judgement:
Appeal No. 307 of 1963.
Appeal by special leave from the judgment and decree dated September 27, 1962, of the Madhya Pradesh High Court in Second Appeal No. 158 of 1962.
S.V. Gupte, Additional Solicitor General of India, O.C. Mathur, Revindra Narain and J.B. Dadachanji for the appellant.
M.C. Setalvad, Rameshwar Nath and S.N. Andley, for the respondents.
October 24, 1963.
The Judgment of the Court was delivered by MUDHOLKAR J.
This is an appeal by special leave against the judgment of the High Court of Madhya Pradesh dismissing the defendant 's appeal in which he had challenged the decision of the courts below ordering his ejectment from certain premises which are in his occupation as the tenant of the plaintiffs.
It is common ground that the defendant was a tenant of the plaintiffs and the rent of the premises in his occupation was Rs. 110 p.m.
It is not disputed that the defendant was in arrears of rent from April 1, 1958 to March 31, 1959 to the extent of Rs. 1,020.
On April II, 1959 the plaintiffs served a notice on the defendant bringing to his notice the fact of his being in arrears of rent for 12 months and requiring him to remit to them Rs. 1,020 within one month from the date of service of notice and stating that on his failure to do so, a suit for ejectment would be filed against him.
In addition to this the notice called upon the defendant to vacate the premises by April 30, 1959 upon two grounds: (1) that the premises were required by the plaintiffs "genuinely for business"; and (2) that the defendant had sublet a portion of the premises to two persons without the permission of the plaintiffs and without having any right to sublet the premises.
242 This notice was received by the defendant on April 16, 1959.
On June 25, 1959 the defendant sent a reply to the notice enclosing with it a cheque for Rs. 1,320.
It may be mentioned that this amount consisted of the rental arrears as well as the rent due right up to June 30, 1959.
The plaintiffs accepted the cheque and cashed it on July 4, 1959 and gave a fresh notice on July 9, 1959 requiring the defendant to vacate the premises by the end of the month of July.
In their notice the plaintiffs also stated that they had cashed the cheque under protest.
The defendant did not vacate the premises and, therefore, the present suit for eviction was instituted on August 14, 1959.
The plaintiffs claim for eviction on the grounds that the premises were required by them bona fide for the purpose of their business and that the defendant had illegally let them out was negatived by the courts below and, therefore, must be left out of question.
The only question is whether the plaintiffs are entitled to eject the defendant upon the ground that the latter was in arrears of rent for one year and had failed to pay the arrears within one month of the service of the notice dated April 11, 1959 upon him.
The tenancy being from month to month it was open to the plaintiffs to terminate it by giving 15 days ' notice expiring at the end of the month of the tenancy as provided for in section 106 of the .
The premises are, however, situated in Jabalpur in which the Madhya Pradesh Accommodation Control Act,1955 (No. 23 of 1955) (herein referred as the Accommodation Act) is in force.
Section 4 of the Act provides that no suit shall be filed.
in any civil court against a tenant for his eviction from any accommodation except on one or more of the grounds set out in that section.
One of the grounds set out in that section is that the tenant has failed to make payment to the landlord of any arrears of rent within one month of the service upon him of a written notice of demand from the landlord.
It is because of this provision that before the plaintiffs 243 could succeed it was necessary for them to establish that the defendant had failed to pay rental arrears within one month of the receipt by him of a notice of demand.
From the undisputed facts it is clear that the defendant was in fact in arrears of rent and had failed to pay it within the time prescribed by cl.
(a) of section 4.
According to the learned Additional Solicitor General, however, in spite of these circumstances the plaintiffs ' suit could not have been decreed because: (1) the notice of April 11, 1959 was invalid for the purpose of section 106 of the inasmuch as the defendant did not have 15 clear days notice expiring by the end of the month of tenancy; (2) that the notice as well as the default were both waived by the plaintiffs by reason of (a) acceptance of the cheque for Rs. 1,320, which included rent up to June 30, 1959; (b) giving a fresh notice on July 9, 1959 and (c) filing of a suit on August 14, 1959 in which reliance was placed only on the second notice.
(3) that the second notice was not valid with reference to the and the Accommodation Act; and (4) that there was no cause of action for the suit on August 14, 1959 under section 5 of the Accommodation Act because no rent was in arrears on that date.
We shall deal with the points in the order in which he has mentioned them.
The learned Additional Solicitor General contends and rightly that the provisions of section 4 of the Accommodation Act are in addition to those of the and that before a tenant 244 can be evicted by a landlord he must comply both with the provisions of section 106 of the and those of section 4 of the Accommodation Act.
The Accommodation Act does not in any way abrogate Ch.
V of the which deals with leases of immovable property.
The requirement of section 106 of the is that a lease from month to month can be terminated only after giving fifteen days ' notice expiring with the end of a month of the tenancy either by the landlord to the tenant or by the tenant to the landlord.
Such a notice is essential for bringing to an end the relationship of landlord and tenant.
Unless the relationship is validly terminated the landlord does not get the right to obtain possession of the premises by evicting the tenant.
Section 106 of the does not provide for the satisfaction of any additional requirements.
But then, section 4 of the Accommodation Act steps in and provides that unless one of the several grounds set out therein is established or exists, the landlord cannot evict the tenant.
Here the contention is that the ground set out by cl.
(a) of that section does exist because the defendant was in arrears of rent for a period of one year and despite service upon him of a notice to pay the amount within one month of receipt thereof, he has failed to pay it.
Now, the learned Additional Solicitor General states that the notice of April, 1959 may be a good notice for the purposes of section 4(a) of the Accommodation Act but it is not a good notice for the purposes of Is. 106 of the for two reasons: in the first place it does not purport to determine the tenancy and in the second place the notice falls short of the period of 15 days specified in section 106 of the .
The High Court has, however, treated this as a composite notice under section 4(a) of the Accommodation Act and section 106 of the and in our opinion rightly.
It has to be observed that the plaintiffs, after requiring the defendant to pay the rental arrears due up to the end of March, 1959 within one month from the date of service of the notice, Proceeded to say "failing which 245 suit for ejectment will be filed".
These recitals clearly indicate the intention of the landlord to terminate the tenancy of the defendant under the relevant provisions of both the Acts.
Even so, the question would arise whether the notice was ineffective under section 106 of the because it was not a notice of 15 clear days.
It was held by the Calcutta High Court in Subadini vs Durga Charan Lal(1) that the notice contemplated by section 106 must be notice of 15 clear days.
In calculating the 15 days ' notice the day on which the notice is served is excluded and even if the day on which it expires is taken into account it will be clear that the defendant had only 14 clear days ' notice.
Therefore, if the view taken in the aforesaid case is correct the period of notice falls short of that provided in section 1.06 of the by one day.
The correctness of the aforesaid decision was not questioned by the same High Court in Gobinda Chandra Saha vs Dwarka Nath Patita(2).
No decision was brought to our notice in which a contrary view has been expressed.
But Mr. Setalvad who appears for the plaintiffs, contends that a notice to quit should be liberally construed.
In this connection he referred us to a decision in Harihar Banerji vs Ramsashi Roy (3) In that case the Judicial Committee of the Privy Council has observed at p. 225: . . . that notices to quite, though not strictly accurate or consistent in the statements embodied in them, may still be good and effective in law; that the test of their sufficiency is not what they would mean to a stranger ignorant of all the facts and, circumstances touching the holding to which they purport to refer, but what they would mean to tenants presumably conversant with all those facts and circumstances; and, further, that they are to be construed, not with a desire to find faults in them which would render them defective, but to be construed at res magis valeat quam pereat." (1)ILR 28 Cal.118.
(2) A.I.R. 1915 Cal. 313, (3) 45 I.A. 222.
246 The decision really is of no assistance in this case because there the defect which was not said to invalidate the notice appertained to the description of the demised premises and the Privy Council held that the recipient of the notice would be quite conversant with the actual description and could know what the description stood for.
Here the question is entirely different and that is whether the landlord had given the minimum period contemplated by section 106 of the to the tenant within which to vacate the premises.
This provision is evidently intended to confer a facility on the tenant and must, therefore, be so construed as to enable him to have the fullest benefit of that facility.
It seems to us that a liberal construction of a notice which would deprive the tenant of the facility of having the benefit of the minimum period of 15 days within which to vacate is not permissible.
We, therefore, approve of the view taken in Subadini 's case(1) and hold that the notice dated April 11, 1959 was ineffective as it does not fulfil the requirements of section 106 of the .
Mr. Setalvad for the plaintiffs, however, points out that a notice complying with the requirements of section 106 was actually given by the plaintiffs to the defendant on July 9, 1959 and no fault could be found with it since it in fact gave more than 15 days ' clear notice to the defendant to vacate the premises.
He further points out that the suit was actually based upon this notice and, therefore, was competently instituted.
We think the contention to be correct.
This brings us to the second and the fourth points raised by the learned Additional Solicitor General which we will deal with together.
His contention is that there were actually no arrears on the date of suit and that unless a tenant is in arrears on the date of suit he is not liable to be evicted because of the provisions of section 4(a) of the Accommodation Act.
The opening words of section 4, cl.
(a) are as follows: (1) I.L.R. 247 "No suit shall be filed in any civil court against a tenant for his eviction from any accommodation except on one or more of the following grounds: (a) that the tenant has failed to make payment to the landlord of any arrears of rent within one month of the service upon him of a written notice of demand from the landlord;" This provision clearly speaks of a tenant having failed to make payment to the landlord of the arrears of rent due from him within the time prescribed in that clause.
It does not mean that the ground on which eviction is claimed must subsist till the date of suit.
It is well to bear in mind that this Provision is quite different from the analogous provisions of the Bombay Rent, Hotel and Lodging House Rates (Control) Act, 1947, or the West Bengal Premises Tenancy Act, 1956.
