Farzand Ali and Another vs Motilal Choudhry

Jwala Prasad, J.—These applications arise out of two suits brought by the plaintiff for rent of a house occupied by the defendants. Suit No. 250 of 1920 is in respect of rent from June to August 1918 and Suit No. 754 of 1920 is in respect of rent for September 1918 to July 1919.

The only point involved and raised in both the cases is--at what rate the plaintiff is entitled to recover rent of the house in question from the defendants. The defendants were let into the occupation of the house at a monthly rent of Rs. 1 12 and be was getting the same for the last 20 to 22 years at the said rate of rent. The plaintiff sent a registered letter to the defendants, but they refused to accept it and it was returned to the plaintiff and has been Sled in this Court and marked Exhibit 2. The letter was to the effect that the defendants were to vacate the house by the 31st of May 1918; in default the plaintiff would charge rent at the rate of Rs. 5 per month from 1st June 1918.

The defendants did not vacate the house and continued to occupy it. Suit No. 250 of 1920 was brought on the 22nd May 1920. The prayers were: (1) to eject the defendant and (2) to recover from the defendant the enhanced rate of rent at Rs. 5 per month. The notice given by the plaintiff to vacate the house was illegal and invalid u/s 106 of the Transfer of Property Act, which requires a fortnight''s notice for ejecting a tenant, whereas the notice in question gave the defendants a mush less time. The prayer for ejectment was consequently withdrawn by the plaintiff.

The question for determination is--whether the plaintiff is entitled to recover rent at the rate mentioned in the notice in spite of its invalidity. The Court below has answered the question in the affirmative and decided it in favour of the plaintiff the reason given by the Court is that, although the notice was invalid for ejecting the defendant, yet as he chose to remain in the occupation of the house, be must be held to have agreed "in a way to pay Rs. 5 as entered in the notice" instead of vacating the house. The Court goes on to say that if the defendant had not agreed to pay Rs. 5, "he would have vacated the house." This is, to my mind, begging the whole question. The notice required the defendant to vacate the house. The enhanced rate of Rs. 5 was stated only as a penalty for not vacating it The defendant did not accept the notice inasmuch as the notice was invalid and, therefore, ha did not incur the penalty. As the defendant could not be compelled to vacate the house, 1 do not see on what principle can he be asked to pay the penalty prescribed for the non compliance of an invalid notice. If the notice were a notice of enhancement of rent in that case it was for the defendant to vacate the house in case he did net agree to pay the enhanced rent and his continuing to remain in the occupation of the house would have amounted to an acceptance of the terms offered by the plaintiff. But in that case also the Court would have to decide whether sufficient notice was given for the defendant to arrange for the removal of his articles from the house and vacate it. But the notice of ejectment is quite distinct from the notice of enhancement. In the former the lease is determined by the notice and thereafter the defendant becomes a trespasser. If in the notice an alternative term enhancing the rent from the date mentioned in it is proposed on which the defendant is required to vacate the premises'', the continuance of the tenant to hold over implies an acceptance of the term proposed. As held by the majority of the Court of Appeal in the case of Ahearn v. Bellman (1879)4 Ex. D. 201 : 48 L.J. Ex. 681 : 40 L.T. 710 : 27 W.R. 923, a notice to quit, if clear and certain so as to bind the party, is not vitiated by adding to the notice the term that should a tenant retain possession of the premises, an enhanced rent will be payable. But the latter term only gives option to the tenant of a new contract Dee v. Jackson (1779) 1 Dougl. 175 : 99 E.R. 115 and Doe d. Lytter v. Goldwin (1841) 2 Q.B. 148 : 10 L.J.Q.B. 275 : 1 G. & P. 463 : 114 E.R. 57 : 57 R.R. 621. But when the lease is not determined on account of the invalidity of the notice, no new term will be considered to have been offered or accepted and the old term will be considered to have continued. Therefore, in the present case there was no new contract between the parties and no new terms by way of an enhancement can be imposed upon the incidence of the tenancy. Sections 106 and 111(h) of the Transfer of Properly Act are clear on the point. u/s 106, the lease of a monthly tenant is determined by a fortnight''s notice terminating with the end of a manth of the tenancy, and not otherwise. In order to determine a lease, notice u/s 106 must be duly and properly given, vide Section 111(h).

In the present case the Courts below have held that the notice was invalid and hence there was no determination of the tenancy and the defendant did not become a trespasser at all, and hence could not be ejected: vide the decision of Sir Comer Petheram, C.J. in the Full Bench case of Bradley v. Atkinson 7 A. 899 : A.W.N. (1885) 288 : 4 Ind. Dec. 990, There was, therefore, no offer of enhancement. The mere occupation of the house is not an acceptance of the terms of enhancement mentioned in the notice. The plaintiff is not, therefore, entitled to recover rent more than what he used to receive previous to the alleged notice in question. the case is very similar to that of Shakhi Chand v. Ram Chandra Marwari 15 Ind. Cas. 906 : 16 C.L.J. 561 Mukherjee and Beach-croft, JJ. In that case, the authorities relied upon by the opposite party, Kikabhai v. Kalu Ghela 22 B. 241 : 11 Ind. Dec. 743 and Adolple Shrager v. Emma Price 12 C.W.N. 1059 (a Single Judge decision'''', have been considered, These cases held that in certain circumstances notice to quit was valid and there was termination of the tenancy. They had nothing to do with the enhancement of rent, as in the present case. Here the Court below has held that the notice was invalid and there was to determination of the tenancy. Therefore, the rulings relied upon are inapplicable to the present case. The case is governed by the decision in the case of Shakhi Chand v. Ram Chandra Marwari 15 Ind. Cas. 906 : 16 C.L.J. 561. I entirely agree with the view expressed in that case and the reasons given there in support thereof.

I accordingly think that the Courts below were wrong in decreeing the plaintiff''s suits at the rate of Rs. 5 per month The decrees of the Courts below in both the suits are set aside, and in lieu thereof a decree favour of the plaintiff in both the suits will be passed for rent at the rate of Rs.1-12, with proportionate coats throughout.