Mohammadi Begum vs Abdul Majid

S.P. Bhargava, J.—The Plaintiff, Mst. Mohammadi Begam, had filed a suit implending Abdul Majid Khan as Defendant No. 1 and the manager of Anwar Khan Mahbub Khan, Biri Merchants, as Defendant No. 2, for the recovery of Rs. 8,850- as being the arrears of rent from 8th of July 1949 up to 8th of June 1952. at the rate of Rs. 250- per month and for ejectment of the Defendants from the two houses referred to in paragraph 1 of the paint. The trial Court passed a decree for Rs. 3,112-8-0 after adjusting the amount of Rs. 1,500- which was paid as advance rent for six months to the Plaintiff on 8-1-1949 from the amount of Rs. 4,612-8-0 which was found due and dismissed the claim for ejectment holding that the notice to quit which was served on Defendant No. 1 was ineffective as he was required to vacate a day before the last date of the month of tenancy. Being aggrieved by he judgment and decree of the trial Court, the Plaintiff has come up in appeal seeking ejectment of Defendant No. 1 from the suit premises and claiming a decree for the whole amount of Rs. 8,850 in lieu of the amount decreed.

The Plaintiff''s claim, as set up in the plaint, was that she purchased two houses belonging to Defendant No. 1 under a sale deed, dated 8-1-1949, executed by Defendant No. 1; that at the time of the transfer of the said houses, Defendant No. 2 was a tenant of Defendant No. 1 but from 8-1-1949, Defendant No. 1 and Anwar Khan Mahbub Khan, both became the tenants of the Plaintiff; that both the Defendants orally agreed to pay Rs. 250- per month as rent of both the houses from 8-1-1949 and paid Rs. 1,500- in advance as rent for six months to the Plaintiff through her husband; that thereafter, they failed to pay any rent to the Plaintiff and so, she obtained permission of the Rent Controller, Bhopal, to file a suit for ejectment of the Defendants. The Plaintiff ultimately brought a suit for ejectment of the Defendants and for arrears of rent as, already stated.

Defendant No. 1 raised various grounds in the written statement and contended that really speaking, the transaction which took place between the parties on 8-1-1949, did not amount to a sale and was merely a mortgage; the Plaintiff agreeing to reconvey the property by a separate document executed on the same date within three years to Defendant No. 1 if he paid back the amount of consideration which was Rs. 15,000. It was pleaded that according to Section 49 of the Code of CPC of the Bhopal State, the Court could not pass a decree allowing profit (rent) at any rate which was higher than 9% of the capital outlay and thus, the Plaintiff was not entitled to the rent as claimed, that is to say at the rate of Rs. 250 per month. It was urged that the notice of ejectment was invalid and consequently, a decree for ejectment on the basis of that notice could not be passed. It was admitted the amount of Rs. 1,500- was paid in advance to the Plaintiff and it was desired that the amount paid also should be adjusted in the manner required by Section 49 of the Code, referred to above.

The trial Court framed 17 issues covering these please As we are presently going to show, most of those issues do not arise for consideration before us. The learned Counsel for the Appellant, Shri B.L. Seth, stated that the agreement of tenancy with Defendant No. 2 was not proved and it was a fact that Defendant No. 2 had vacated the premises occupied by Anwar Khan Mahbub Khan after the termination at his tenancy on 28-2-1951 much before the institution of the suit. The Plaintiff-Appellant therefore, did not press any claim against Defendant No. 2. Many of the issues which concern Defendant No 2, therefore, do not survive for determination;

The trial Court examined the question whether the relationship between the Plaintiff & Defendant No. 1 was that of vendee and vendor or mortgagee and mortgagor on the basis of the transaction which took place on 8-1-1949. Obviously, the document executed by Defendant No. 1 in favour of the Plaintiff reads as an out-and-out sale. It is also admitted that the Plaintiff had executed an agreement to re-convey the property if the sale price of Rs. 15,000 was paid back to her within three years. We, however, propose not to examine this question at all and the parties would be at liberty to agitate this question in proper proceeding if they are so advised. The case before us is based on relationship of landlord and tenant and this relationship could exist between the Plaintiff and Defendant No. 1 whether the Plaintiff is the vendee or mortgagee and Defendant No. 1 is shown to be the vendor or mortgagor.

