Grover, J. - (1.) This is an appeal by special leave from a judgment of the Bombay High Court and arises in the following circumstances.
(2.) The suit premises consisting of a shed at 130, Shuklaji Street, Bombay are the property of the appellant, and were let out to the respondent as a monthly tenant. By means of a notice dated June 13, 1956 the tenant was informed by the landlord that he was in arrears of rent since July 1, 1953 and was liable to pay to the landlord a sum of Rs. 1826 being the amount of rent calculated up to the date of the notice. As he was an habitual defaulter and had been making illegal use of a passage attached to the premises without the consent of the landlord his tenancy was being terminated. He was further called upon to make payment of the amount of arrears. The tenant did not vacate the premises and a second notice was sent dated October 18, 1957 calling upon him to deliver vacant possession of the premises which were stated to be in his occupation as a monthly tenant. In the second notice another ground was mentioned for getting the premises vacated. It was that the same were required for the personal use and occupation of the landlord. It may be mentioned that prior to the despatch of the second notice the landlord had been paid and he has received the amount of arrears which were said to be due in the first notice. In other words the rent had been received upto March 1955. On October 30, 1957 the tenant made a tender by means of a cheque of the full amount of arrears then due but the cheque was returned by the landlord.
(3.) On March 31, 1958 the landlord filed a suit for ejectment and for recovery of rent from April 1955 to November 1957 and compensation for use and occupation from December 1957 to February 1958 as also for a certain amount for vacant possession being rack rent of twelve months' rent, the total amount of all the items being Rs. 2448.12 Np. In July 1960 the plaintiff sought and was allowed to amend the plaint by introducing the following paragraph: "Notice dated 13th June 1956 under Section 12 of the Bombay Rent Control Act was given by the Plaintiffs advocates to the defendants demanding payment of arrears of rent from 1st July 1953 upto date 1956, which has been duly acknowledged. Copy of the said notice is hereto annexed and marked Ex 'A'." The ejectment was claimed on the ground of default in payment of arrears of rent and for personal use and occupation. The learned trial Judge held that by serving a second notice and by various acts and conduct the landlord showed a clear intention to waive and condone the ground of default in payment of arrears contained in the first notice. As regards the ground of personal requirement the trial court was not satisfied that the premises were reasonably and bona fide required by the plaintiff for his own use. The suit for eviction was dismissed although a decree for Rs. 1822.97 was granted. The matter was taken in appeal to the Court of Small Causes. The appeal court held that there was no waiver on the part of the landlord as regards the default committed by the tenant in not paying the arrears of rent within one month after the receipt of the first notice. In other words the service of a second notice and other facts which had been found by the trial court did not amount to a waiver of the first notice. But it was of the view that the demand of the arrears of rent made in the notice dated June 13, 1956 was excessive and illegal which made the notice invalid. The other point about personal necessity appears to have been abandoned by the plaintiff before the appeal court. The landlord flied a petition under Article 227 of the Constitution in the High Court which was dismissed in limine.;