The protection to tenants given by these Acts is more extensive and a tenant in arrears of rent is given time to pay the arrears even after the institution of the suit.
Indeed, in order to bring the Madhya Pradesh law in line with these Acts the Accommodation Act has been substituted by the M.P. Accommodation Control Act, 1961 (Act 41 of 1961).
Clause (a) of section 12 of that Act entitles a landlord to bring a suit for the eviction of the tenant where the latter has neither paid nor tendered the whole of the arrears of rent legally recoverable from him within two months of the date on which a notice of demand for the arrears of rent has been served on him by the landlord in the prescribed manner.
Sub section (3) of that section provides that no order for the eviction of a tenant could be made on the grounds specified in cl.
(a) of Sub section
(1) if the tenant makes payment of deposit as required by section 13.
Sub section (1) of section 25 gives a right to the tenant to make ail application within certain time for depositing the rental arrears in court.
The scheme of the new Act is thus a substantial departure in this respect from that of section 4 of the 1955 Act.
The learned Additional Solicitor General, however, 248 says that if we look to some of the other grounds specified in section 4 and to the provisions of sections 16 and 17 of the new Act it would appear that when a suit is instituted at the instance of the landlord for the eviction of the tenant the latter must be in arrears on the date of the institution of the suit.
In this connection he refers us to the provisions of cls.
(g),(h), (j) and (k) of s.4 and contends that the grounds referred to in those clauses must necessarily continue to exist till the dates the institution of the suit and that cl.
(a) should be read as containing a similar condition.
Clauses (g) and (h) deal with cases where the landlord, broadly speaking., requires the accommodation for his own residence or for his own business.
Clause (j) deals with a case where a tenant had given written notice to quit and in consequence of that notice the landlord has contracted to sell or let the accommodation or has taken any other step as a result of which his interests would seriously suffer if he is not put in possession of that accommodation.
Clause (k ) deals with accommodation which was let to the tenant for use as a residence by reason of his being in the service of the landlord and the tenant has ceased, whether before or after the commencement of the Act.
to be in such service.
It is not necessary for us to decide in this case whether the grounds referred to in these clauses must necessarily continue to exist on the date of suit.
It is sufficient to say that the language of cl.
(a) must be given its natural meaning and that there is no warrant for modifying that language because while dealing with other grounds set out in other clauses, the legislature has used different language.
If we were to uphold the contention of the learned Additional Solicitor General we would be virtually rewriting the section by saying "that the tenant was in arrears of rent at the date of suit" in place of that the "tenant has failed to, make payment etc.
" It is certainly not open to a court to usurp the functions of a legislature.
Nor again, is there scope for placing an unnatural interpretation on the language used by the legislature and impute to it an intention which cannot be inferred from the language used by 249 it by basing ourselves on ideas derived from other laws intended to give protection to the tenants from eviction by landlords.
As far as sections 16 and 17 are concerned, they are of no assistance to the defendant.
It is not necessary for us to reproduce their provisions; but it is sufficient to say that they were intended to give a limited retrospective operation to the provisions of the new section 4.
We have no doubt, therefore, that the ground set out in cl.
(a) of section 4 need not be shown by the landlord to exist at the date of institution of the suit.
All that is necessary for him to establish is that the tenant was in fact in.
arrears, that he was given one month 's notice to pay up the arrears and that in spite of this he failed to pay those arrears within one month of service of notice on him.
It is said that such an interpretation will lead to this result that the landlord who had served notice upon a tenant under cl.
(a) of section 4 and in compliance with which the tenant had failed to pay the arrears within one month of the service of notice, may continue the tenancy of the defaulting tenant, go on receiving lent from him and then at his sweet will may terminate the tenancy.
The intention to give such a right to the landlord cannot reasonably, accord ing to the learned Additional Solicitor General, be attributed to the legislature.
Theoretically that is possible; but the argument based upon it is farfetched.
The landlord who wants to evict a tenant and, therefore, avails himself of the ground furnished by cl.
(a) of section 4 would not wait for years to file a suit against his defaulting tenant.
It seems to us that in furnishing the ground to the landlord the legislature intended to give only a limited protection to the tenant or to put it slightly differently, the legislature intended to give protection only to a tenant who was diligent and regular enough in the matter of payment of rent.
That is all.
Indeed, while it is open to a legislature to give wide protection to ever defaulting tenants, it does not follow from it that whenever it gives protection it must be deemed to have given him the protection of the widest amplitude.
250 Then it is said that such an interpretation will deprive a tenant, for whose benefit section 4 was enacted, of the benefit of section 114 of the which provides for relief against forfeiture for non payment of rent.
What is forfeiture is set out in section 111 (g) of the , which runs thus: "By forfeiture; that is to say, (1) in case the lessee breaks an express condition which provides that, on breach thereof, the lessor may re enter; or (2) in case the lessee renounces his character as such by setting up a title in a third person or by claiming title in himself; or (3) the lessee is adjudicated an insolvent and the lease provides that the lessor may re enter on the happening of such event; and in any of these cases the lessor or his transferee gives notice in writing to the lessee of his intention to determine the lease;" The effect of cl.
(a) of section 4 is merely to remove the bar created by the opening words of section 4 on the right which a landlord has under section 106 of the to terminate a tenancy of a tenant from month to month by giving a notice terminating his tenancy.
It does not convert a periodic tenancy into one of fixed or indefinite duration nor insert therein a clause of re entry on the ground of nonpayment of rent.
The character of the tenancy as one from month to month remains; but to it is added a condition that the unfettered right to terminate the tenancy conferred by section 106 will be exercisable only if one of the grounds set out in section 4 of the Accommodation Act is shown to exist.
The next question is whether, as contended by the learned Additional Solicitor General, the default made by the defendant in failing to pay the arrears within one month of the receipt of the notice dated April 11, 1959, can be said to have been waived by the plaintiffs.
It is no doubt true that by cashing the cheque for Rs. 1,320 on July 4, 1959 the plaintiffs received not merely the arrears of rent up to March, 1959 but also rent upto June 30, 1959.
There is no 251 substance in the plea made on their behalf that they had received the amount under protest.
In the first place this is not a case to which illustration (a) to section 113 of the which says that acceptance of rent falling due after the expiry of a notice to quit amounts to waiver of the notice applies.
Then again when the plaintiffs cashed the cheque they had not filed a suit on the basis of the notice of April 11, 1959.
Merely saying that they accepted the money under protest is, therefore, of no avail to them.
Even so, it is difficult to infer, merely from the acceptance of the payment, a, waiver of the right which had accrued to them under section 4(a) of the Act in consequence of the default made by the defendant in paying arrears of rent.
The reason is quite simple.
The tenancy, as was indeed argued by the learned Additional Solicitor General, hah not be en validly terminated by the notice of April 11 , 1959 and therefore the relationship of landlord and tenant continued.
Consequently the plaintiffs were within their right in accepting the rent and cannot be fastened with the intention to waive the default just because of this action since the defendant was, by virtue of the Accomodation Act entitled to remain in possession as tenant and liable to pay rent.
The learned Additional Solicitor General, however, faintly contended that if the notice of April 11, 1959 could also be construed as being intended to be notice under section 106 of the then even though it was ineffective the acceptance of rent by the plaintiffs on July 4, 1959 amounted to a waiver of the right accruing from the notice.
As we have already indicated, so far as the suit is concerned, it is based upon the notice of July 9, 1959, that is to say, the eviction of the defendant is claimed on the basis of a notice requiring him to quit by the end of July, 1959.
The right accruing to the plaintiffs to institute the suit on the basis of this notice has not been waived at all and the receipt by them of rent prior to this date does not by itself terminate the right accruing to them under the notice dated July 9, 1959.
It may be that if the notice of April 11 , 1959 is construed 252 as a composite notice, that is, one contemplated by cl.
(a) of section 4 as also one under section 106 of the , acceptance of the rent could, along with other circumstances, have led to the inference of waiver of the right flowing from the notice under section 106 of the .
But it is difficult to see how such a construction of the notice can at all support a plea of waiver of the right accruing from cl.
(a) of section 4.
As already pointed out, the notice of April 11, 1959 in so far as it purported to be under section 106 of the was ineffective and, therefore, the relationship of landlord and tenant continued between the plaintiffs and the defendant.
Accepting rent under such circumstances from the defendant cannot justify the inference of waiver of quite a different right and that is to take advantage of the statutory right under section 4 of the Accommodation Act accruing by reason of the default made in the payment of rental arrears.
Indeed, the notice of April 11, 1959 as it stands, could not by itself have furnished the plaintiffs with the right to institute a suit.
Till they acquired that right, not only were they entitled to accept the rent which accrued due from month to month but the defendant was himself liable to pay the rent whenever it fell due till the relationship of landlord and tenant was put an end to.
Therefore, from the sole circumstance of acceptance of rent after April 11, 1959 waiver cannot at all be inferred.
We are, therefore, unable to accept the argument of the learned Additional Solicitor General that by cashing the cheque for Rs. 1,320 the plaintiffs waived all rights which accrued to them under the notice dated April 11, 1959.
As we have already said, no right under section 106 of the had accrued to them because of the ineffectiveness of the notice in so far as the termination of tenancy was concerned and, therefore, no question of waiver with respect to that part of the notice arises.
So far as the right accruing under section 4 (a) of the Accommodation Act is concerned, the defendant having been under liability to pay rent even after the giving of notice the acceptance of the 253 rent by the plaintiffs would not by itself operate as waiver.
As regards the last point, we have in fact dealt with it already.
What was contended was that the notice of April 11, 1959 was not a valid notice with reference to both the laws, that is, the and the Accommodation Act.
We have pointed out that though the notice could be construed to be composite notice it was ineffective in so far as it purports to be under section 106 of the .