The matters which arise for consideration are these:

Whether the relationship of landlord and tenant has been proved to subsist between the Plaintiff and Defendant No. 1, as alleged?

Whether the tenancy of Defendant No. 1 was legally determined by the notice (Ex. 1. D-3) which required him to vacate the premises by the 7th of June 1952?

Whether the Plaintiff is entitled to recover rent only at the rate of Rs. 112-8 per month instead of Rs. 250 per month according to the provisions of Section 49 of the Code of CPC of the Bhopal State?

As regards the first question, we may first point out that in the written statement of Defendant No. 1, there is no express denial of tenancy nor is this fact denied that Defendant No. 1 agreed to pay Rs. 250 per month by way of rent to the Plaintiff for the said houses. In the absence of specific denial, the written statement of Defendant No. 1 has to be construed as admission of tenancy at the rate of Rs. 250 per month as specified in paragraph 3 of the plaint. Apart from that, Defendant No. 1 in his deposition as D. W. 1 clearly admitted that he remained in possession of the same house on rent on Rs. 250 per month as a tenant of the Plaintiff. He asserted that he had even written a deed of rent in Plaintiff''s favour and had made it over to Abdul Jalil, the husband of the Plaintiff. In paragraph 5, he stated that he had never paid her (the Plaintiff) any rent except Rs. 1,500 above referred to. This statement and the statement of Abdul Jalil, husband of the Plaintiff, who has been examined as P.W. 5 in the case, amply established the position of Defendant No. 1 as the Plaintiff''s tenant and it is beyond the scope of the present suit to decide the question of title and we, therefore, leave that question open.

8 As regards the second question, the notice sent to Defendant No. 1 determining his tenancy is Ex. 1. D-3 on record. The alleged defect in the notice is that it should have expired on 8-7-1952 and it required Defendant No. 1 to vacate the houses by the 7th of July 1952. There is no dispute between the parties that the tenancy commenced from 8-1-1949. Section 110 of the Transfer of Property Act has no application to the case of a tenancy from month to month. Therefore, it is not necessary to omit from calculation the first day of the month. The notice to quit would be a valid notice if it expires with the end of the month of tenancy. [See: Chand Mohammad v. Murtaza Khan ILR 1950 Nagpur 437. The month of tenancy in the instant case expired on the 7th of every month.

It is further to be borne in mind that notices to quit are not to be construed with a desire to point faults in them. A notice need not be worded with the accuracy of a plea. [See: Harihar v. P. Ram Sashi(sic) 46 Cal. 458 PC]. In Gayaprasad Ganpatlal v. S.S. Munnilal Narnyanprasad 1952 NLJ 125. Late Mr. Justice Kaushalendra Rao cited with approval the view taken in Adolphe Shregr(sic) v. Emma Price 12 CWN 1059, where the Court held that a notice which was made to expire on the last day of the month was good though it would be more usual to make it expire on the first of the succeeding month.

The word ''by'' according to the Shorter Oxford English Dictionary means ''on or before''. It was further observed in Gayaprasad

On the reasoning in Sidebotham v. Holland (1895) 1 QB 378, if there could be no objection to the tenant being asked to vacate at the first moment of the date on which the tenancy commenced he could be asked to vacate on that date. Reading the notice as a whole I do not think the tenant was left in doubt as to the termination of the tenancy at the end of that month.

The trial Court did not discuss the relevant law and without assigning any reasons for the conclusion it reached stated that ''the flaw in the notice is that the notices required vacation a day before the last day of the monthly tenancy.'' Differing from the conclusion reached by the trial Court, we, therefore, hold that the notice (Ex. 1. D-3) effectively determined the tenancy of Defendant No. 1 and was valid.

