Abdul Aziz Vs. Abdul Majid, 46 DLR (AD) (1994) 121

Case No: Civil Appeal No. 90 of 1993

Judge: Latifur Rahman ,

Court: Appellate Division ,,

Advocate: Miah Abdul Gafur,Nurul Huq,,

Citation: 46 DLR (AD) (1994) 121

Case Year: 1994

Appellant: Abdul Aziz

Respondent: Abdul Majid

Subject: Interpretation of Statute, Property Law,

Delivery Date: 1994-4-4

 
Supreme Court
Appellate Division
(Civil)
 
Present:
Shahabuddin Ahmed CJ.
ATM Afzal J.
Mustafa Kamal J.
Latifur Rahman J.
 
Abdul Aziz ....................Defendant-Appellant
Vs.
Abdul Majid ................... Respondent
 
Judgment             
April 4th, 1994
 
Premises Rent Control Ordinance (XX of 1963)
Section 2 (Uma)
A person continuing in possession after termination of a tenancy in his favour is also a tenant.…. (11)
Interpretation of Statutes
Rent Control legislation is a special law giving greater protection to a tenant so long he pays and performs the conditions of the tenancy. ….. (11)
 
Cases Referred to-
Pradhip Das alias Shambhu and others Vs. Kajal Das Sarma and others 44 DLR (AD) 1; 32 DLR (AD)171.
 
Lawyers Involved:
Miah Abdul Gafur, Advocate-on-Record - For the Appellant.
Nurul Huq, Senior Advocate (Khairul Haque, Advocate with him) instructed by AKM Shahidul Huq, Advocate-on-Record -For the Respondent.
 
Civil Appeal No. 90 of 1993
(From the judgment and order dated 2.9.93 passed by the High Court Division, Dhaka in Civil Revision No. 2291 if 1990).
 
JUDGMENT
 
Latifur Rahman J.
 
This appeal by the defendant following leave, is directed against the judgment and order of a Single Judge of the High Court Division passed in Civil Revision No. 2291 of 1990 affirming the judgment and decree passed by the Subordinate Judge, 3rd Court and SCC Judge, Dhaka in SCC Suit No. 6 of 1985 for ejectment of a monthly tenant.    
 
2. The case of the plaintiff-respondent is that, defendant-appellant was inducted as a periodical lessee in the suit premises for a period of 11 months beginning from 1st day of December, 1983 to October, 1984 at a monthly rental of Taka 800.00 per month by a written agreement on 1.12.83. According to the plaintiff, there was an option of renewal of the tenancy with the lessor. After the expiry of the period of 11 months the plaintiff filed the suit for eviction of the defendant.
 
3. Defendant contested the suit by filing a written statement contending, inter alia, that the suit was not maintainable as no notice under section 106 of the Transfer of Property Act was served upon the defendant; that the lease in question was not a periodical lease and that he was not a defaulter in payment of rent as he regularly deposited the rent in House Rent Case No. 367 of 1984.
 
4. The learned SCC Judge decreed the suit and passed the order of eviction of the defendant from the suit premises on the finding that no notice under section 106 of the Transfer of Property Act was necessary prior to the institution of the suit as the tenancy of the defendant was terminated by efflux of time.
 
5. The learned Single Judge of the High Court Division took notice of the decision in the case of Pradhip Das alias Shambu and others Vs. Kajal Das Sarma and others, 44 DLR (AD) 1 and held that "In the instant case it is admitted that the right to renew the lease was with landlord. In such circumstances notice under section 106 is not required." Consequently he upheld the ejectment order of the trial Court.
 
6. In revision, defendant specifically submitted that in view of section 18 of the Premises Rent Control Ordinance, the trial Court committed an error of law by holding that the petitioner's lease was determined efflux of time and as such the SCC Judge committed an error by holding that notice under section 106 of the Transfer of Property Act was not necessary prior to the institution of the suit.
 
7. Although the learned single Judge of the High Court Division held that no notice under section 106 of the Transfer of Property Act is required as the tenancy expired by efflux of time, but the main question for consideration is, whether the tenant is liable to be ejected solely on this ground of expiry of the period of lease without specifying any other valid grounds as provided in the Premises Rent Control Ordinance.
 
8. Leave was granted to consider whether in view of the provision of section 18 of the Premises Rent Control Ordinance read with section 2 (Umma) of the Ordinance the plaintiffs suit was maintainable when the lessor's case was not one of default nor one of bonafide requirement and the tenant was holding over as a statutory tenant, paying regular rent before the Rent Controller. Leave was also granted to consider as to whether the learned Single Judge of the High Court Division misappreciated the reported decision, 44 DLR (AD) 1.
 
9. Admittedly in this case no notice under section 106 of the Transfer of Property Act was served upon the defendant determining the tenancy and as grounds of eviction neither default nor bonafide requirements have been pleaded. The courts below held that such a notice is not required to be served as the tenancy expired by efflux of time without at all considering sub‑section (2) of section 18 of the Premises Rent Control Ordinance.
 