It was not suggested that in so far as it was a notice under the Accommodation Act it was invalid.
There is, therefore, nothing more to be said about it.
For the foregoing reasons we uphold the decree of the High Court and dismiss the appeal with costs.
Appeal dismissed.

summary:
The defendant was a tenant of the plaintiffs.
The defendant was in arrears of rent for one year to the extent of Rs. 1,020.
On April 11, 1959 the plaintiffs served a notice on the defendant requiring him to remit to them Rs. 1,020 within one month from the date of service of notice, failing which suit for ejectment would be filed.
This notice was received by the defendant on April 16, 1959.
On June 25, 1959 the defendant sent a reply to the notice enclosing with it a cheque for Rs. 1,320.
This amount consisted of the rental arrears as well as the rent due right up to June 30, 1959.
The plaintiffs accepted the cheque and cashed it and gave a fresh notice on July 9, 1959 requiring the defendant to vacate the premises by the end of the month of July.
The defendant did not vacate the premises.
Then the plaintiffs filed a suit to eject the defendant upon the ground that the latter was in arrears of rent for one year and had failed to pay the arrears within one month of the service of the notice dated April 11, 1959 upon him.
From the undisputed facts it was clear that the defendant was in fact in arrears of rent and had failed to pay it within the time prescribed by cl.
(a) of section 4 of the Madhya Pradesh Accommodation Control Act, 1953.
Held:(i) Though the notice dated April 11, 1959 could be construed to be composite notice under section 4(a) of the accommodation Act and section 106 of the it was ineffective 240 under section 106 of the because it was not a notice of 15 clear days.
In the present case, the defendant had only 14 clear days ' notice.
Subadini vs Durga Charan Lal, I.L.R. and Gobind Chandra Saha vs Dwarka Nath Patita, A.I.R. 1915 Cal. 313, approved.
Harihar Banerji vs Ramsashi Roy, L.R. 45 I.A. 222, dis tinguished.
(ii)The suit was actually based upon the notice dated July 9, 1959 which gave more than 15 days ' clear notice to the defendant to vacate the premises.
This notice was a valid notice under section 106 of the .
(iii)The contention that a suit under cl.
(a) of section 4 of the Act is not maintainable unless a tenant is in arrears on the date of the suit, cannot be sustained.
If this contention had to be accepted it would be virtually rewriting the section by saying "that the tenant was in arrears of rent at the date of suit" in place of that the "tenant has failed to make payment etc.
" It is certainly not open to a court to usurp the functions of a legislature.
Nor again, is there scope for placing an unnatural interpretation on the language used by the legislature and impute to it an intention which cannot be inferred from the language used by it by basing ourselves on ideas derived from other laws intended to give protection to the tenants from eviction by landlords.
(iv)The ground set out in cl.
(a) of section 4 need not be shown by the landlord to exist at the date of institution of the suit.
All that is necessary for him to establish is that the tenant was in fact in arrears, that he was given one month 's notice to pay up the arrears and that in spite of this he failed to pay these arrears within one month of service of notice on him.
(v)The effect of cl.
(a) of section 4 is merely to remove the bar created by the opening words of section 4 on the right which a landlord has under section 106 of the to terminate a tenancy of a tenant from month to month by giving a notice terminating his tenancy.
The character of the tenancy as one from month to month remains; but to it is added a condition that the unfettered right to terminate the tenancy conferred by section 106 will be exercisable only if one of the grounds set out in section 4 of the Accommodation Act is shown to exist.
(vi)By cashing the cheque for Rs. 1,320 the plaintiffs did not waive all rights which accrued to them under the notice dated April 11, 1959.
No right under section 106 of the had accrued to them because of the ineffectiveness of the notice in so far as the termination of tenancy was concerned and, therefore, no question of waiver with respect to that part of the notice arises.
So far as the right accruing under section 4(a) of the Accommodation Act is concerned, the defendant having been under liability to pay rent even after the giving of notice the acceptance of the rent by the plaintiffs would not by itself of operate as waiver.


judgement:
ivil Appeal No. 672 of 1962.
Appeal by special leave from the judgment and order dated December 10, 1958, of the Patna High Court in Appeal from Appellate Decree No. 716 of 1954.
S.P. Varma, for the appellants.
Sarjoo Prasad and Mohan Behari Lai, for the respondents.
107 October 10, 1963.
The Judgment of P.B. Gajendragadkar, K. Subba Rao, K.N. Wanchoo and J.C. Shah JJ., was delivered by Subba Rao J. Raghubar Dayal J. delivered a separate Opinion.
SUBBA RAO J.
This appeal by special leave is directed against the judgment of the High Court of ' Judicature at Patna and raises mainly the question of the scope of the right of pre emption under the Mohamedan law as applied by custom in Bihar.
The facts lie in a small compass.
On June 17, 1930, Chathilal Sah of Sahebganj, who was the owner of a house and two golas bearing holdings Nos. 184 and 185 situated in mahalla Sahebganj, executed a will bequeathing the said property to his daughter Parbati Kuer and nephew Ram Swarup in equal shares.
Under the said will Ram Swarup was to get the entire property in case Parbati Kuer died unmarried or issueless.
On July 18, 1940, Ram Swarup sold one half of the said property to the plaintiff respondent 1.
On July 27, 1942, the plaintiff respondent 1 acquired under a patta some lands adjoining the said property.
On October 10, 1949, defendant 3 (respondent 3 herein), alleging to be the husband of the said Parbati Kuer, sold the remaining half of the disputed property to defendants 1 and 2.
It may be mentioned at this stage that the land on which the said house and golas stand is Dih Basgit Lagani (rent paying) land.
On December 10, 1949, respondent 1 filed Title Suit No. 214 of 1949 in the First Court of the Munsif at Chapra for a declaration that he has a right to pre empt the property purchased by appellants 1 and 2 and for directing them to transfer the said property to him.
To that suit, the first appellant and his two sons were made defendants 1, 2 and 2A and their vendor was made defendant 3.
The defendants contested the suit, inter alia, on the ground that the ceremonies of pre emption were not performed and that under the Mohamedan, law the plaintiff was not entitled to pre emption, as the land on which the said house and golas stood was "rent paying" land.
The learned Munsif dismissed the suit.
But, on appeal the Subordinate 108 Judge of Chapra allowed the appeal and granted a decree for pre emption in favour of the plaintiff respondent 1.
On appeal, the High Court agreed with the Subordinate Judge and dismissed the appeal.
Defendants 1, 2 and 2A have preferred the present appeal by 'special leave against the Judgment of the High Court.
Mr. Varma, learned counsel for the appellants, raised before us the following four points: (1) the right of pre emption infringes the fundamental right of a citizen under article 19(1) (f) of the Constitution and it is not saved by cl.
(5) thereof: (2) the first respondent failed to establish his title and, therefore, his suit should have been dismissed on that ground; (3) the ceremonies of pre emption were performed only on October 11, 1949 whereas the sale deed in favour of the appellants was executed and registered on October 20, 1949 and, as the said performance of the ceremonies was premature, they having been performed before the sale was completed, the right of pre emption could not be enforced; and (4) there is no right of pre emption in respect of leasehold interest and, therefore, there cannot be a right of pre emption in respect of a house standing on such land, as Mohamedan law does not recognize a right of pre emption in mere super structure.
Mr. Sarjoo Prasad, learned counsel for the respondents controverts the correctness of the said propositions.
We shall deal with his arguments in the course of the judgment.
To appreciate the first contention, some dates may be recapitulated.
Respondent 1 purchased one half share of the property by a sale deed dated July 18, 1940.
Appellants 1 and 2 purchased the other half of the property on October 10, 1949.
The suit was filed on December 10, 1949.
The Munsif dismissed the suit on April 14, 1953.
The Constitution came into force on January 26, 1950.
The appellants had no fundamental right on the date when they purchased the property.
But it is said that under the law of pre emption a person who seeks the assistance of a court with a view to enforce the right of pre emption is bound to establish that the 109 right existed on the date of the sale, on the date of the institution of the suit, and also on the date of the decree of the primary court See Nuri Mian vs Ambica Singh(1) and, therefore, the restriction on the appellants ' fundamental right to acquire the property was not finally imposed before the Constitution, but became crystallized into an irrevocable restriction only at the time of the passing of the decree which was subsequent to the coming into force of the Constitution.
We need not express our opinion on this question, as it has been held by this Court in Bhau Ram vs Baij Nath(2) that a right of pre emption vis a vis co sharers was not an unreasonable restriction on the fundamental right of a person to acquire, hold and dispose of property.
But learned counsel contends that decision should be confined to a case of co sharers who are related to each other, and should not be extended to co sharers who are not related to each other.
Reliance is placed upon the following observations in that judgment found at p. 1483: "If an outsider is introduced as a co sharer in a property it will make common management extremely difficult and destroy the benefits of ownership in common.
" This sentence does not, in our view, sustain the distinction sought to be made by the learned counsel between co sharers who are relatives and co sharers, who are not relatives.
The word "outsider" in the said passage can only mean a person who is not a co sharer.
The judgment of this Court finally settled the question as between co sharers.
Following the decision we hold that the law of pre emption vis a vis co sharers does not infringe the fundamental right conferred under article 19 (1) (f) of the Constitution.
The second question, namely, that of the plaintiff 's title does not call for consideration by us.
It was not raised in the courts below, and it being a pure question of fact, we cannot allow it to be raised for the first time before us.
We, therefore, disallow it.
(1) Cal.
(2) ; 110 The next point raised by the learned counsel is that the ceremonies of pre emption performed in this case were premature, as the sale was completed only on October 20, 1949 whereas the ceremonies were performed on October 11, 1949.
