M.K.SHAH - (1.) . This is a tenants revision against an order of ejectment which was passed against him by the trial court and which was confirmed in appeal by the lower appellate court.
(2.) Mr. Modi however contends that in the instant case the tenancy has not been terminated by a valid and legal notice to quit. The rent note Ex. 24 shows that the tenancy commenced from 11-9-1961 for a period of 11 months and 29 days and the rent was payable every month. It is nowhere stated in the rent note that the rent was payable on the first day of each month or that the tenancy commenced on the first of each month and ended on the last day of each month. As the tenancy commenced from 11-9-1961 the month of tenancy will be from 11th of each month to the 10th of the succeeding month. The notice to quit Ex. 25 calls upon the tenant to vacate the premises on 31-7-1971 on the expiration of the month of tenancy that is on 1-8-1971 and it calls upon the tenant to hand over possession on 1-8-1971. As provided in sec. 106 of the Transfer or Property Act a lease of immovable property for agricultural or manufacturing purposes shall be deemed to be a lease from year to year terminable on the part of either lessor or lessee by six months notice expiring with the end of a year of the tenancy and a lease of immovable property for any other purpose shall be deemed to be a lease from month to month terminable on the part of either lessor or lessee by fifteen days notice expiring with the end of a month of the tenancy. The notice ex-facie shows that it does not expire with the end of the month of tenancy which was from the 11th day of a month to the 10th day of the succeeding month. The notice expires with the end of 31-7-1971 on the basis that the month of tenancy was from the first of each month to the last day of the same month. Mr. Modi in this connection strongly relies on Bhagbandas Agarwalla v. Bhagbandas Kanu and Others A.I.R. 1977 S.C. 1120 wherein it has been observed. "It is indisputable that under sec. 106 of the Transfer of Property Act the notice to quit must expire with the end of the month of the tenancy" Mr. Desai the learned Advocate appearing for the landlord relies on the observations of the Supreme Court in the very judgment to the effect that "A notice to quit must be construed not With a desire to find faults in it which would render it defective but it must be construed ut res magis valeat quam pereat. The validity of a notice to quite as pointed cut by Lord Justice Lindley I .J. in Sidebotham v. Halland (1895) 1 Q.B. 378 ought not to turn on the splitting of a straw. It must not be read in a hyper-critical manner nor must its interpretation be affected by pedagogic pendantism or over refined subtlety but it must be construed in a common sense way". There is no dispute that these guidelines with regard to the construction of notice have to be applied in a case where there is room for some doubt. In the instant case there is no such room because the notice is very clear and specific. It terminates the tenancy not with the end of the month of tenancy which would be on the 10th day of the month but it terminates the same with the end of the calendar month and this being in clear violation of the provisions contained in sec. 106 of the Transfer of Property Act there is no scope for any wider construction. Mr. Modi has also relied on an unreported decision of this court in U.M Mathews v. Jyaswal Chimanlal Maneklal (Civil Revision Application No. 557 of 1975) decided on 4th October 1977 by P D Desai J wherein it is clearly held relying on a decision of the Division Bench of the Bombay High Court in U. A. Manufacturing Co. v. Motilal Bombay Mills A.I.R 1043 Bom. 206 that notice to quit must always expire with the expiration of the period of the original tenancy unless the parties by a contract made between themselves have agreed otherwise.
(3.) Mr. Desai here also draws my attention to the observations of the lower appellate court to the effect that in the instant case the parties after efflux of time of 11 months and 29 days which was the original term of tenancy have changed the month of tenancy from 11th of each month to the first of each month. In my opinion there is no warrant for the view taken by the lower appellate court which is based on no evidence and which is against the documentary evidence on record. There is no material on record to justify such a finding The very fact that after the expiration of the period for which the tenancy was originally granted a formal rent note was executed shows that the defendanttenant continued on the same terms and conditions under which he was inducted on the premises originally. The original term expired on 9-9-1962. The tenant continued in possession and the rent note was executed on 7-9-1963 and therefore if in the meanwhile there was any change of the month of tenancy effected by the parties the rent note would have mentioned st. Again the notice to quit Ex. 25 dated 2-6-1971 also in clear terms states as follows : Translated into English it would mean you have taken on rent the ground floor portion of the suit premises from 11-9-1961 on a monthly rent of Rs. 16.00 and you have executed in our favour a rent note in connection there with on 11-9-1961. If the month of tenancy had been changed the notice would have mentioned that. But Mr. Desai points out that in the notice it is stated that the lent was payable from the first of each month and that the tenant had paid rent upto 30-10-1970 and was in arrears from 1-11-1970 to 31-5-1971 and that this also indicates that the month of tenancy was changed according to the English calendar commencing from the first of each month. I am unable to uphold this contention. Payability of rent is a different and distinct concept from the concept of commencement and continuance of a month of tenancy. Month of tenancy may commence from the middle of the month or any other day of the month and may end the next month on the expiration of that day and the rent may be payable from the first of each month ending with the last day of the month. In the instant case it seems in view of the provisions contained in sec. 27 read with Rule 4 of the rules made under the Rent Act the landlord who is enjoined to collect rent from the tenant according to the English calendar collects the same accordingly. But that does not mean that he has also to change the month of tenancy. There was therefore no warrant for assuming that the month of tenancy was changed and that it commenced on the first day of each month as per the English calendar according to which rent was being collected when the notice to quit was given. It does not as is evident from the bare reading thereof terminate the tenancy expiring with the end of the month of tenancy and therefore is not a valid and legal notice. In this view of the matter the landlord was not entitled to any reliefs and his suit was bound to fail.;