BIJAYESH MUKHERJI,J. - (1.) STROUD 's Judicial Dictionary, 3rd edn., p. 2309, 2. Dictionary of English Law by Earl Jowitt, p. 48, 3. Nalinakhya Bysack v. Shyam Sunder Haldar, : [1953] 4 SCR 533, 4. Commissioner for Special Purposes of Income -Tax v. Pemsel, (1891)AC 531. 5. Maxwell's Interpretation of Statutes. 10th edn. p. 321, 6. R. v. East Ardsley (Inhabitants), (1850) 14 QB 793, at p. 801, 7. Fisher v Val de Travers Asphalte Co., (1876) 1 CPD 259, (serials 6 and 7 cited by Craies on Statute Law, 6th edn., p. 106). 8. Babulal Dhandhania v. Gauttam and Co., : AIR 1950 Cal 391 , 9. Meghraj Sampatlall v. Raghunath and Sons, : AIR 1955 Cal 2 78, 10. Suraya Properties (Pvt.) Ltd. v. Bimalendu Nath Sarkar. : AIR 1964 Cal 1. Referred to.]
(2.) SAY , 'suit' is distinct from 'proceeding'. Still the notice here is too good a compliance with Section 13 (6), which does not say: 'unless the landlord has given to the tenant one month's notice expiring with a month of the tenancy, and specifying whether he will file a suit or a proceeding.' It says instead: 'unless he has given to the tenant one month's notice expiring with a month of the tenancy,' That is just what has been given, granting the landlord the freedom to file a suit or a proceeding, as is his pleasure. To that extent, it is no doubt a matter for the landlord's election in which however Sub -section (6) (of Section 13) does not give any stake to the tenant. His only stake is in one month's notice expiring with a month of the tenancy which the tenant here has got very much indeed. A prosecution for criminal trespass (Section 441. of the Penal Code) may very well be regarded as a proceeding. But no such prosecution lies on facts as here. There is no mens rea, because there has been no intent whatever on the part of the tenant (the first defendant) to commit an offence, intimidate, insult or annoy any person in possession of '81'. No such intent, no criminal trespass. 'Binani' must have been annoyed a lot after the first defendant failed to quit '81' on the expiry of the last moment of the last day of April 1959 : just what the notice had asked it to do. Still criminal trespass remains as far as ever. For one thing, such annoyance was never intended, a consequence though it was. But the concept of criminal trespass is such that it can never, never be judged and determined in the glare of consequences. For another, 'Binani' was never in physical possession of '81', entry into or upon which, or unlawfully remaining where, is sought to be made the foundation of criminal trespass. Again, a criminal court has, no doubt, the requisite power to restorePossession of immoveable property under Sec. 22 of the Code of Criminal Procedure. But when? Where a person gains wrongful possession of immoveable property by his unlawful acts; more, after such wrong -doer has been convicted of an offence attended by criminal force within the meaning of Section 350 of the Penal Code, or show of force within the meaning of Section 349 ibid., or by criminal intimidation; and it appears to the criminal court that by such criminal force etc., another has been dispossessed of immoveable property. And then there can be no manner of a trespass here -not even the tortious act of civil trespass -when the first defendant is a 'person' still continuing in possession of '81' after the termination of its (contractual) tenancy on the last moment of the last day of April 1959, against whom a decree for eviction has yet to be made by this Court, a court of competent jurisdiction, and who is, therefore, a statutory tenant within the definition of 'tenant' in Section 2(h) of the Premises Tenancy Act. Tenancy and trespass, are concepts mutually exclusive of one another, just as, say, the concepts of black and white are. Tenancy excludes trespass, and vice versa. The extravagant contention about criminal trespass cannot, therefore, be accepted without converting black into white or vice versa.
(3.) THE concept of a notice of suit firmly established itself in 1963 when the Special Bench rendered its decision in Suraya Properties' case and when or thereabouts the decision came into the reports too, : AIR 1964 Cal 1. So, the drafter of the notice in 1959 drafted it in the old way, not caring so much to make it clear that a suit would follow the disobedience of the demand made therein. Not that it will serve as an excuse. It will not. If the law of the land calls for a notice of suit you did not give such notice at your peril, no matter that it required a Special Bench years later to proclaim the law (already there) clear and loud. All that is emphasized is that in March 1959 the concept of a notice of suit had not finally emerged, as it did in 1963, and has been holding the field ever since. Still, reading the notice fairly and as a whole, with the four telling grounds it mentions, coupling with the threat of costs, consequences and mesne profits, -a threat which goes hand -in -hand with the threat of a suit -it may be presumed that the tenant, the like of whom is seen Irere, so being in stature and organization, paying Rs. 2,000 a month as rent, as also doing business in the very hub of trade and commerce in Calcutta, so unlike a bhujawalla jogging on with a poorly establishment in a hovel, or a greengrocer eking a living on payment of a rupee a day, if that, as rent for the little space he sells his vegetables from, knows that it pays the forfeit of its tenancy on any one of these four grounds and that a notice as this is the precursor of a suit. No backwoodsman, therefore, is such a tenant. And not to credit so little to a tenant so big is to debit so much against common sense and natural human conduct.;