years a.nd costs. An appeal against the decree for ejyotment was di~
missed by the appellate· Court. The revision to \—-• thy Jii~p •9Rlfrt . )Vas , also q.µ,.suo.c1i~sful, and, it is 3 s.c.R. SUPREME OOURT REPORTS against the order in revision that this appeal has
been preferred. Bhai~a Punjalal Bhagwanddin Four points were urged before the High Court: (1) That·the month of tenancy was not by the Indian Calendar, but was by the British Calendar
and that the Courts below had ignored evi<len<-e in that regard. (2) Assuming that the month of tenancy was by the Indian Calendar according to. the lease, it would be deemed to be by the British
Calendar in view of the provision of s. 27 of the Act. (3) As the arrears· of rent had been paid with- in two months of the institution of the suit, the appellant be deemed to be ready and willing to
pay the rent and that therefore the landlord was not entitled to recover possession of the premises. (4) It is discretionary with the Court to pass a decree for ejectment in a case under S· 12(3) (a)
of the Act, as the expression used in that sub- clause is 'the Court may pass a decree for eviction in any such suit for recovery of possession.' Davt Bhagwatprosad The High Court held that the findings of the
Courts below that the month of tenancy was by the Indian Calendar was based on a considera- tion of the evidence on the record and there- fore was binding. It also held that it could
not be deemed to be by the British Calendar in view of s. 27 of the Act which provided that the rent would be recovered according to the British Calendar, notwithst!l.nding anything
contained in any contract and did not provide for the tenancy to be by the month according to the British Calendar even· if the t"enancy under the Contract was bv a different Calendar.
The High Court also held that the tenant's deposi- ting arrears of rent within two months of the institution of the suit would not justify holding that the tenant was ready and willing to pay the
amount of standard rent and that therefore the landlord was not entitled to recover possession Prabhuprasad Raghubar Dayal J; 196B Bhaiya Punjalal Bhagwanddin Dave Bh1gwalprasarl Prabhupraaad
Raghubar Dayal J. of the premises in view of sub-s.(l) of s. 12 of the · Act. Lastly, the High Court held that the Court'I' is bound to pass a decree for ejectm&nt under s.12 (3) (a) if it be proved that the rent was payable
by the month, that it had been. in arrears for a period of six months and that the tenant failed to make payment of the arrears until the expira- tion of the period of one month after the service r
of notice referred to in sub-s. (2) of that section. As a result, the revision was dismissed. Two points have been urged for the appel- lant in this Court. One is that th:e month of the
tenancy was to be by the British Calender in view of s. 27 of the Act and r. 4 framed thereunder, and that there could be no forfeiture of the tenancy ~ when the arrears of rent had _been paid within two
months of the institution of the suit. The significance of the first question is that . if the appellant's tenancy was to be by the month of the British Calendar, notice to quit was a. bad
notice as it did not comply with the requirements of s.106 of the Transfer of Property Act and that therefore there had been no determination r- of the tenancy which is a condition precedent for
the landlord being entitled to possession and, con. sequently, for instituting a suit for ejectment on any ground whatsoever, including the ground of rent being in arrears. The first point to determine, therefore. is
whether it is a condition precedent for the insti- tution of a suit by a landlord for the recovery of possession from a tenant who has b~en in arrears of rent that there had been first a determination
of the contractual tenancy. If it is not a condition precedent; it will not be necessary to determine whether the month of the tanancy continued to · be according to th() Indian Calendar according to r-
.~he contraot1 or had bee~ a,ooordin~ to tµe Britµi~ _,,. ….,. ' 3 S.O.R. S'EJ'PREME OOURT REPORTS Calendar in view of s. 27 of the Act, when a tenancy is created under a contract between the landlord
and the tenant, that contract must hold good and continue to be in force till, according to law or accordin~ to the terms of contract, it comes to an end. Section III of the Transfer of Property Act