This Court, by a majority, held in Ram Saran vs Domini Kuer(1) that the registration under the Registration Act is not complete till the document to be registered has been copied out in the records of the Registration Office as provided in section 61 of that Act.
Learned counsel contends that a perusal of the sale deed dated October 10, 1949, ex facie shows that it was copied only on October 20, 1949.
The question as to when a document was copied out in the concerned register is certainly a question of fact.
The argument was not raised either before the trial court or before the first appellate court.
No issue was framed on the point.
It was raised for the first time before the High Court.
The learned Judges of the High Court pointed out that if the appellants wanted to take advantage of the said point, it was their duty to have raised it either in the trial court or in the first appellate court and to have adduced evidence by calling for the register from the registration department to show on what date the actual copying of the record was made under section 61 of the Registration Act.
In the circumstances, the learned Judges refused to allow the appellants to raise the point.
The High Court, in our opinion, was certainly right in disallowing the appellants from raising the question of fact for the first time in second appeal.
If the plea had been taken at the earliest point of time, the respondents might have had many defences and might have explained the various dates found on the documents.
We cannot allow the appellants to raise the said plea.
Now we come to the substantial point raised in the appeal.
The right of pre emption is sought to be enforced in respect of a rent paying land with a house thereon.
Learned counsel for the appellants contends that the right of pre emption does not arise (1) ; 111 on the sale of a leasehold interest in land and that in the absence of such a right there cannot be a right of pre emption in respect of the super structure alone.
Learned counsel for the respondents, on the other hand, contends that under Mohamedan law the right of pre emption exists in the case of akar i.e., a house or mansion, to enable the co sharer to have peaceful enjoyment thereof and that the fact that there is no right of pre emption in respect of a leasehold interest in land does not in any way detract from that right.
He further contends that whatever might have been the strict incidents of the right of pre emption under Mohamedan law, this Court cannot ignore the modern evolution of law recognizing the transferability and heritability of leasehold interest in land.
Before we consider the problem thus presented for our decision, it would be convenient at the outset to notice certain general principles relevant to the present enquiry.
It has not been disputed that Hindus in the Province of Bihar came to adopt the Mohamedan law of pre emption as a custom.
This was because under the Muslim rule the law of pre emption under the Mohamedan law was administered as a rule of common law of the land in those parts of the country which came under their domination.
We must, therefore,.
look to Mohamedan law to ascertain the incidents of the right of pre emption unless it is established in a particular case that by custom the said law has been modified to any extent.
Being a customary law, it is not permissible for courts to extend the custom beyond the limits within which upto now it has been recognized.
The concept of rationalization is out of place in the ascertainment of the customary incidents of the right of pre emption.
This Court in Bishan Singh vs Khazan Singh(1) considered the law on the subject and laid down the propositions flowing from the discussion.
The following propositions are relevant to the present enquiry: (1) The right of pre emption is simply a right of sub (1) 78.
112 situation, but not of re purchase i.e., the pre emptor takes the entire bargain and steps into the shoes of the original vendee; (2) it is a right to acquire the whole of the property sold and not a share of it; and (3) the right being a very weak right, it can be defeated by all legitimate methods, such a.s the vendee allowing the claimant of a superior or equal right being substituted in his place.
It is, therefore, settled law that the pre emptor must take the entire bargain: he cannot split up the bargain and claim to be substituted in respect of a portion of it either on the ground that he does not require a part of it or for the reason that he is entitled to claim pre emption only in respect of a part of it.
Further, the right being a weak one, a court need not be astute to rationalize the doctrine so as to make it fit into modern trends of property law.
Indeed, it should be reluctant to extend it beyond the incidents clearly recognized by Mohamedan law or by custom.
With this background let us now turn to the question that arises in this case.
The subject can conveniently be considered under three heads: the pre emptor; (ii) the vendor; and (iii) the property in respect of which the right is claimed.
In Baillie 's "Digest of Moohummudan Law" the following passage appears at p. 478: "When it is said that akar (such as mansions, vine yards and other kinds of land) are proper objects of the right of pre emption, it is by virtue of a right of milk, or ownership, that they are so.
" Mahmood 3.
in Gobind Dayal vs Inayatullah(1) observed at p. 779 thus: "pre emption is a right which the owner of certain immovable property possesses, as such, for the quiet enjoyment of that immovable property, to obtain, in substitution for the buyer, proprietary possession of certain other immovable property, not his own, on such terms as these 113 on which such latter immovable property is sold to another person.
" The same learned Judge in Sakina Bibi vs Amiran(1) states that in the pre emptive tenement (the tenement by the ownership of which the pre emptor wants to exercise his right of pre emption ), the pre emptor should have vested ownership and not a mere expectancy of inheritance or a reversionary right, or any other kind of contingent right, or any interest which falls short of full ownership.
Beaumont C.J. in Dashrathlal vs Bai Dhondubai(2), after considering the law on the subject, accepted the view that the custom of preemption only exists as between free holders, that is to say neighbouring lands in respect whereof the custom is claimed to apply must be freehold and that the land sought to be pre empted must also be free hold.
This Court, in Shri Audh Bihari Singh vs Gajadhar Jaipuria(3), has laid down the correct legal position thus: ". . the benefit as well as the burden of the right of pre emption run with the land and can be enforced by or against the owner of the land for the time being although the right of the pre emptor does not amount to an interest in the land itself." This legal requirement of the full ownership of the pre emptor may be traced either to the fact that "in ancient times Mohamedan law did hot recognize leases although it recognized hire of|and for the purpose of user, or to the circumstance that the right was conferred to enable the pre emptor to prevent an undesirable person from becoming his neighbour" which would not be the case if he was only a temporary occupant of the property in respect whereof the right arose.
Whatever may be the reason, it may safely be held now that the pre emptor must be the owner of the property in respect whereof he claims the right of pre emption.
(1) (1888)I.L.R.10 All. 472, 477.
(2) A.I.R. 1941 Bom.262.
(3) ; , 80. 1 SCI/64 8 114 The next question, namely, the quantum of interest which the vender shall possess in the land sought to be pre empted depends upon the doctrine of reciprocity.
Unless the land in respect of which the custom is claimed and the land sought to be pre empted are freeholds, the principle of reciprocity will be defeated.
To illustrate: "A" has full ownership in a land in respect of which he claims the right of pre emption;the co sharer vendor has only a leasehold interest in respect of the land sought to be pre empted; if the pre emptor had sold the land earlier, the vendor having only a leasehold interest in his land, could not have claimed the right of pre emption in respect of his land, for he had no full ownership in the land.
The absence of this reciprocity gives an advantage to one of the sharers which the Mohamedan law does not permit.
This doctrine of reciprocity has been succinctly stated by Mahmood J. in Gobind Dayal vs Inavatullah(1) in the passage we have extracted earlier.
In Mt. Bibi Saleha vs Amiruddin(2) the said doctrine was restated.
It was held therein that a mukarraridar holding under a co sharer had no right to pre empt as against another co sharer and as a mukarraridar could not claim pre emption, the co sharer on the doctrine of reciprocity, which is well understood in the Mohamedan law, could not claim pre emption against the mukarraridar.
A Full Bench of the Bombay High Court in Deshrathlal vs Bai Dhondubai(3) has given its approval to the said principle.
This Court in Shri Audh Behari Singh vs Gajadhar Jaipuria(4) succinctly put the legal position in the following words: "The crux of the whole thing is that the benefit as well as the burden of the right of pre emption run with the land and can be enforced by or against the owner of the land for the time being although the right of the pre emptor does not amount to an interest in the land itself.
" That leasehold interest is not subject to the law of pre emption has been well settled: see Baboo Ram (1) All.
(2) [1929] I.S.R. 8 pat 251.
(2) A.I.R. 1941 Bom.
(4) ; ,80. 115 Golam Singh vs Nursingh Sabey(1), Mohammad Jamil vs Khub Lal Raut(2); Sakina Bibi vs Amiran(3); Phul Mohammad Khan vs Qazi Kutubuddin(4); Moorooly Ram vs Baboo Hari Ram(5); Rameshwar Lal vs Ramdeo Jha(6); and Nathuni Ram vs Gopinath(7).
Indeed this legal position has not been controverted by learned counsel for the respondents.
Now let us address ourselves to the main contention of the respondents, namely, that the right of pre emption exists in the Mohamedan law in respect of akar which includes a building, that the main purpose intended to be served by the said right is to prevent an undesirable person from becoming the sharer of the house and that, therefore, it would be unrealistic to negative that right in the case of a house on the ground that the land on which the house stands is a leasehold interest.
Reliance is placed upon the following passage in Charles Hamilton 's "The Hedaya", 2nd Edn., at p. 558: "It is observed, in the abridgment of Kadooree, that Shaffa does not affect even a house or trees when sold separately from the ground on which they stand.
This opinion (which is also mentioned in the Mabsoot) is approved; for as buildings and trees are not of a permanent nature, they are therefore of the class of movables.
" Relying upon this passage it is contended that, as in the present case the house was sold along with the ground, the doctrine of "Shaffa" applies to the house.
But this passage must be understood on the assumption that the right of pre emption exists in respect of the land on which the house stands.
In Baillie 's "Digest of Moohummudan Law", the legal position is made clear.
Therein the author says at pp.
479 480: "When a person has purchased a palm tree to cut it down, or when he has purchased it absolutely, there is no right of pre emption in it.
But (1) (2) [1921] 5 Pat.
L.J. 740.
(3)[1888] I.L.R. 10 All. 472, 477.
(4) A.I.R. 1937 Pat.
(5) [1867] 8 W.R.106.
(6) A.I.R. 1957 Pat.
(7) A.I.R. 1962 Pat.
226 (F.B.) 116 if it be purchased with its roots and the ground on which it stands, it is liable to the right.
The rule is the same with regard to buildings purchased for removal, and the same buildings purchased with their foundations; and there is no preemption in the former case, while there is in the latter.
