BHAIYA PUNJALAL BHAGWANDDIN versus DAVE BHAGWATPRASAD PRABHUPRASAD

Citation: [1963] 3 S.C.R. 312 · Decided: 04-05-1962 · Supreme Court of India · Bench: J.L. KAPUR · Disposal: Dismissed
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Judgment (excerpt)

Mq4. 
312 
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. 
SUPREME COURT REPORTS 
313 
'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. 
1962 
Bhaiya Punja/al 
Bltoqwanddin 
v. 
Dave Bhagwatprasatl 
Prablwprasad 
1~
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