state11 the various circumstances in which a lease of immovable property determines. Clause (h) provides for the determination of the lease on the expiration of a notice to determine the lease, or
to qoit, or of intention to quit, the property leased, duly given by one party to the other. There is nothing in the act which would give a right to the landlord to determine the tenancy and thereby to
get tile right to evict the tenant and recover possession. This Act was enacted for the purpose of controlling the rents and repair of certain premises and of evictions due to the tendency of
landlords to take advant.age of the extreme scarcity of premises compared to the demand for them. The Act intended therefore to restrict the rights which the landlords possessed either for charging
excessive rents or for evicting tenants. A tenant stood in no need of protection against eviction by the landlord so long as he had the necessary protec- tion under the terms of the contract between him
and the landlord. He could not be evicted till his tenancy was determined according to law and therefore there was no neceesity for providing any further protection in the Act against his eviction
so long as his tenancy continued to exist under the contract. Sub-section( I) of s. 12 of the Act provides that ·a landlord shall not be entitled to the recovery of possession of any premises so long as the tenant
pays, or is ready and willing to pay, the amount of the standard rent and permitted increases, if any, and observes and performs the other conditions of the tenancy, in so far as they are con~istent witll ~Ii~
196! llhaiya Punjal•1l Bht1Jiwanddi1. v. Dave IJhagwatprasa Prabl.uprasad provisions of the Act. It creates a restriction on Rha!Ja Pun],fol the landlord's right to the recovery of possession.
Bh,g1"anddin When the landlord will have such a right is not D&,.Bha~"watpwsad. provided by it. Ordinarily, the landlord will have Pdibhup,.sad a right to recover possession from the· tenant when
Raghubar Ddyal J, the tenancy had deter:mined. The provisiom:r of this section therefore will operate against the land- lord after the determination of the tenancy by any of the .modes . referred to in A, III of the Transfer
of property Act. What this section of the Act provides is that even after the determination of the tenancy, a landlord will ·not be entitled to recover possession, though a right to receiver posses-
sion gets vested in him, so long as the tenant com- plies with what he is required to do by this section. It is this extra protection giveu by this section which will be useful to the tenant after his tenancy
has determined. The section does not create a new ri11ht in the landlord to evict the tenant when the tenant does not pay his rent. It does not say so, and therefore, it is clear that a landlord's tight
to evict the tenant for default in payment of rent will arise only after the tenancy is determined and the continued possession of the tenant is not account of the contractual terms but on account of the
statutory right conferred on him to continue in· possession so long as he complies with what sub-s. l requires of him; The landlord is restricted from evicting ·the tenant till tbe tenant does not do
what he is required to do for peaceful possessiOn under sub s.( 1) of s. 12. We are therefore of opi- nion that where a tenant is in possession under' a lease from the landlord, he is not to be evicted for
a cause which would give rise to ·a suit for recovery of possession under s. l 2 if his tenancy has not been determined already. It follows that whenever a tenant Bets in a way which would remove the
bar on the landlord's right to evict him it is neces- sary for the landlord to serve him with a notice …,,. . 3 S.C.R. determining his tenancy. and also serve him with a91otioe under sub-s.(~) of s. 12 of the Act.
In this connection reference may be made to what was stated in Dr. K. A. Dhairyawan v. J. R. Thakur (1). In that case, the landlord granted a lease of a. pa.reel of land to the lessees for a certain
period. The lessee was to construct a building on that land. On the termination of the lease, the lessees were to surrender and yield up the demised premi11es including the building to the lessors.