" This passage indicates that a building sold as a superstructure is not subject to the right of pre emption, for it would be in effect a sale of a movable.
Unless the house is sold with its foundations, that is to say with the land on which it stands, there is no right of pre emption in regard thereto.
Though it may be said that in the present case the house was sold with its foundations, the same principle will have to be applied, for the right of pre emption cannot be invoked in the case of a leasehold interest.
In effect and substance the right is sought to be invoked in the case of the building decors the foundations which the law does not permit.
Reliance is placed upon the proposition found in para.
370 of Wilson 's Anglo Muhammadan Law, which reads: "If a house is sold apart from the ground on which it stands with a view to being pulled down, so that it is in fact a sale of the materials, no right of pre emption arises with respect to it.
If it is sold for occupation as a house, then preemption can be claimed on the ground of vicinage by the owner of any adjoining land or house (and perhaps by the owner of the site itself, supposing him to be a different person from the vendor of the house, even though he should happen to own no land except that covered by the house).
" It is said that the words in the brackets conceding the right of the owner of a site to pre empt the house sold as a house indicates that the real principle is whether the house is sold as a habitate or only as materials and that in the former case irrespective of the ownership of the land or the existence of the right of pre emption in respect thereof, the sale of the house can be pre empted.
The opening word 117 of the passage, namely, "perhaps", shows that the author himself is not sure of the legal position.
That apart, the illustration only deals with a land in respect of which there can be a right of pre emption, i.e., the owner of the land has a freehold interest therein.
Strong reliance is placed upon the decision of a Division Bench of the Allahabad High Court in Zahur vs Nur Ali(1).
There, a dwelling house was sold as a house to be inhabited as it stood with the same right of occupation as the vendor had enjoyed, but without the ownership of the site.
It was held that the right of pre emption under the Mohamedan law attached to such house.
The judgment is not a considered one.
The learned Judges observed at p. 100 thus: "The seller not only sold the materials of the house, but such interest as he possessed as an occupier of the soil.
The house was sold as a house to be inhabited on the spot with the same right of occupation as the seller had enjoyed. ' ' The learned Judges distinguished the texts cited on the ground that they applied only to the sale of the materials of a house or a house capable of and intended to be removed from its site.
This judgment no doubt supports the contention of learned counsel for the respondents; but the learned Judges have not considered the well settled principle that there cannot be a right of pre emption in respect of a land over which the vendor has no full ownership.
The decision suffers from the infirmity that the said well settled principle has escaped the attention of the court.
Reliance is also placed on the decision of a Division Bench of the Patna High Court in Chariter Dusadh vs Bhagwati Pandey(2).
There, the question was whether the pre emptor had the milkiyat or ownership in the property on account of which he claimed the right of pre emption.
The pre emptor was birtdar though he was described as a tenant in the Record of Rights for a particular purpose.
The court held (1) (1880)I.L.R. 2 All.
(2) A.I.R. 1934 Pat.
596. 118 that he was a full owner.
This decision does not really support the respondents.
There is a direct decision of a Full Bench of the Patna High Court on the question now raised, in Nathuni Ram vs Gopinath(1).
There, as here, a right of pre emption was claimed in respect of a house which stood on a leasehold land.
After a full discussion of the subject, Choudhary J., speaking for the Full Bench, came to the following decision, at p. 229: "On a careful consideration of the authorities and the principle of law involved in the case, my concluded opinion is that,in case of a sale of different properties, the.
right of pre emption cannot be exercised with respect to one or some of them only if the enjoyment thereof is dependent on the property over which that right is not and cannot be exercised in law and consequently, where the land is sold with a house thereon, pre emption cannot be allowed.
with respect to the house only apart from the land over which the right could not be exercised on account of its being a leasehold property.
The sale of a house for inhabitation or occupation, without the sale of its foundations and the land over which the foundations stand, is inconceivable, except, as pointed out in Hedaya, in case of the sale of the upper story of a house.
" We agree with the conclusion.
As this judgment has considered the earlier decisions on the subject, we need not again refer to them.
To summarize: A right of pre emption is annexed to full ownership of property of co sharers.
It is not attached to property held on subordinate tenure, such as leases etc.
It is an incident of the co sharer 's property operating both as a right and as a burden in different situations.
It is a right of substitution taking in the entire bargain.
It must take the whole or nothing.
It does not matter if the inability to take the whole arises out of a voluntary act or out of a legal limitation inherent in the nature of the (1) A.I.R. 1962 Pat. 226 (F.B.) 119 property transferred.
It is reciprocal in operation, that is, if the situation was reversed and the vendor became the pre emptor, he should be in a position to pre empt the co sharer 's whole bargain.
The two doctrines which may, for convenience, be referred to as "entire bargain" and "reciprocity" cannot ' operate unless both the co sharers are full owners of their respective properties.
Akar or a house standing on a freehold land is subject to the right of preemption, but a house on a leasehold land stands on a different footing.
As there is no right of preemption in respect of a land held on a subordinate tenure, the right of pre emption cannot be enforced against the house either, as the pre emptor cannot be substituted for the entire bargain.
The right must fall also on the ground that the super structure disannexed from the land would be movable property and it is well settled that the right of pre emption cannot be enforced in respect of movables.
We, therefore, hold that the first respondent has no right to pre empt the sale executed in favour of the appellants.
In the result, the appeal is allowed, the decrees of the Subordinate Judge 's Court and the High Court are set aside and that of the trial Court is restored.
The appellants will have their costs throughout.
RAGHUBAR DAYAL J.
I agree that the law of pre emption regarding co sharers does not infringe the fundamental right conferred under article 19(1)(g), that the pre emptor must be the owner of the property in respect whereof he claims the right of pre emption, that the vendor must have proprietary right in the property sold and sought to be pre empted, that the sale of lease hold interest is not subject to the law of pre emption and that the sale of the super structure of a house is not pre emptible.
I also agree that the pre emptor must pre empt for the entire property sold if that be pre emptible.
I would, however, not like to express an opinion upon the point whether, in certain circumstances, the pre emptor can or cannot 120 pre empt part of the property sold.
There have been cases where partial pre emption has been allowed.
Some of the exceptional cases have been referred to at p. 778 of 'Muslim Law as Administered in India & Pakistan ' by K.P. Saksena, IV Edition.
In Zainab Bibi vs Umar Havat Khan(1) the preemptor was allowed to pre empt that part of the property sold which was pre emptible and in support of the decision it was stated at p. 457: "So far as the Mohammedan Law is concerned, there is no doubt that where several properties are sold in portions of which a pre emptor has the right of pre emption, he is entitled to preempt that portion only on payment of a proportionate price.
On this point there was a consensus of opinion among the three Imams as quoted in the Fatawa Alamgiri, referred to in Omur Khan vs Mooras Khan (1865 N.W.P. H.C.R. 173, 174)" This Court did express an opinion in Bishan Singh vs Khazan Singh(2): "The general law of pre emption does not recognize any right to claim a share in the property sold when there are rival claimants.
It is well established that the right of pre emption is a right to acquire the whole of the property sold in preference to other persons (See Mool Chand vs Ganga Jal: ILR 11 Lah.
258, 273) " In that case the dispute lay between two rival preemptors and arose in these circumstances.
One preemptor pre empted the entire sale and obtained the decree on condition that he would deposit a certain amount within a certain time.
But, before he could deposit the amount, the rival pre emptor instituted another suit for the pre emption of the entire property sold and impleaded in that suit the first pre emptor.
The rights of the two pre emptors were found to be equal.
The entire property sold was clearly pre emptible.
It was, in this context, that the observation (1) (2) ; ,884.
121 was made.
It would be a matter for consideration at the appropriate time whether there can be any exception to this general rule that the entire property sold must be pre emptor by the pre emptor in his suit.
I would therefore rest my decision on the facts that the sale of the lease hold interest in land is not pre emptible and that the super structure of the house is also not pre emptible and that therefore the plaintiff pre emptor cannot pre empt the sale of the property sold.
I therefore agree that the appeal be allowed, the decrees of the Subordinate Judge and the High Court be set aside and that of the trial Court be restored and that the appellants would have their costs throughout.
Appeal allowed.

dataset_name: IN-Abs

summary:
One Chathilal Sah of Sahebganj, Bihar, was the owner of a house and two golas which stood on a rent paying land and he executed a will bequeathing the said property to his daughter and nephew in equal shares.
In 1940 the nephew sold one half of the property to respondent No. 1 who two years later acquired under a patta some adjoining lands.
In 1949 respondent No. 3 alleging to be the husband of the daughter sold the remaining half of the property to appellants 1 and 2.
In December 1949 respondent filed a title suit for declaration that he has a right to pre empt the property purchased by appellants 1 and 2 and for directing them to transfer the same to him.
The trial court dismissed the suit but in the appeal before the Subordinate Judge he succeeded and the High Court dismissed the appeal presented by the appellant.
The present appeal is by special leave granted by this Court.
Before this Court four contentions were raised by the appellants, two of which being pure questions of fact and not having been raised in the courts below were not considered by this Court.
The questions of law raised were (a) the right of pre emption infringes the fundamental right of a citizen under article 19 (1) (f) of the Constitution and (b) there is no right of pre emption in respect of leasehold interest and therefore there cannot be a right of pre emption in respect of a house standing on such land.
Held: (i) The law of pre emption vis a vis co sharers does not infringe the fundamental right conferred under article 19(1) (f) of the Constitution.
Bahu Ram vs Baij Nath, [1962] Supp. 3 S.C.R. 724 and Nuri Mian vs
Ambica Singh, Cal.
(ii) A right of pre emption is annexed to full ownership of property of co sharers.
It is not attached to property held on subordinate tenure, such as lease etc.