With regard to point No. 3, it is urged that the transaction which took place between the parties on 8-1-49 falls within the purview of Section 49 of the Code of CPC of the Bhopal State as it was in force in 1949 and as such, the quantum of interest or rent could be limited to only the rate prescribed in that section, that is to say, -/12/- per cent per month. Section 49 of the said Code restricts the award of interest and rent.

It is apparent from the language of the section that the Courts have no power to limit the rate of rent or interest which has already been paid by one party to the other. It is only with regard to the rent claimed in the suit that the Courts have been given the power to limit the rats in the decree. The lower Court, thereforce was obviously wrong in working out the rate of rent at the rate of Rs. 112-8- per month from the date of the creation of tenancy because the rent for six months i.e., up to 8-7-1949 was paid in advance on 8-1-1949.

The next question for consideration is whether the rent could be limited to Rs. 112-8-per month from 8-7-1949. In this connection, Shri B.L. Seth, learned Counsel for the Plaintiff-Appellant, has urged that the suit was brought on 12-7-1952 when the Bhopal Code of CPC was not in existence and was superseded by the Indian Code of Civil Procedure. The merged State (Laws) Act came into force on 1-1-1950 It applied to the Bhopal territory and it had the effect of superseding the said Act. He urged that as the suit itself was brought in the year 1952 when Section 49 of the Code, on which reliance is placed, did not exist in the Code of CPC then in force, the Defendant was not entitled to the benefit of the provision contained in that section. The question to be really examined is as to whether the provisions of Section 49 of the said Code created a vested right in favour of the Defendant and thus limited his liability in the matter of payment of rent. A right is said to be vested when the right to enjoyment, present or prospective, has become the property of some particular person or persons as a present interest independent of a contingency. It is a right which cannot be taken away without the consent of the owner. Such rights may arise from contracts or statute and from the operation of law. [See: Gordhan Das, Baldev Das Vs. The Governor General in Council, . In our view, Section 49 of the Code of CPC of the Bhopal State did not create a vested right within the meaning of that expression as ordinarily understood. It only enabled the Courts not to award interest or profit at a rate higher than 9% per annum when that section was in force. When that section itself was effaced from the statute book on the coming into operation of the new Code of Civil Procedure, it cannot be said that the rights of the parties would have still to be determined on the basis of the law as it stood in the year 1949. The rights of the parties are normaly to be governed by the law as it is in force at the time of the institution of the suit. [See: Chandulal Sarupchand Vs. Bhau Buwajirao, , Ganapathy Raja Valia Raja of Edapally, Sivaroopam Vs. The Commr. for Hindu Religious and Charitable Endowments, Madras and Others, and Arjuna Vs. Amrita and Ors. ILR 1956 Nag. 296. No person has any vested right in any course of procedure. If by any enactment, the mode of procedure is altered, he has no other right than to proceed according to the altered mode A change in law or procedure operates retrospectively and unlike the law relating to vested right is not only prospective but also retrospective, [See; Anant Gopal Sheorey Vs. The State of Bombay, . There is no doubt that at the time of institution of the suit; there existed no provision which restricted the award of rent below the contract rate. Thus, we are of the view that the learned lower Court had no jurisdiction to reduce the quantum(sic) of rent by applying Section 49 of the Code of CPC of the Bhopal State.

The result is that this appeal which was heard exparie(sic) against Defendant No. 1 due to his non-appearance by us, succeeds. Instead of the decree passed by the lower Court, we pass the following decree:

That Defendant No. 1 shall deliver vacant possession of both the houses in suit, referred to in para I of the plaint, and in the sale deed, dated 8-1-1949, to the Plaintiff.

That Defendant No. 1 shall pay Rs. 8,850 on account of arrears of rent claimed in the suit to the Plaintiff instead of Rs. 3,112-8-0 decreed by the trial Court.

That the Defendant shall pay the entire costs of both the Courts to the Plaintiff.

That the suit of the Plaintiff-Appellant against Defendant No. 2 is dismissed but as the claim for costs on his behalf was not pressed, we make no orders so far as the costs of Defendant No. 2 are concerned.