After the expiry of the period of tha lease, the lessor sued for a declaration that they were entit· led to the building and were entitled to claim possession of the same. The letlsees plead1.,d that
they were also lessees of the building and were protected from eviction therefrvm by the provisions of the Bombay Rents, Hotel and lodging House Control Act, 1947, and that the covenant. for delive·
ring possession of that building could not be enfor- ced as the lease in respect of the land could not be terminated on account of the protection given by the Act. It was held that under the lease there was a
demise only of the land and not of the building, and, consequently, the provisions of th~ Act, dit not apply to the contract ofdelivery of possession of the building. It was contended that even in such
a case, possession of the building could not be given until the lease had be11n determined, which in law, could not be determined so long as the respondents oould not be evicted from the demised land of
which they were tenants within the meaning of the Act. This contention was repelled. It was said at p. 808: "This contention is without force as the provisions of the Act do not provide for the
continuation of a lease beyond the specified period stated therein. .All that the Act does · is to · give to the person who continues to (I) [1959] S.C.R. 799. 191JZ BhaiJ• Punialal
Bhagw2nddin v. Dave Bhngwalprasad Probhuprasad Raghubar Dayal J. Bhai1a Punjalal _ Bhogwanddin v. Dave Bhagwatprasad Prabhuprasai Raghubar iJOyal J. remfl.in in possession of the land, although the
period of the lease had come to an end, ;j;he status of a statutory tenant. That is to say, although the lease had come to an end but the lessee continued to remain in possession without the consent of the lessor, he would
nonetheless be a tenant of the iand and could not be evicted save as provided by the Act." This means that the provisions of the Act did not affect the terms of the lease according to which the
lease came to an end 11.fter the expiry of the period for which it was given. The leesre's possession after the expiry of the lease was by virtue of the provi- sions of the Act and not by virtue of the extension
of the period of the lease. It is a necessary con- sequence of this view that the restriction on the landlord's right to reeover possession under s. 12 of the Act operates after he haR determined the tenancy
and that till then the rights between the parties with respect to eviction would be governed by the Ordi- nary law. It was said in Ragbubir Narayan Lotlikar T, Fernandez ('). (Born. Rents, Hotel and Lodging HoU!le
Rates Control Act (Bom. Act LVII of 1947): "In our opinion, s.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 Aot a landlord becomes entitled to possession when there is a determination of tenanoy. A tenanoy c&n be determined in any of the modes laid down in s. III; and once the tenancy is determined,
under s.108 (q) the lessee is bound to put the lessor into possession of the property. It (I) (19:i2) 54 Born. r.R. 505, 511. 3 s.c.R. 196f Bhaiyo Punjalol Bhogwanddin v. is, therefore, only on the determination of the
lease or the tenancy that the landlord be- comes entitled to the possession· of the pro- perty, and when he has so becomes entitled to possession, if he files a suit for a decree for
possession, then s.-28 applies and such a suit can only be filed in the Small Causes Court." Dave BhagwatproHl Prabhupr••ad Again it was said at the same page: "Section 12 postulates the
fact that 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 tho Legislature stepa in and prevents the enforcement of his right, by the protection . which it gives to the tenant. NI) question of the application of s. 12 can arise if a landlord
is not entitled to possession at all." A similar view w0s expressed in lforsandas v. Karsanji (I) It was said: " .•. that a tenancy must be duly deter- mined either by a notice to quit or by efflux
of time or under one or the other of the ch.uses of s. III, T. P, Act before a landlord can one to evict his tenant on uny of the grounds contained in the clauses of s.13 (I) of the Bombay Rent Act as applied to SJJ.U·
rashtra. 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 cases reported as Rai Brij Raj Krishna v.
S. K. Shaw and, Brothers (2) and Shri Hem Chand v. Shrimati Sham Devi (3) are distinguishable. In the former case, s.11 of the Bihar Buildings (I) A.t.R. (1953) Sau. 113, 118. \2) [1951] S.C.R· 145, 150· ( 3) 1.L.R. (1955) Punj. 36.