It is an incident of the co sharer 's property operating both as a right and as a burden in different situations.
It is a right of substitution taking in the entire bargain.
It must take the whole or nothing.
It does not matter if the inability to take the house arises out of a voluntary act or out of a legal limitation inherent in the nature of the property transferred.
It is reciprocal in operation, that is, if the situation was reversed and the vendor became the pre emptor, he should 106 be in a position to pre empt the co sharers ' whole bargains.
The two doctrines which may, for convenience be referred to as "entire bargain" and "reciprocity" cannot operate unless both the co sharers are full owners of their respective properties.
Akar or a house standing on a freehold land is subject to the right of preemption, but a house on a leasehold land stands on a different footing.
As there is no right of pre emption in respect of a land on subordinate tenure the right of pre emption cannot be enforced against the house either, as the pre emptor cannot be substituted for the entire bargain.
The right must fail also on the ground that the super structure disannexed from the land would be movable property and it is well settled that the right of pre emption cannot be enforced in respect of movables.
Case law reviewed.
Bishan Singh vs Khazan Singh, ; , Goblad Dayal vs Inayatullah, All 775, Sakina Bibi vs Amiran, All 472, Dashrathlal vs Bai Dhondubai, A.I.R. (1941) Bom.
262, Shri Audh Behari Singh vs Gajadhar Jaipuria; , , Mr. Bibi Saleha vs Amiruddin(1929)I.L.R. 8 Pat. 251, Baboo Ram Golam Singh vs Nursingh Sabey, Mohammad Jamil vs Khub Lal Raut, , Phul Mohammad Khan vs Qazi Kutubuddin, A.I.R. 1937 Pat.
578, Mooroof ly Ram vs Baboo Hari Ram, , Rameshwar Lal vs Ramdeo Jha, A.I.R. 1957 Pat.
695, Nathuni Ram vs Gopinath, A.I.R. 1962 Pat. 226 (F.B), Zahur vs Nur Ali, All 99 and Chariter Dusadh vs Bhagwati Pandey A.I.R. 1934 Pat.
Per Raghubar Dayal J While agreeing with the majority judgment on other points, no opinion is expressed on the point whether in certain circumstances the pre emptor can or cannot pre empt part of the property sold.
There have been cases where partial pre emption has been allowed.
Zainab Bibi vs Umar Hayat Khan, (1936) All.
L.J. 456 and Bishan Singh vs Khazan Singh, ; Sale of leasehold interest in land is not pre emptible and that the super structure of the house is also not pre emptible and therefore the plaintiff pre emptor cannot pre empt the property sold.
The appeal should be allowed.


judgement:
Appeal No. 470 of 1963.
Appeal by special leave from the judgment and decree dated August 14, 1962, of the Gujarat High Court in Revision Application No. 425 of 1960.
S.T. Desai, B. Parthasarathy, J.B. Dadachanji, O.C. Mathur and Ravinder Narain, for the appellant.
N.C. Chatterjee and M.V. Goswami, for the respondent.
October 22, 1963.
The Judgment of the Court was delivered by SHAH J.
Haji Gulamnabi Haji Safibhai hereinafter called 'the plaintiff ' is the owner of certain premises in the town of Baroda, and Vora Abbasbhai hereinafter called 'the defendant ' occupies the premises as plaintiff 's tenant on a monthly rental of Rs. 70.
By notice dated December 1, 1956 which was served on December 3, 1956, the plaintiff called upon the defendant to deliver possession of the premises alleging that the latter had failed to pay rent since October 1, 1955.
The defendant by his letter dated December 7, 1956 contended that he had paid rent at the agreed rate till April 1, 1956, and that he was entitled to get credit for Rs. 200 being the 160 costs incurred by him for "electric installation" in the premises made with the plain.
tiff 's consent, and that the rent stipulated was excessive.
On January 5, 1957 the defendant moved the Civil Judge, Junior Division, Baroda under section 11(1) of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947, called for the sake of brevity 'the Act ', for an order fixing the standard rent of the premises occupied by him and also for an order under section 11 (3) specifying interim rent.
By letter dated January 7, 1957 the defendant informed the plaintiff about the application moved by him and requested the plaintiff to appear in the proceeding, and expressed his willingness to pay such amount as the Court ordered him to pay.
On January 8, 1956 the defendant deposited in Court Rs. 500 to the credit of the plaintiff.
On January 27, 1957 the plaintiff instituted a suit in the Court of the Civil Judge, Junior Division, Baroda, for a decree in ejectment on the ground of non payment of rent.
On February 14, 1957 the defendant applied to the Court for an order specifying the rate at which interim rent may be deposited in Court so long as the standard rent of the suit property was not fixed, and submitted that the dispute between the parties related to fixation and payment of standard rent, and that without prejudice to his contentions he was ready to deposit the amount ordered by the Court.
The Civil Judge on the same day ordered: "The defendant to deposit the arrears at the rate of Rs. 51 per month within 15 days from today." Pursuant to this order the defendant deposited Rs. 200 on March 2, 1956 to the credit of the plaintiff and deposited diverse other sums from time to time which by February 11, 1958, aggregated taking into account the amount of Rs. 500 deposited on January 8, 1956 to Rs. 1,479.
No further steps it appears were taken in the application moved by the defendant under section 11 for fixation of standard rent but proceeding was amalgamated with the suit as the enquiry about the appropriate standard rent had also to be made in the suit.
161 On March 28, 1958, the Civil Judge, dismissed the plaintiff 's claim for a decree in ejectment.
In the view of the Court the standard rent of the premises was Rs. 50 per month, that the defendant had paid the stipulated rent upto April 1, 1956 and that he was entitled to credit for Rs. 150 expended by him3 with the consent of the plaintiff for "electric installation" in the premises occupied by him.
Taking into account the aggregate amount deposited, the Court held that the defendant was not liable to be evicted for non payment of standard rent and that in any event it was established that the defendant was ready and willing to pay the amount of standard rent and permitted increases within the meaning of section 12(1) of the Act.
In appeal the District Court held that the "proper standard rent" of the premises was Rs. 70 per month, that rent had not been paid by the defendant since October 1, 1955 and that the defendant was not entitled to get credit for ' Rs. 150 spent by him for ' 'electric installation" But the learned Judge held that by depositing, pursuant to the order of the Court of First Instance, interim rent as ordered, the defendant had complied with the requirements of section 12(3) (b), and that he had otherwise proved his readiness and willingness to pay the amount of standard rent and permitted increases.
The District Court accordingly confirmed the decree of the Trial Court, insofar as it related to the claim for possession and modified it in respect of the quantum of standard rent, and the consequential adjustment of the amounts deposited in Court.
The High Court of Gujarat in exercise of its jurisdiction under section 115, Code of Civil Procedure reversed the decree of the District Court, and ordered the defendant "to hand over vacant and peaceful possession of the premises to the plaintiff within four months from the date of the order".
In the View of the High Court the defendant was not ready and willing to pay the standard rent and permitted increases at the date of the suit and that he did not comply 1 SCI/64 11 162 with the requirements of section 12(3) (b) of the Act, because he had not deposited in Court the amount of standard rent at the rate determined by the order of the District Court and had not paid even the interim rent at the rate fixed by the Court of First Instance and that he had not paid costs of the suit which he was bound under section 12(3) (b) to pay.
Section 12(1) of the Act confers, subject to certain provisions contained in section 13, protection upon tenants.
It provides: "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 consistent with the provisions of this Act." The clause applies to a tenant who continues to remain in occupation after the contractual tenancy is determined:it does not grant a right to evict a contractual tenant without determination of the contractual tenancy.
Protection from eviction is claimable by the tenant even after determination of the contractual tenancy so long as he pays or is ready and willing to pay the amount of the standard rent and permitted increases and observes and performs the other conditions of the tenancy consistent with the provisions of the Act.
The premises in question are situated within the territory of the former State of Baroda and by virtue of section 3 of the Bombay Merged States (Laws) Ordinance VI of 1949 and the Bombay Act IV of 1950 called the Bombay Merged States (Laws) Act, 1950 which extended the Bombay Rents, Hotel and Lodging House Rates (Control) Act, LVII of 1947, to the territory of Baroda, the definition of 'standard rent ' in relation to any premises for purposes residential or nonresidential was enacted by section 5 c1.
(10A).
The clause provides: 163 " 'Standard rent ' in relation to any premises let for the purpose of residence or for non residential purpose means: (a) where the standard rent is fixed by the Controller under the House Rent Control Order, 1947, made by the Baroda Government, such standard rent, or (b) where the standard rent is not so fixed, subject to the provisions of section 11 (i) the rent at which the premises were let on the specified date, or (ii) where they were not let on the specified date, the rent at which they were last let before that date, or (iii) where they were first let after the specified date, the rent at which they were first let, or (iv) in any of these cases specified in section 11, the rent fixed by the Court: Provided that an increase in rent made in operation immediately before the 30th day of July 1949, in accordance with the provisions of the said House Rent Control Order, 1947, shall be deemed to be included in the standard rent." The expression 'specified date ' was defined in cl.
(10) as meaning the first day of January, 1943, in the case of premises let for the purpose of residence and the first day of January 1944 in the case of premises let for non residential purpose.
Where standard rent is not fixed under el.
(a) in sub section
(10A) of section 5 recourse must ordinarily be had to the Court for fixation of standard rent, under section 11 of the Act.
