- (1.) 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.
(2.) 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 11, 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 sub-let a portion of the premises to two persons without the permission of the plaintiffs and. without having any right to sub-let the premise. 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 June30, 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.
(3.) The plaintiffs claim for eviction on the ground that the premises were required by them bond 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 S. 106 of the Transfer of Property Act, 1882. The premises are, however, situated in Jabalpur in which the Madhya Pradesh Accommodation Control Act, 1955 (No. 23 of 1955) (herein referred to 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 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 S. 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 S. 106 of the Transfer of Property Act 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 Transfer of Property Act and the Accommodation Act: and (4) that there was no cause of action for the suit on August 14, 1959 under S. 5 of the Accommodation Act because no rent was in arrears only on that date. We shall deal with the points in the order in which he has mentioned them.;