Raghubar Dayal J, !Jhai~a· Puiijalal '·' · Bhagi.vanddin v. -Oave Bllagwatpraead ·i · !rabhuprasad Raghubar ·Dayal J. SUP~El\IE COURT REPORTS (1963] (Lease, Rent and Eviction) Control Act, 1947, r
(III of 1947), ca'lle for interpretation by this Court and, in that connection it was said : "Section 11 beings with the words 'Not withstanding anything contained in any agree· ment or law to the contrary', and hence any
attempt to import the provisions relating to the law of trarisfer of property for the inter- pretation of the section would seem to be out of place. Section 11 is a self-contained sec-
tion, and it is wholly unnecessary to go outside the Act for determining whether a tenant is liable to be evicted or not, and under what conditions he can be evicted: It clearly provides that a tenant is not liable
to be evicted except on certain conditions, and one .of the conditions laid down for the eviction of a month to month t~nant is non· payment of rent.'' In the present case, s. 12 of the Act is differentl.Y
worded and cannot therefore be said to ·be a complete Code in itself. There is nothing in it which overrides the provisions of the Transfer of Property Act. Shri Hem Ghand's Gase (1) dealt with the
provisions of s.13(i) of the Delhi and Ajmer Merwara Rent Control Act XXXVIII of 1952. · This section provided that no decree or order for the recovery of possession of any promise11 shall be
passed by any court in favour of the landlord against a tenant, notwithstanding anything to the contrary contained in any other law or ~ny con· tract. It was held that the Rent Control Act
provided the procedure for obtaining the relief of ejectment and that being so the provisions of s. 106 of the Transfer of property Act had no rele- vance, in considering an application for ejectment
(I} I.L.R. (1155) Punj 36. 3 S.C.R. SDPREME COURT REPORTS -.._, made under that Act. There is nothing in the Act corresponding to the provisions of s. 13(1) of the Delhi Ajmer Merwara Act. It is unnecessary for
us to consider whether Shri Hem Ohand's case (1) was rightly decided or not. In Meghji Lakhamahi and Brothers v. Furniture Workshop (2) the Privy Council dealt with an appli- _ _, cation for possession under s. 16 of the Increase
of reQt (Rebtriotion) Ordinance, No. 23 of 1949 (Kenya) whose relevant portion is : ''(l) No order for the recovery of posses- sion of any premises to which this Ordinance applies, or for the ejectment of a tenant
therefrom, sh!\11 be made unless … \k) the land- lord requires possession of the premises to enables the reconstruction or rebuilding thereof to be carried out … " It was said :
"In the pr1~sent case the only question is whether section 16(i) (k) is so framed as to envisage or make provision for such an order. An application for possession under section 16 presupposes that the contractual
tenancy of the demised premises has been determined. It is not possible to determine it as to part and keep it in being as to the . remainder. In the present case the tenancy of the entire demised premises had been
determined." The right to possession is to be distinguished from the right to recover possession. The right to possession arises when the tenancy is deter- mined. The right to recover possession follows
the right to possession, and arises when the person in possession does not make over (l) 1.L.R. (1955) Punj. (2) U95At) A.C. BO. 90. J96:t Bhaiva punjaial B hagwandd in v. Dav• Bhagwitprasad
Prabh•prasad. Raghubar z::ayal J• . J9tl ~hai'a Punj,.,laZ Bhagwanddin v. Dav6 Bhogwatpra•a' · Prabhuprosad Rt11J1t'ubar Dayal J • possession as he is bound to do under law, and there arises a neceesity to recover possession
through Court. The cause of action for going to Court to recover possession arises on the refusal of the person in possession, with no right to possess, to deliver possession. In this context, it is clear
that the· provisions of s. 12 deal with the stage of the recove1 y of possession and not with the stages prior to it and that they come into play only when the tenancy is determined and a right to possession
has come in existence. Of course, if there is not contractual tenancy and a person is deemed to be a tenant only on account of a statute giving him right to remain in possession, the right to posses-
sion arises on the person in pos~ession acting in a manner which, according to the statute, gives the landlord right to recover possession, and no ques- tion for the determination of the tenancy arises,
as really speaking, there was no tenancy in the ordinary sense of that expression. It is for the • sake of convenience that the right to possession, by virtue of the provisions of a statute, has been
referred to as statutory tenancy .. In Ebner v. Lascelles ( •) It was said, dealing with the provisions of Increase of Rent and Mort- gage Interest (Bestrictions) Act, 1920 (IO and 11
Geo. 5, c. 17): "lt has been truly said that the main rights conceded to a tenant under these Acts are, first a right to hold over or 'status of irremovability,' and, next, a right not to have.
