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IN THE HIGH COURT OF BOMBAY
(B. C. Gadgil J)
HASHMATRAI HIRANAND SINDHI and another Appellants.
v.
TARACHAND LAXMICHAND MOHOTA and others Respondents.
Second Appeal No. 84 of 1969
decided on 18-4-1978. (Nagpur)
TENANCY - TERMINATION - WAIVER OF NOTICE - RENT CONTROL ORDER - APPLICABILITY - MESNE PROFITS - ENQUIRY.
Fact of the Case:
The original defendant, Hiranand Gurumukhdas, was a tenant of a portion of a plot owned by the plaintiffs, Mannalal Sachariya and Kishorilala Sanchariya. The tenancy was terminated by a notice expiring on 31-12-1963. Hiranand paid Rs. 50 to the plaintiffs in January 1964 as rent. The plaintiffs filed a suit for possession and mesne profits. The trial court and the appellate court decreed the suit. Hiranand's heirs appealed to the High Court.
Finding of the Court:
The High Court held that the notice terminating the tenancy was valid and proper. The court also held that the Rent Control Order was not applicable to the suit premises and that there was no waiver of notice. The court further held that the plaintiffs were entitled to mesne profits from the date of suit till the date of possession.
Issues: 1. Whether the notice terminating the tenancy was valid and proper? 2. Whether the Rent Control Order was applicable to the suit premises? 3. Whether there was a waiver of notice? 4. Whether the plaintiffs were entitled to mesne profits from the date of suit till the date of possession?
Ratio Decidendi: 1. The court held that the notice terminating the tenancy was valid and proper as it was in accordance with the provisions of Section 111 of the Transfer of Property Act. 2. The court held that the Rent Control Order was not applicable to the suit premises as the premises were an open space and not a house as defined in the order. 3. The court held that there was no waiver of notice as the acceptance of rent by the plaintiffs during the pendency of the suit did not amount to an intention to treat the lease as subsisting. 4. The court held that the plaintiffs were entitled to mesne profits from the date of suit till the date of possession as they were entitled to the same under the provisions of Order 20, Rule 12 (1) (c) of the Code of Civil Procedure.
Final Decision: The appeal was dismissed with costs and the decree in Suit No.2 of 1964 was confirmed with the modification and direction that the plaintiffs were entitled to mesne profits from the date of suit till date of possession and that an enquiry in that respect be made under Order 20, rule 12 (1) (c). Code of Civil Procedure.
2. At this stage there are certain undisputed facts. The suit property is a part of a plot situate at Wardha. Initially the entire plot was owned by one Murarka. In or about 1948 he let it out to Lalchand on the annual rent of Rs.101. It seems that Lalchand started his own business after erecting some structures thereon. Thereafter he sold that business along with the lease-hold rights to the original defendant Hiranand. As far as the lessors interests are concerned they were sold by public auction and a firm known as Mahabir prasad Shyamsundar (acting through Motilal) purchased the suit plot. The purchaser divided the plot in three parts. One of them was sold to Manikchand second to Krishna Charde and the third, i.e. the suit property to Mannalal Sachariya and Kishorilala Sanchariya. After these sale-deeds the rent amounts was apportioned and consequently each purchaser became the separate lessor of Hiranand so far as his part was concerned. The rent of the suit plot was fixed at Rs. 35 per year. Mannalal and Kishorilala terminated the tenancy of the defendant by giving a notice and then filed a suit No. 306 of 1962. It was dismissed on 9-4-1962 on the ground that the tenancy of Kiranand was not terminated by a valid and proper notice. This finding was given as Kiranand contended that the tenancy was an annual tenancy and that 15 says notice would not be sufficient. After decision of the suit the original plaintiffs Mannalal and Kishorilala gave another notice dated 10-6-1963 terminationg the defendants tenancy by the end of 31-12-1963. They also claimed arrears of Rs. 52.98. this notice was received by Kiranand of 13-6-1963. The notice was not complied with. The plaintiffs therefore filed suit under appeal to recover possession and mesne profits. Hiranand paid Rs. 50 to the plaintiffs in January 1964 as rent. A contention was therefore raised that by accepting this rent the plaintiffs have waived the notice as contemplated by section 113 of the Transfer of Property Act. One more contention was that the C.P. & Berar Letting of Houses and Rent Control Order 1949 is applicable to the suit premises. Under that Order the landlord is not entitled to terminate the tenancy without previously obtaining the permission was obtained by the plaintiffs and as such the termination of the tenancy was bad. Hiranand died during the pendency of the suit. His heirs (viz., the present appellants) filed the written statement at Ex. 22 and resisted the suit. That written statement is practically similar to the one that was filed by Hiranand at Ex.9
3. The learned Civil Judge (Senior Division}, who heard the suit came to the conclusion that the Rent Control Order was not applicable and that there was no waiver of notice. A finding was recorded that the notice, terminating the tenancy was legal and proper. The decree for possession was passed against the defendants. They preferred an appeal No. 60 of 1966 to the District Court, Wardha. During the pendency or the appeal, the original plaintiffs Mannalal and Kishorilal sold their interest in the suit property to Tarachand Laxmichand, the present respondent No. 1. Tarachand's name was substituted in the said appeal. The appellate Court confirmed the decree and dismissed the appeal. It is this dismissal that is being challenged before me.
4. It was contended by Mr. Dharmadhikari that the notice expiring by the end of December 1963 was bad as the tenancy year was beginning on 25th of June. This contention, however, is without any substance in as much as Hiranand in suit No. 306 of 1962 has specifically admitted that the tenancy was beginning on 1st of January. Ex 28 is a not
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