10. Section 18 of the Premises Rent Control Ordinance reads as follows:
 
"18. No order for ejectments ordinarily to be made if rent paid at allowable rate.-(I) Notwithstanding anything contained in the Transfer of Property Act, 1882, or the Contract Act, 1872, no order or decree for the recovery of possession of any premises shall be made as long as the tenant pays rent to the full extent allowable by this Ordinance and performs the conditions of the tenancy (Relevant portion quoted).
 
11. The non-obstante clause of sub‑section (1) of section 18 shows that the provision of Transfer of Property Act and the Contract Act will not apply in respect of this section. In the present case neither default/bonafide requirement nor any of the clauses (a) to (e) of the Proviso to sub‑section (1) of section 18 of the Premises Rent Control Ordinance have been pleaded as a ground for eviction other than expiry of the period of lease as per agreement. Tenant has been defined in section 2(Uma) of the Premises Rent Control Ordinance, which also says that a person continuing in possession after termination of a tenancy in his favour is also a tenant. It is on record that after the expiry of the period of lease the tenant is continuing in possession and is paying rent in the House Rent Control Case No. 367 of 1984 regularly. In that view, of the matter, defendant is a tenant under the Premises Rent Control Ordinance and in that sense he is a statutory tenant. Rent Control legislation is a special law which gives a greater protection to a tenant against eviction so long he pays rent to the full extent allowable by this Ordinance and performs the conditions of the tenancy. Further, reading section 18 of the Premises Rent Control Ordinance it appears that a tenant shall not be liable to eviction except on one or more of the grounds laid down in this section. As per section 18 of the Ordinance on the ground of default, bonafide requirements and on other clauses mentioned in (a) to (e) of the proviso to sub‑section (I) of section 18 a tenant can be evicted.
 
12. Mr. Md. Nurul Huq, learned advocate' appearing for the plaintiff-respondent, on a reference to sub‑section (2) of section 19 of the, Ordinance argued that the period of lease having expired, that itself is a satisfactory cause within clause (e) of proviso of sub‑section (1) of section 18 of the Ordinance to evict the defendant tenant. Section 18 (2) reads as follows:
 
"That fact that the period of the lease has expired, or that the interest of the landlord in the premises has been transferred shall not of itself be deemed to be a satisfactory cause within the meaning of clause (e) of the proviso to sub‑section (1), provided that the tenant is ready and willing to pay rent to the full extent allowable by this Ordinance."
 
Thus, it appears that the expiry of the period of lease or that the interest of the landlord in the premises has been transferred shall not by itself be a satisfactory ground within the meaning of clause (e) of he proviso to sub‑section (1) of section 18 to evict a tenant. Hence, the expiry of the period of lease as argued by Mr. Nurul Huq cannot by itself be a valid ground for termination of tenancy in the present case. It has been already referred herein above, that no valid ground for ejectment of the monthly tenant as contemplated in the provisions of section 18 of the Ordinance has been set up as ground for eviction. Hence, the argument of the learned Advocate for the respondents cannot be accepted.
 
13. Lease of immoveable property is created under section 105 of the Transfer of Property Act and as such statutory notice must be given under section 106 of the Transfer of Property Act for termination of tenancy. The landlord should comply both with the provisions of section 106 of the Transfer of Property Act and also with the provisions of the special enactment. The provisions of the Rent Control Ordinance are in addition to this section of notice under Section 106 of the Transfer of Property Act. There is nothing in the Ordinance which also absolves the landlord to serve a notice under section 106 of the Transfer of Property Act. Unless the tenancy is‑ determined by giving a notice as contemplated under section 106 of the Transfer of Property Act no suit for ejectment of a monthly tenant can be filed.
 
14. It further appears that the learned Single judge of the High Court Division misappreciated the decision reported in 44 DLR (AD)1. That was a case where the main question was whether a monthly tenancy is heritable, and in that decision it was held after review of our judgment in 32 DLR (AD)171, that a monthly tenancy is heritable. In that decision it was also observed that section 18 of the Ordinance shall prevail notwithstanding anything contained in the Transfer of Property Act, 1882 and of the Contract Act, 1872 and as long as the tenant pays rent in full regularly and performs all other conditions of the tenancy he shall not be evicted. In that decision at paragraph 8, section 111 of the Transfer of Property Act was referred to show how a lease of an immovable property is determined by various ways and grounds and in that section "death" was not mentioned as a ground for determination of lease. The reported decision is a case relating to a contractual tenant and not with regard to a tenant who is a statutory tenant being a person in possession and Paying the rent to the landlord. This distinction having been overlooked an error has crept in the judgment of the High Court Division. Thus, 44 DLR (AD) 1 has not been correctly appreciated by the learned Single Judge of the High Court Divi­sion.
 
For the foregoing reasons, the judgment of the High Court Division is set aside and the plaintiffs suit for ejectment is dismissed. The appeal is allowed without any order as to costs.

ATM Afzal J:
 
I have perused the judgments prepared by my teamed brothers, Mustafa Kamal and Latifur Rahman, JJ. I agree that the appeal should be allowed. As for the reasons, however, I find myself more in agreement with those in the judgment of Mustafa Kamal J. I do not think that there is anything useful which I may add in support of our ultimate conclusion that a tenant like the defendant is not liable to be evicted merely on the ground that the tenancy has terminated by efflux of time.
 
