Sinha, C.J. - (1.) This is a reference in which three questions have been referred to us for answer. The relevant facts are all set out in the order of reference. It will be convenient to refer to it briefly. The suit was for eviction of the defendant, a monthly tenant, from one ground floor room within the premises 71A, Colootolla Street, Calcutta. A notice to quit dated 21st September. 1961 was given by the landlord through his lawyer, a copy of which is set out in the order of reference. It sets out two grounds, corresponding to clauses (a) and (f) of Section 13(1) of the West Bengal Premises Tenancy Act. 1956 (hereinafter referred to as the 'said Act'). There is no express statement therein to the effect that in default of making over possession a suit will be filed. As the referring Court was of the view that the proposition laid down in the decision of the Division Bench in Dulin Chand Dutta v. Renuka Banerjee, 68 Cal WN 296 that if a notice to quit would not, by itself, be a notice of suit, the mere mention of the ground of ejectment in a notice to quit, would not make it so, is too wide, a reference was made to a Full Bench for its decision on three points which have been 5et out in the Order of Reference and are as follows: (1) In a consolidated notice under the Transfer of Property Act (sections 106 and 111) and Section 13(6) of the West Bengal Premises Tenancy Act. 1956 is it necessary to make a statement that a suit will be filed if the notice is not complied with? (2) Where notice is given, setting out any of the grounds in Section 13 of the West Bengal Premises Tenancy Act. 1956 and particularly if it is written by a lawyer on behalf of the landlord, is it not a sufficient compliance with the provisions of Section 13(6), although there is no express statement that a suit will be filed in default of compliance with the notice ? (3) Is the notice to quit in this case a legally valid notice?" Under the Transfer of Property Act (4 of 1882) a contractual tenancy which is in the nature of a monthly tenancy, that is to say in the nature of a lease from month to month, could be terminated by the landlord by serving upon the tenant. 15 days' notice expiring with the end of a month of the tenancy, provided of course that there was no contract or local law or usage to the contrary. The only condition for terminating the tenancy was the service of such a notice. Owing to hardship caused by the dearth of accommodation, Bent Control Laws have been enacted all over the world, and have been more or less continuously imposed in Bengal since 1920. We are concerned in this case with the provisions of the said Act. Chapter III of the said Act deals with suits and proceedings for eviction. Section 13 gives protection to tenants against eviction. The relevant provisions in Section 13 are as follows: "13. Protection of tenant against eviction (1) - Notwithstanding anything to the contrary in any other law, no order or decree for the recovery of possession of any premises shall be made by any Court in favour of the landlord against a tenant except on one or more of the following grounds namely: - (a) where the tenant or any person residing in the premises let to the tenant without the previous consent in writing if the landlord transfers, assigns or sublets in whole or in part the premises held by him: (f) where the premises are reasonably required by the landlord either for purposes of' building or rebuilding or for making thereto substantial additions or alterations or for Ms own occupation if he is the owner or for the occupation of any person for whose benefit the premises are held: (6) Notwithstanding anything in any other law for the time being in force, no suit or proceeding for the recovery of possession of any premises on any of the grounds mentioned in sub-section (11 except the grounds mentioned in clauses (i) and (k) of that sub-section shall be filed by the landlord unless he has given to the tenant one month's notice expiring with a month of the tenancy."