Section 11 provides: "(1) In any of the following cases the Court may, upon an application made to it for that purpose, or in any suit or proceeding, fix the standard rent at such amount as, having regard, to the provisions of this Act and the circumstances of the case, the Court deems just 164 (a) where any premises are first let after the first day of September 1940, and the rent at which they are so let is in the opinion of the Court excessive; or (b) where the Court is satisfied that there is no sufficient evidence to ascertain the rent at which the premises were let in any one of the cases mentioned in sub clauses (i) to (iii) of clause (b) of sub section (10) of section 5; or (c) where by reason of the premises having been let at one time as a whole or in parts and at another time in parts or as a whole, or for any other reasons, any difficulty arises in giving effect to this Part; or (d)where any premises have been or at let rent free or at a nominal rent or for some consideration in addition to rent; or (e) where there is any dispute between the landlord and the tenant regarding the amount of standard rent. "(2) If there is any dispute between the landlord and the tenant regarding the amount of permitted increases the Court may determine such amount.
(3) If an application for fixing the standard rent or for determining the permitted increases is made by a tenant who has received a notice from his landlord under sub section (2) of section 12, the Court shall forthwith make an order specifying the amount of rent or permitted increases to be paid by the tenant pending the final decision of =the application, and a copy of such order shall be served upon the landlord." (On account of some oversight the section has not been amended in its application to the merged territory of Baroda to make it consistent with the provisions of the Bombay Act IV of 1950.
In cl.
(b) reference should have been made to sub section
(10A) and not sub section
But that is a mere drafting error.) Section 11 authorises the Court to fix standard rent on an 165 application made for that purpose, or in any suit or proceeding when for deciding it is necessary to do so.
Standard rent is fixed by the Court at such amount as having regard to the provisions of the Act and the circumstances of the case, the Court deems just.
Clause (2) authorises the Court to fix the amount of permitted increases.
By el.
(3) the Court is required in an application moved by the tenant for fixing the standard rent and permitted increases, after he has received a notice under section 12(2), forthwith to make an order specifying the amount of rent which may appropriately be called interim rent, pending the final determination of standard rent.
The reason of the rule contained in this clause is obvious: it is to prevent a tenant from making an application for fixation of standard rent a pretext for refusing to pay rent to the landlord.
But by an order made under sub section
(3) the Court merely specifies the amount of rent payable pending the determination of standard rent: the Court thereby does not fix standard rent within the meaning of section 5(10A) (iv).
The protection given by sub section
O) of section 12 is subject to the provisions of section 13 and also subject to certain limitations and restriction procedural as well as substantive contained in section 12.
Sub section (2) of section 12 provides: "No suit for recovery of possession shall be instituted by a landlord against a tenant on the ground of non payment of the standard rent or permitted increases due, until the expiration of one month next after notice in writing of the demand of the standard rent or permitted increases has been served upon the tenant in the manner provided in section 106 of the .
" It enacts a restriction upon the right of the landlord to sue the tenant in ejectment on the ground of nonpayment of standard rent or permitted increases, by requiring him to give one more opportunity to the tenant to pay rent due by him.
Clause (3) (a) of section 12 166 specifies the circumstances in which the tenant is deemed to forfeit the protection.
It provides: "Where the rent is payable by the month and there is n.o dispute regarding the amount of standard rent or permitted increases, if such rent or increases are in arrears for a period of six months or more and the tenant neglects to make payment thereof until the expiration of the period of one month after notice referred to in sub section (2), the Court may pass a decree for eviction in any such suit for recovery of possession.
" In the context the expression "may" has a mandatory content: if the conditions of the clause are fulfilled the Court is bound to pass a decree in ejectment against tenant: Bhaiya Punyalal Bhagwandin vs Bhagwatprasad(1).
Clause (3) (b) provides: "In any other case, no decree for eviction shall be passed.
in any such 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 standard rent and permitted increases then due and thereafter continue to pay or tender in Court regularly such rent and permitted increases till the suit is finally decided and also pays costs of the suit as directed by the Court.
" The clause deals with cases not failing within cl.
(3) (a) i.e. cases (i) in which rent is not payable by the month (ii) in which there is a dispute regarding the standard rent and permitted increases, (iii) in which rent is not due for six months or more.
In these cases the tenant may claim protection by paying or tendering in Court on the first day of the hearing of the suit or such other date as the Court may fix, the standard rent and permitted increases and continuing to pay or tender in Court regularly such rent and permitted increases till the suit is finally decided and also by paying costs of the suit as directed by the Court.
What the tenant has to pay or tender in (1) ; 167 Court to comply with the condition of cl.
(b) of sub section
(3) is standard rent and permitted increases, and the Court has under cl.
(b) of sub section
(1) merely the power to fix the date of payment or tender, and not the rate at which the standard rent is to be paid.
Power to fix the standard rent of premises is exercisable under section 11(1) alone.
To bring his claim within section 12(3)(b) the tenant must pay or tender the standard rent and permitted increases on or before the first day of hearing, or on or before such other date as the Court fixes, and also costs of the suit as may be directed by the Court.
It may be noticed that the statute imposes upon the tenant obligation to pay or deposit the amount of costs if the Court so directs, and not otherwise.
The observation made by the High Court to the contrary, viz: "It is, therefore, clear that the tenant in order to be entitled to claim the protection of section 12(3)(b) must deposit costs of the suit along with the arrears of standard rent and permitted increases . " is in our judgment erroneous.
But in the practical working of cl.
(3) (b) some difficulty may arise.
Where there is no dispute as to the amount of standard rent or permitted increases, but rent is not payable by the month, or the rent is not in arrears for six months, by paying or tendering in Court the standard rent and the permitted increases and continuing to pay it till the suit is finally decided the protection granted by the clause is made effective.
Where there is a dispute as to the standard rent, the tenant would not be in a position to pay or tender the standard rent, on the first date of hearing, and fixing of another date by the Court for payment or tender would be ineffectual, until the standard rent is fixed.
The Court would in such a case on the application of the tenant, take up the dispute as to standard rent in the first instance, and having fixed the standard rent, call upon the tenant to pay or tender such standard rent so fixed, on or before a date fixed.
If the tenant pays the standard rent fixed, on or before the date specified, and continues to pay or 168 tender it regularly till the suit is finally decided, he qualifies for the protection of cl.
(3) (b).
If in an appeal filed against the decree, the standard rent is enhanced, the appeal Court may fix a date for payment of the difference, and if on or before that date the difference is paid, the requirement of section 12(3)(0) would be complied with: Clause (4) authorises the Court to pay to the landlord out of the amount paid or tendered by the tenant, such amount towards payment of rent or permitted increases due to him as the Court thinks fit.
Then follows an Explanation: "In any case where there is a dispute as to the amount of standard rent or permitted increases recoverable under this Act the tenant shall be deemed to be ready and willing to pay such amount if, before the expiry of the period of one month after notice referred to in sub section (2), he makes an application to the Court under subsection (3) of section 11 and thereafter pays or tenders the amount of rent or permitted increases specified in the order made by the Court.
" The Explanation enacts a rule of evidence.
1f after service of the notice upon the tenant by the landlord under sub section
(2) of section 12 the tenant makes an application under sub section
(3) of section 11 before the expiry of a month and thereafter pays or tenders regularly the amount of interim rent specified by the Court till the disposal of the suit, the Court is bound to presume that the tenant is at the date of the decree ready and willing to pay the standard rent and permitted increases.
Section 12(3) (b) requires the tenant to pay the standard rent, and not interim rent, and for the purpose of that clause the expression "standard rent" may not be equated with "interim rent" specified under section 11(3).
Compliance with an order for payment of interim rent is made by the Explanation to section 12conclusive evidence of the readiness and willingness to pay the standard rent, but that by itself is not a ground for holding that the interim rent which 169 may be specified under sub section
(3) of section 11 is standard rent fixed under sub section
(1) of section 11.
It is true that the statute requires the tenant to pay or tender in Court standard rent at the rate which may still remain to be fixed by order of the Court such order itself being liable to be varied or modified by an order of a superior Court.
But that is not a ground for departing from the definition supplied by the statute.
The legislature has prescribed conditions on which the tenant may qualify for protection of his occupation, and one of the important conditions is the readiness and willingness to pay the standard rent and permitted increases, which may be proved by obtaining an order of the Court fixing the rate of standard rent and complying therewith or by complying with the Explanation to section 12 or otherwise.
The claim made by the defendant fell within the terms of section 12(3) (b) and not section 12(3) (a).
The defendant had contended by his reply dated December 7, 1956, to the notice served by the plaintiff, that the contractual rent was excessive: he had then raised the same contention in the application filed for fixation of standard rent and in his written statement filed in the suit.
There is nothing in section 12 to support the contention raised by Mr. Chatterjee on behalf of the plaintiff that the dispute concerning standard rent contemplated by el.
(b) of sub section
(3) is one which must have been raised before service of the notice under section 12(2).
The entire tenor of the section is against that interpretation.
On the view we have expressed, the District Court was apparently in error in assuming that by tendering in.
Court rent at the rate specified in the order dated February 14, 1957 the requirement of section 12(3) (b) regarding payment or tender of standard rent was satisfied.
Standard rent for the purpose of section 12(3)(b) is such rent as is already determined or may be finally determined under section 11(1).
But it turned out that the amount deposited by the defendant pursuant to the order of the Court was not less than the amount fixed by the Trial Court.
It is true that the defendant 170 did not continue to pay rent regularly till the suit was finally decided, and that deprived him of the protection under section 12(3) (b).
The District Court enhanced the standard rent to Rs. 70 and directed adjustment of standard rent against the amount paid in Court.
That Court, it is true, did not also strictly follow the requirements of law, but the defect was technical.
The Court should have before disposing of the appeal fixed a date for payment of the difference between the Standard rent due and the amount actually deposited in Court.
Tile District Court also held that the defendant had otherwise established his readiness and willingness to pay the standard rent.
The question which then arises: had the High Court jurisdiction to set aside the order of the District Court in exercise of its powers under section 115 of the Code of Civil Procedure? The District Court on an erroneous view of section 12(3) (b) held that the requirements of that provision were complied with by the defendant, but it also held that having regard to the circumstances, the readiness and willingness contemplated by sub section
(t) was otherwise established.