his rent unduly raised. The right to hold over is a right that comes into existence after the expiration of the contractual tenancy. During the contractual tenancy the tenant, being in possession under the protection of
his contract, has no need of the protection of the Act to enable him to retain possession, but (I) (1928) 2 KB. 486, 497. -I 3 s.c.n .. SUPR!™:m COURT R:mPORTS S25 during that tenancy the Act protects him in
reg trd to· rent by providmg that, notwith- standing any other agreements which he may make with his landlord as to rent, he is not to be charged a higher rent than the law allows, and if he is charged a higher rent than
that he can have it reduced. The right to hold over· after the termination of the con· tr actual tenancy, and the right to protection during the contractual tenancy are two rights
which must be kept distinct from each other.'' It may be mentioned that s. 5 of thfl afore- said Act of 19::-:0 provided that no order or judgment for the recovery of possession of any
dwelling house to which the Act applied or for the ejectment of a tenant therefrom would he made or given unless the case fell within one of the clauses mentioned in sub. s.(1). We are therefore of opinion that so long as
the contractual tenancy continues, a landlord can- not sue for the recovery of possession even if s.12 of the Act does not bar the institution of such a suit, and that ir.i order to take advantage of this
provision of the Act he must first determine the · te:::!ancy in accordance with the provisions of the Transfer of Property Act. It is now necessary to determine whether a notice served on the appellant to quit the tenancy
on October 16, 1954, the last date of the month according to the Hindu Calendar, as October 16 happened to be Kartik Vad 30 of S. Y. 2011, the tenancy having commenced from Kartik Sud 1 of
S.Y. 1963. It is not disputed that originally the tenancy was according to the Hindu Calendar. The contention for the appellant is that this month to month tenancy, according to the Hindu Calendar, was
Bhaira Punjalr..Z Bhaiwanddin v. • Dau1 Bhagwatprasad Prabhuprasad Raghubar Dayal J. Bhai,Ja Punja/al Bhagwanddin DatJ1 Bltagwatprasatl Prabhuprasad Bazhubar DaJ·al J. SUPHE1\fE COURT REPORTS (1963]
converted to a similar tenancy according to the Bri- tish Calendar in view of the provisions of s.27 of the Act.and r. 4 of the Rules framed under the Act. Section 2 7 of the Act reads:
"(I) Notwithstanding anything contained in any Jaw for the time being in force or any contract, custom or local usage to the comrary, rent payable by the month or yrnr or portion of a year shall be reco-
vered according to the British Calendar. (2) 'lhe State Government may prescribe the manner in which rent recoverable accor- ding to any other calendar before the coming into operation of this Act shall be
ca,JcuJated and charged in terms of the Brit.ish Calendar." Rule 4 of the Bombay Rents, Hotel and Lodging House hates Control Rules, 1!!48, hereinafter called the Rules, reads: "Calculation of rent according to British
Calender.-If, before the Act comes into force, the rent in respect of any premises· was chargeable according to a calendar other than theBritish Calendar, the landlord shall recover from the tenant rent for the
broken period of the month, year or por- tion of the yeax· immediately preceding the date on which the Act comes into force, proportionate amount according to the aforesaid Calendar month, year or
portion of the year at which the rent was then chargeable. After such date the landlord shall recover rent according to the British Calendar. The rent charge- able per month according to the British
…,. -i 3 S.C.R. SUPRF.ME COURT REPORTS Calendar shall not exceed the rent which was chargeable per month according to the other calendar followed immediately before such date." There is nothing in the aforesaid rule or the section
about the conversion of the month of the tenancy from the month according to the Hindu calendar to the month according to the British Calendar. They only provide for the recoverability of the rent accor-
ding to the British Calendar. Since the enforce- ment of the Act on Fabruary 13, 1948, the monthly rent would be for the month according to the British Calendar. The monthly rent could be recovered
after the expiry of a. month from that date or the rent for the period from the 13th February to the end of the month could be recovered at the monthly ra.te and thereafter after the expiry of each Calendar
month. There is nothing in the section or the rule in regard to the date from which the month for recovery of rent should commence. This provision was made probably, as a corollary to the statute provi-
ding for standard rents. Standard rents necessitate standard months. There are a number of calendars in use in this country. The Hindus themselves use . several calendars. The Muslims use a different one.