(2.) It will thus be seen that a tenant gets protection against the passing of in order or a decree for the recovery of possession of any premises in his occupation unless he falls within one or the other of the eleven grounds set out in sub-section (1) of Section 13. For our purposes, it is most important to bear in mind the fact that the immunity granted under Sub-section (1) is from an order or a decree for recovery of possession being passed against the tenant. This has been expressly stated in the provisions of the sub-section itself. In other words no tenant can possibly be mistaken as to two facts, firstly that if he does not come within any of these eleven exceptions mentioned in sub-section (1), he is completely protected from any order or decree being passed against him for recovery of possession of any premises in his occupation and secondly that if he does come within any of these exceptions the landlord is entitled to an order or a decree being obtained for the recovery of possession of the premises in his occupation; provided of course that there is nothing to prevent him from doing so by any other provision of law. There are two provisions of law to be considered in this connection. Assuming that the tenant comes within one or more of the eleven grounds which entitles the landlord to obtain an order or decree for recovery of possession there must be a termination of the tenancy under Section 106 of the Transfer of Property Act. The landlord is not entitled to an order or decree for possession before terminating the tenancy, which is contractual. A second condition is imposed by sub-section (6) of Section 13. It speaks of a notice to be given before a suit or proceeding is instituted, and the period of the notice is one month expiring with a month of the tenancy. It must be remembered that Section 106 of the Transfer of Property Act does not speak of the filing of any suit or legal proceeding. It merely lays down the procedure for terminatin" a contractual tenancy. Section 13(6) speaks about institution of a suit or proceeding for the recovery of possession, on any of the grounds mentioned in sub-section (1) except the grounds mentioned in clauses (i) and (k) of that sub-section. This is of the greatest importance because we must not lost sight of the fact that subsection (6) which introduces for the first time a "notice of suit" itself provides that such a notice can be given only if one or more grounds mentioned in sub-section (1) except the prounds mentioned in clauses (i) and (k) exist and the existence of these ground? is a pre-condition for the filing of a suit or proceeding for the recovery of possession. A question thereupon arose as to what notice was contemplated under Section 13(6) of the said Act. Was it a notice to quit, or a notice of suit, or a combined notice to answer both the above purposes? This question amongst others was referred to a Special Bench in Suraya Properties Private Ltd. v. Bimalundu Nath Sarkar. 67 Cal WN 977=(AIB 1964 Cal 1) (SB). I set out below the Question and its answer: "Question No. 2. What notice is contemplated under Section 13(6) of the West Bengal Premises Tenancy Act, 1956 is it a notice to suit or a notice if suit or a combined notice to answer both the above purposes? Is i, a notice, required in addition to a notice under Section 106 of the Transfer of Property Act or a notice in lieu of it? What, if any are its necessary elements or contents? Is it necessary to mention in it the ground or grounds of ejectment under the aforesaid Act on which the suit is to be brought ? Or, in other words need it be a notice of such grounds? Answer. A notice as contemplated under Section 13(6) isessentially notice of suit. Where it was necessary to serve a notice to quit under Section 106 of the Transfer of Property Act, it is still necessary to serve it. A notice under section 13(6) may be combined with a notice under Section 106 but the period of such combined notice shall not be less than a month expiring with a month of the tenancy. There is no prescribed form of such a notice. It is not necessary to mention in a notice under Section 13(6) the ground or grounds if ejectment for which a suit is to be instituted for recovery of possession. There is, however, nothing to prevent the landlord from setting out such ground in the notice. The notice, however, will not be a notice of such grounds." The answer is binding on us and indeed, it is binding of all division benches of this High Court until and unless set aside by the Supreme Court. It will be observed that the answer specifically lays down that there was no prescribed form for a notice under Section 13(6). It has, further been held that in a notice under Section 13 (6), the ground or grounds of ejectment for a suit instituted for recovery of possession need not be mentioned, It has also been held that there could be a combined notice under Section 106 of the Transfer of Property Act and Section 13(6) of the said Act. If, ' therefore, a notice under Section 13(6) is a notice of suit, the question arises as to what are the contents of a notice which will be considered a; a notice of suit Where, in such a notice, it is expressly mentioned that upon a non-compliance with it, a suit or proceeding will be instituted, there is no difficulty, because it is an express notice of the fact the a suit or proceeding is contemplated. Since, however there is no prescribed form for such a notice, no such express words are essential. In my opinion, the same principle should be applied at has been applied in respect of notice to quit given under Section 