Decided on April 07,1966



B.J.DIVAN - (1.) In this Civil Revision Application the petitioner is the original defendant and the opponents are the original plaintiffs. Plaintiffs are the owners of a building situated at Baroda and the petitioner is a tenant occupying premises consisting of ground-floor where a shop is situated and residential premises on the first and second floors where the tenant is residing. The plaintiffs filed the suit on the ground of reasonable and bona fide requirement under sec. 13(1)(g) of the Bombay Rents Hotel and Lodging House Rates (Control) Act 1947 The defendant contended that the premises were not reasonably and bona fide required by the landlords. The landlords wanted the tenant to vacate the entire portion viz. the shop on the ground-floor and the resident in accommodation on the two upper floors. The suit was tried by the learned 5th Joint Civil Judge (Junior Division) Baroda and he decreed the plaintiffs suit partially. He decreed the suit so far as the premises of the shop on the ground floor were concerned and dismissed the plaintiffs suit so far the first and second floors of the building were concerned. Against this judgment and decree of the learned trial Judge both the sides went in appeal. Both these appeals were heard together and by a common judgment the learned Assistant Judge Baroda who heard the appeals dismissed the tenants appeal with costs and allowed landlords appeal and decreed the suit entirely in favour of the landlords. It is against this judgment and decree of the learned Assistant Judge that the present Civil Revision Application has been filed.
(2.) Mr. Parikh appearing on behalf of the petitioners urged the following four points at the hearing of the Civil Revision Application; (1) that the tenant was protected under the provisions of the Displaced Persons (Compensation and Rehabilitation) Act 1954 (2) that the Court constituted under the Bombay Rents Hotel and Lodging House Rates (Control) Act 1947 had no jurisdiction to deal with the matter; (3) that the learned Assistant Judge had erred in considering the balance of convenience instead of considering balance of hardship as he was required to do and lastly (4) that the notice to quit was waived by the landlords by acceptance of rent after the tenancy had been terminated by the notice to quit.
(3.) Taking up the 4th point first it is clear in the light of the judgment of the Supreme Court in Cthat this contention is not tenable. In that case Shah J. who delivered the judgment of the Supreme Court relied upon a passage from the Judgment of B.K. Mukherjee J. in Kai Khushroo v. Bai Jerbai A. I. R. 1949 FC 124 and the passage is in these terms: cases of tenancies relating to dwelling houses to which the Rent Restriction Acts apply the tenant may enjoy a statutory immunity from eviction even after the lease has expired. The landlord cannot eject him except on specified grounds mentioned in the Acts themselves. In such circumstances acceptance of rent by the landlord from a statutory tenant whose lease has already expired could not be regarded as evidence of a new agreement of tenancy and it would not be open to such a tenant to urge by way of defence in a suit for ejectment brought against him under the provisions of Rent Restriction Act that by acceptance of rent a fresh tenancy was created which had to be determined by a fresh notice to quit. It is common ground between the parties that the Rent Restriction Act would normally apply in the area in which the house in question is situated. But for the certain provisions of the Displaced Persons (Compensation and Rehabilitation) Act 1954 the rights and obligations of the parties would be governed by the provisions of the Rent Restriction Act. Under these circumstances even if the landlord had received rent or amount equivalent to rent from the tenant after the tenancy had been determined by a notice to quit and even if he accepted rent for a period subsequent to the termination of the tenancy such acceptance of rent would not amount to waiver of the notice to quit and it is not open to the tenant to contend that by accepting rent the landlord created a fresh tenancy in favour of the tenant. Under these circumstances the 4th point urged by Mr. Parikh must be rejected.;

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