Some calendars are used for particular purposes. It appears to be for the sake of uniformity and stan- dardisation that a common calendar was to govern the period of the month of the tenancy and the date for
the recovery of the rent. Rule 4 provided a proce- dure for adjustment of the recovery of the rent according to a calendar other than the British Calen- dar, and further provided that the rent chargeable
per month, according to the British Calender, would not exceed the rent which was chargeable per month according to the other calendar followed immedi- ately before that date. In the absence of any speci-
fic provision in the Act with respect to any altera- tion to be made in the period of the month of the Bhaiia Punjalal Bhagwanddip v. Dave Bhagwatpras•• Prabhuprasad Raghubar Dayal J.
Bhai.Ja Pu11jalrJ-l B/Jagwandd.n · D«vt Blzugwltprnssd Prabhu/J1a8~d Roghub .. r Day11/ J. a2s StJPRll;ME COt:rR1.' REPORTS (198~) ten:i.ncy, it cannot be held merely on the basis of an
:i.lteration in the period for the recovery of rent that the monthly period of tenancy had also been chan- ged. The tenancy can be from month to month and the recoverability of the rent may not be from
month to month and may, under the contract, be based on any period say, a quarter or half year or a year. There is nothing in Jaw to make the month for the period of r(lcovering rent synchronize with
the period of thb month of the tenancy. The ten- ancy must start on a particular date, and, c::mse- quently, its month would be the month from that date, according to the calendar followed. The month
of tenancy according to that calender are settled by contract from the commencement of the tenancy. The tenancy under a lease for a certain period starts from a certain date, be it according to the British
Calendar or any other Calendar. The period of lease. and consequently the tenancy, comes to an end at the expiry of that · period according to the calendar followed by the parties in fixing
the commencement of the tenancy. A lease. even ac- cording to the British Calendar, can start from any intermediate date of the calendar month. There is nothing in s. 27 to indicate 'that the month of the
tenancy to such a lea.se will start from the first of a regular month. Section 27 simply states that the rent would be recovered according to the British Calendar without fixing the first date of
the month as the date from which the month, for the purposes of the recovery of the rent; would be counted. It follows that the month of -the tenancy which commenoes on the 14th of
a month, would be from the 14th to the 13th of the next month, according to the British Calen- dar. The rent would be recoverable with respect to this period of a month. No intereference with
any such term of the contract has been made by any provision of the Act and therefore we hold that the provisions of s. 27 of the Act and r. 4 of a S.C.tt. the Rules, do not in any way convert the month of
the tenancy according to the Indian Calendar to the month of the British Calendar. The High Court said in the judgment that Mr. Parghi, who was appearing for the appellant,. was unable to cite any decision in support of the
contention raised by him. Our attention, however, has been drawn to two cases decided by the Bombay High Court. They are Civil Revision Applications Nos. 247 of 1956 and 1583 of 1960
decided by Dixit and Te11dolkar, JJ and Patwar- dban J., on February 22, 1957, and August 16, 1961, respectively. The latter decision had to follow the earlier one. In the earlier case, the
notice to quit required the tenant to give possession on May 1, 1953. The tenancy had . commenced according to th<;J Hindu Calendar. The notice was given according to the British Calendar. The High
Court held the notice to be valid, agreeing with the contention that the effect of the provisions of s. 27 of the Act was to make the tenancy which was · originally according to the Hindu Calendar, a
tenancy according to the British Calendar. The ratio of the decision, in the words of the learned Judges, is: "Now rent is payable for occupation by the ~efendant 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 ………………… Here is a local law which by section 27 makes the