The High Court had, in exercise of its powers under section 115 Code of Civil Procedure, no authority to set aside the order merely because it was of the opinion that the judgment of the District Court was assailable on the ground of error of fact or even of law.
Jurisdiction to try the suit was conferred upon the Subordinate Judge by section 28(1) (b) of the Act, and the decree or order passed by the Subordinate Judge was by section 29(1) (b) subject to appeal to the District Court Of the District in which he functioned, but all further appeals were by sub section
(2) of section 29 prohibited.
The power of the High Court under section 115 Code of Civil Procedure was not thereby excluded, but the exercise of that power is by the terms of the statute investing it severely restricted.
The High Court may exercise its powers in revision only if it appears that in a case decided by a Subordinate Court in which no appeal lies thereto the Subordinate 171 Court has exercised a jurisdiction not vested in it by law or has failed to exercise a jurisdiction so vested or has acted in the exercise of its jurisdiction illegally or with material irregularity.
As observed by the Privy Council in Balakrishna Udayar vs Vasudeva Aiyar(1): " . . . section (section 115 of the Code of Civil Procedure) applies to jurisdiction alone, the irregular exercise or non exercise of it, or illegal assumption of it.
The section is not directed against conclusions of law or fact in which the question of jurisdiction is not involved .
" Therefore if the Trial Court had jurisdiction to decide a question before it and did decide it, whether it decided it rightly or wrongly, the Court had jurisdiction to decide the case, and even if it decided the question wrongly, it did not exercise its jurisdiction illegally or with material irregularity: Rajah Amir Hassan Khan vs Sheo Baksh Singh(2).
Mr. Chatterjee for the plaintiff contended that the District Court in declining to pass a decree in ejectment refused to exercise a jurisdiction vested in it by law, and therefore the case fell within the terms of cl.
(b) of section 115.
Counsel relied in support of his plea upon Joy Chand Lal Babu vs Laksha Chaudhury and others(3).
In Joy Chand Lal 's case(a), an application for relief under sections 30 and 36 of the Bengal MoneyLenders Act was dismissed by the Subordinate Judge on the view that the loan in question was a commercial loan which did not fall within the terms of the Act.
The Judge however proceeded to consider whether the suit in which the application was made was a suit to which the Act applied, and held that it was such a suit.
The High Court of Calcutta set aside the order.
In appeal the Privy Council agreed with the High Court that the Subordinate Judge was bound, upon his finding that the loan was a commercial loan, to dismiss the application without determining whether the suit was one to which the Act applied.
(1) L.R. 44 I.A. 261 (2) L.R. 11 I.A. 237 (3) L.R. 76 I.A. 131 172 Sir John Beaumont in dealing with the power of the High Court observed: "There have been a very large number of decisions of Indian High Courts on section 115, to many of which their Lordships have referred.
Some of such decisions prompt the observation that High Courts have not always appreciated that although error in a decision of a Subordinate Court does not by itself involve that the Subordinate Court has acted illegally or with material irregularity so as to justify interference in revision under sub section
(c), nevertheless, if the erroneous decision results in the Subordinate Court exercising a jurisdiction not vested in it by law, or failing to exercise a jurisdiction so vested, a case for revision arises under sub section
(a) or sub section
(b), and subs.
(c) can be ignored.
" The Privy Council distinguished between cases in which on a wrong decision the Court either assumes jurisdiction which is not vested in it or refuses to exercise jurisdiction which is vested in it by law, and those in which in exercise of its jurisdiction the Court arrives at a conclusion erroneous in law or in fact.
In the former class of cases exercise of revisional jurisdiction by the High Court is permissible but not in the latter.
This was pointed out by this Court in Manindra Land and Building Corporation vs Bhutnath Bannerjee and others(1) wherein after referring to the passage already quoted and another passage from the judgment in Joy Chand Lal 's case(2), the Court observed: "These remarks are not applicable to the facts of the present case.
They apply to cases in which the law definitely ousts the jurisdiction of the Court to try a certain dispute between the parties and not to cases in which there is no such ouster of jurisdiction under the provisions of any law, but where it is left to the Court itself to determine certain matters as a result (1) ; (2) L.H. 76 I.A. 131 173 of which determination the Court has to pass a certain order and may, if necessary, proceed to decide the dispute between the parties.
The distinction between the two classes of cases is this.
In one, the Court decides a question of law pertaining to jurisdiction.
By a wrong decision it clutches at jurisdiction or refuses to exercise jurisdiction.
In the other, it decides question within its jurisdiction.
In the present case, the question whether there was a sufficient cause was exclusively within the jurisdiction of the Court and the Court could decide it rightly or wrongly." Section 12(1) does not affect the jurisdiction of the Court to entertain and decide a suit in ejectment against a tenant.
It merely confers a protection upon a tenant if certain conditions are fulfilled, and cls.
(2) (3) (a), (3) (b) and the Explanation deal with certain specific cases in which readiness and willingness pay standard rent, may either be presumed or regarded as proved.
The decision of the District Court that the tenant established or failed to establish his readiness and willingness to pay the standard rent does not affect the jurisdiction of the Court conferred by law upon it, and by wrongly deciding that a tenant is or is not entitled to protection, the Court does not assume to itself jurisdiction which is not vested in it by law or refuse to exercise a jurisdiction which is vested in it by law.
Nor does the Court by arriving at an erroneous conclusion on the plea of the tenant as to his readiness and willingness act illegally or with material irregularity in the exercise of its jurisdiction.
The High Court was in error in setting aside the decree of the District Court in exercise of the powers in revision under section 115 Code of Civil Procedure.
The appeal must therefore be allowed and the order passed by the District Court restored.
If any amount has been deposited as standard rent since the order passed by the District Court, the same should be paid over to the plaintiff at the rate of 174 Rs. 70 per month.
We direct, having regard to the circumstances, that there shall be no order as to costs in this appeal.
Appeal allowed.

summary:
The Appellant was the tenant of the respondent occupying of the latter premises at a monthly rental of Rs. 70.
The appellant appealed to the Civil Judge for fixing standard rent under section 11(1) and for specifying interim rent under section 11(3) of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 and deposited a certain amount to the credit of the respondent.
Subsequently the respondent filed a suit before the Civil Judge for evicting the appellant on the ground of non payment of rent.
The Civil 158 Judge ordered the appellant to deposit the arrears of rent at the rate of Rs. 51 per month within 15 days.
He substantially complied with his order.
The two proceedings were amalgamated.
The Civil Judge fixed the standard rent at the rate of Rs. 50 per month and dismissed the suit for eviction on the ground that the appellant was willing to pay the standard rent within the meaning of section 12 of the Act.
In appeal the District Court fixed the standard rent Rs. 70 per mensem and found that since the appellant had complied with the order to deposit arrears and since he was ready and willing and ready to pay standard rent he confirmed order of the lower court order of dismissing of the suit.
The respondent took the matter in revision before the High Court under section 115 Code of Civil Procedure, 1908.
The High Court reversed the order of the District Court and directed eviction on the grounds that appellant was not ready and willing to pay the standard rent, that he had not deposited the standard rent at the rate enhanced by the District Court and that he had not paid the interim rent at the rate fixed by the trial Court.
Held: (i) Section 12 (1) of the Act applies to a tenant who continues to remain in occupation even after the determination of the contractual tenancy.
Such a tenant is entitled to claim protection from eviction against eviction so long as he is willing and ready to pay the standard rent and permitted increases and observe other conditions under the Act.
This protection is subject to the provisions of section 13 and to the limitations contained in section 12(2) and section 12(3) (a).
The expression "may" in section 12(3) (a) has a mandatory content: if the conditions of this clause are fulfilled the court is bound to pass a decree in ejectment against the tenant.
Bhaiya Punyalal Bhagwandin vs Bhagwat prasad; , (ii) The power to fix standard rent is exercisable under section 11(1) alone.
To bring his claim within section 12(3) (b) the tenant must pay or tender the standard rent fixed by the court and permitted increases on or before the first day of hearing or on before such other date fixed by the court.
The amount of costs has to be paid or deposited only if the court so directs.
If in appeal the standard rent is enhanced the appeal court may fix a date for payment of the difference and if the tenant pays the difference on or before the day so fixed he will be entitled to get the protection of section 12(3) (h).
(iii) Explanation to section 12 erects a rule of evidence.
If the tenant pays or tenders regularly the interim rent specified by the court till the disposal of the suit the court is bound to presume that the tenant is at the date of the decree ready and willing to pay the standard rent and permitted increase.
The expression "standard rent" in section 12(3) (b) shall not however to be equated with "interim rent" in section 11 (3).
There is nothing in section 12 to support the contention that the dispute concerning standard rent contemplated by cl.
(b) of sub section
(3) is one which must be raised before service of notice under section 12(3).
159 (iv) The District Court ought to have before disposing of the appeal fixed a date for payment of the difference between the standard rent due and the amount actually deposited in court.
The error committed by the District Court was however only technical.
Held, further the High Court in exercise of its power under section 115 Code of Civil Procedure had no authority to set aside the order of the District Court merely because it was of opinion that the judgment of the District Court was assailable on the ground of error of fact or even of law.
The High Court may exercise its power under that section only if the subordinate court has acted without jurisdiction or has failed to exercise its jurisdiction or has acted with material illegality or irregularity.
Balakrishna Udayar vs Vasudeva Aiyar, L.R. 44 I.A. 261, Rajah Amir Hassan Khan vs Sheo Baksh Singh, L.R. 11 I.A. 237, Joy Chand Lal Babu vs Laksha Chaudhury, L.R. 76 I.A. 131, distinguished.
Manindra Land and Building Corporation vs Bhutnath Bannerjee, ;