106 of the Transfer of Property Act Under that provision of law, the question arose as to what would be the form of a notice-to-quit. The object of a notice-to-quit is to terminate the contractual tenancy and the law lay down the period for which notice was to be given. Some Courts took the extreme view that there must be the utmost technical compliance with the provisions of S. 106. But the matter was set it rest by the Privy Council in Harihar Banerii v. Ramsashi Rov. 45 Ind App 222=(AIR 1918 PC 102). In that case, the plaintiffs alleged that they were the owners of certain lands in village Char Ram-krishtopur known as iama Nidhi Ram, which was in possession of the appellants is their tenants from year to year at in annual rent of Rs. 25 and that the tenancy had been determined by a notice to quit at the end of the Bengali year 1317 (April 11, 1911). They claimed possession. The defendants inter alia disputed the validity of the notice. What happened was that in the notice to quit, it war- Tientioned that the area of the land was 6 cottahs, and certain boundaries were given. It was admitted by the tenants that thev occupied an area of 2 highas 2 cottahs of land at a jama of Rs. 25 per year and it was urged that the notice was bad as it spoke of 6 cottahs and the boundary was disputed. Lord Atkinson delivering judgment said as follows: "To tenants who, like the principal defendants, were admittedly in possession if the entire jama and paid that rent, that must have been clear to demonstration but it is contended that all this clearness is obscured by the statement in the schedule, that the lands the possession of which is to be delivered up are one plot of bastu lands 6 cottahs in extent ......... The principal defendants knew perfectly well that a plot of 6 cottahs in extent is only a fraction, one-sixth or one-seventh, of the lands in the entire jama; they must presumably have known the law that a notice requiring a tenant to quit only a portion of the holding of which he was tenant was bad and ineffective. But the presence of the words "6 fottahs" in the schedule it was, in effect, contended, necessitates that the landlord should be presumed to have intended to serve a notice bad and ineffectual to his own knowledge rather than a valid and effectual one. and that the notice itself should be construed ut res magis pereat quam valeat instead of the contrary. No argument has been addressed to their Lordships and no authority produced to sho v that the principles of the above recited English cases are inapplicable to Indian cases. From the very nature of a notice to auit, which is merely the formal expression of the landlord's will that the tenancy his tenant shall terminate, it would prima facie appear that they are applicable.........In their Lordships' view the erroneous statement of the contents of the jama does not predominate over the description given of 't in the earlier portion of the notice to quit. They have not the slightest doubt that the principal defendants were perfectly well aware that the notice required the defendants, as the plaintiffs desired and intended that it should, to quit and deliver up possession of the entire jama for which they for years paid the rent of Rs 25.........Their Lordships are, therefore, clearly of opinion that the notice was a good notice to quit the holding in its entirety, whatever its area might be " Reference may also be made to a decision of R. C. Hitter, j. in Sudhansu Badini Debi v. Narayan Chandra, 48 Cal LJ 411. In that case, the learned Judge was deciding the validity of a notice to quit under the Transfer of Propertv Act. In the notice to quit, instead of saving that the tenant was to make over possession upon the expiry of the month of Agrehayan 1337, it called upon the tenant to vacate on the 1st of Pous l.?37. The suit had been dismissed on the ground that this was a bad notice to quit, not in conformity with the provisions of Section 106 of the Transfer of Property Act. In disagreeing with the verdict the learned Judge said as follows: 'In my judgment the lower appellate court has overlooked the principles formulated in the decision of the case, Ismail Khan Mahomed v. Jaigun Bibi, (1900) ILR 27 Cal 570 when Mr. Justice Banerjee and Mi. Justice Stevens following the observation of Lord Justice Lindley in the case of Sidebotham v. Holland (1894) 1 QB 378 said that the validity of a notice to quit, ought not to be determined on the splitting of a straw. In my judgment, therefore, the lower appellate court is wrong in holding that the notice in the present case is not a valid notice."
(3.) Before us, it is not disputed that a notice under Section 13(6) would be valid of the notice can be said to be a notice of suit by express words or necessary intendment. In fact, a Paragraph from the judgment of Bachawat J. in the above-mentioned Special Bench case is cited before us which runs as follows: "The notice under Section 13(6) is a notice of suit or proceeding. The notice sufficiently complies with the requirement of Section 13(6), if, by express words or necessary intendment, it conveys to the tenant conversant with the fact and circumstances of the case the information that the landlord intends to file a suit or proceeding for recovery of possession of the premises on any of the grounds mentioned in Section 13(1) except Section 13(1)(i) and (k) on the expiry of the period of the notice ^ notice which give.- this information is sufficient and it is not necessary that the notice should mention the particular ground or grounds on which the suit or proceeding will be instituted ";