tenancy as one accordi.tig to the British Calendar". We are of opinion that this view is wrong. We, therefore, hold that the notice to quit issued to the appellant was therefore a valid notice as held by
the Court below and determined the tenancy of the appellant. 1962 – Bhaiya Punja/al Bhagwanddin v. D, v• Bhaflwatp asad Prabl.upr .sad Raghubar DJyal J. 11162 B!tai,Jo Punja/(1.l Bhagwanadin
v. 'Jave Bh'lgwatprosad Prabhuprasad r::ag!.ubar DaJal J, The second contention that, the ap;:ielhnt's having paid the arrears of rent within 2 months of the institution of the suit, there would be no for-
feiture of the tena.ncy has no force in view of the provisionsofs. 12 of the Act. Sub-section (2) permits the lan':ilord to institute a suit for the eviotion of a tenant on the ground of non-payment of rent
after the expiration of one month from the service of the notice demanding the arrears of tent, and cl. (a) of sub-s.(3) empowers the Court to pass a decree in case the rent had been payable by the
month, there was no dispute about the amount of standard rent, the arrears of rent had been for a period of six months and the tenant had neglected to make the payment within a month of the serviee
of the notice of demand. The tenant's paying the arrears of rent after the institution of the suit there- fore does not affect his liability to eviction and the Court's power to pass a decree for eviction. It is
true that the expression used in cl. (a) of sub-s.(3) is 'the Court may pass a decree for eviction in any such suit for recovery of possession', but this does not mean as contended for the appellant, that the
Court has discretion to pass or not to pass a decree for eviction in case the other conditions mentioned in that clause are satisfied. Tbe landlord became entitled to recover possession wheri the tenant
failed to pay rent and this right in him is not taken away by any other provision in the ·Act. The Court is therefore bound in law to pass the decree when the requirements of sub-s-(2) of s.12 are
satisfied. This is afao clear from a comparison of the language used in cl. (a) with the language used in cl. (b) of sub-lf.(3) which deals with a suit for evictfon which does not come within cl.( a) and
provides that no decree for eviction shall be passed in . such a suit if on the first day of hearing of the suit or on or before such other date as the Court may fix, the tenant pays or tenders in Court the
r I""" …_' po:, 3 S.O.R. SUPREME OOCJRT REPORTS standard rent then due and thereafter· continues to pay or tender in Court regularly such rent till the sait is finally decided and also pays costs of the
suit as directed by the Court. It is clear that where the legislature intended to give some benefit to the tenant on account of ·the p'l.yment of the arrears during the pen iency of the suit, it made a
specific provision. In the circumstances, we are of opinion that the Court haa no discretion and has to pass a. decree for eviction if the other conditions ofsub.s. (2) of s. 12 of the Act are satisfied.
The result therefore is thalr this appeal fails, and is accordingly dismissed with costs. Appeal dismissed. MAHABIIt GOPE v. ST ATE OF BIHAR (P.B. G.AJENDR.AGADKAR K. SuBBA. RAo and
J.R. Mu:i>HOLKAR, JJ.) Criminal .L7w -Life convict guilty of constructive murder- Sentence of derith-Legality-lndian Penal· Gode, 1860 (Act 45 of 1860) SS. 34, 149, 302, 303. The appellant along with eleven others was charged and
tried for offences under ss. 147, 302 read with s.34 of the Indian Penal Code. The prosecution alleged that these twelv~ persons fo:med thems~lves into an .unlawful assembly and m prosecution of their common object committed the
offence of rioting armed with deadly weapons assaulted the Cl.ief Head Warder and Watchmen and some of the member in I?rosecution of t_he common object caused the death of the C h1ef Warder. Smee the appellant was undergoing sentence
of imprisonmen~ for life there was. a f~rther charge under s.303. of the Indian Penal Code agamst him. The trial court c0 nv1cted all the accused for the ofl'ences for which they were Bhaiy a Punjalal
Bhagw.anddin v. Dave Bhagwatprasad Pr4b/1uprasad Raghubar D:zyi! J. ,'\-Jay 4