Mustafa Kamal J:
 
While agreeing with my learned brother Latifur Rahman, J, that die appeal should be allowed I would like to address myself on the matters which in the light of the order granting leave and in the light of arguments advanced during the hearing of the appeal appear to me to be the crux is issues in this appeal.
 
18. The trial Court accepted the landlord ­respondent's case that the tenant-appellant was a tenant in the shop premises for a fixed period of 11 months with effect from 1.12.83 to 31.10.84 on a monthly rent of Taka 800.00, the option of renewal being with the landlord. On 1.10.84 the landlord ­respondent sent a notice by registered post with AD through his lawyer stating that lease shall not be renewed and in the appellant fails to quit and vacate the premises with the expiry of the last day of October, 1984, he will be treated to he an unauthorised occupier and will be liable to pay compensation @ Taka 100.00 per day. The postal peon returned the notice with an endorsement that the addressee does not stay in the address given. The trial Court found that the landlord‑respondent had given the correct address of the appellant in that notice, but failed to give a decision as to whether the service of the notice was a valid service or not. However, on 18.10.84 the landlord-respondent sent another legal notice in the same terms for service through his Manager, PW 2 Mohammad, who served the same by hanging it in the shop premises in the presence of PW 3 Shaukat Ali on 22.10.84 upon the refusal of the appellant to accept it. The appellant replied to the second notice on 29.10.84 through his lawyer refusing to quit. The respondent filed the suit for eviction on 26.2.85. The case of bona fide requirement or default or any other ground of ejectment was not taken in the suit. The only ground taken was that the lease had expired with efflux of time.
 
19. The trial Court held that with the expiry of the term of lease on 31.10.84 and in the absence of a fresh agreement of lease, the relationship of landlord and tenant between the parties had come to an end and the appellant had no legal right to stay in the demised premises. Discussing the evidence on record the trial Court held that the second notice dated 18.10.81 was validly served upon the appellant but it was not a notice under section 106 of the Transfer of Property Act, as the landlord merely wanted the tenant to quit and vacate on the expiry of the term of lease. The trial Court then hold that in any view of the matter no notice to quit is necessary where the action of ejectment is brought after the term of the lease has expired and the tenancy has come to an end by efflux of time and the landlord has not accepted the rent from the tenant after the expiry of the term. No notice was taken to the appellant's unchallenged assertion that after the expiry of the tenancy he has been depositing rent regularly and without default to the House Rent Controller.
 
20. The High Court Division on a mistaken appreciation of our judgment in the case of Pradhip Das @ Shambhu Vs. Kazal Das Sarma, 44 DLR (AD) 1 (para 8) and quoting out of context from para 11 thereof that "the tenancy in this case is a contractual tenancy, Right in such a tenancy is ordinarily heritable, though this right is limited "to enjoy" and occupy the property only, and the tenant is liable to be so ejected either on the expiration of the fixed period, if any, or by notice to quit", concurred with the views of the trial, Court. No consideration was given to section 18(2) of the Premises Rent Control Ordinance, 1963, now section 18(2) of     the Premises Rent Control Ordinance, 1963, now section 18(2) of “বাড়ি ভাড়া নিয়ন্ত্রণ অধ্যাদেশ, ১৯৯১”  although the appellant specifically pleaded it.
 
21. Therefore, in my view, the crux issue in this appeal is whether a tenant is liable to be ejected solely on the ground of expiry of the term of lease with efflux of time, with notice or without notice under section 106 of the Transfer of Property Act. The argument during the hearing turned on this basic question.
 
22. The plain answer is no, because section 18(2) of the Premises Rent Control Ordinance, 1963 (now bari Bhara niyontron odhadesh, 1991? has given a protection to the tenant from eviction when the period of lease has expired, provided that the tenant is ready and willing to pay rent to the full extent allowable. He by the aforesaid legislations. If he is to be evicted, then the landlord will have to make out a case of default in the payment of rent and/or under any of the clauses (a)-(e) of the proviso to sub‑section (1) of section 18. The tenant cannot be evicted solely and only on the ground of expiry of the period of lease, even if a notice under section 106 of the Transfer of Property Act is validly served before filing of the suit. A notice will only be an idle formality in that case, leading to no remedy.
 
23. The reason is simple. All leases are created under the Transfer of Property Act and the Contract Act. If the Premises Rent Control Ordinance was not there, a tenancy terminates with the expiry of the period of lease because section 111 of the Transfer of Property Act expressly provides that "a lease of immovable property determines (a) by efflux of time limited thereby". But to give a protection to the tenants, section 18 of the Premises Rent Control Ordinance makes a significant departure from the Transfer of Property Act. Sub­section (1) of section 18 protects a tenant from eviction "as long as the tenant pays rent to the full extent allowable by this Ordinance and performs the conditions of the tenancy". This protection is given 11 notwithstanding anything contained in the Transfer of Property Act, 1882, or the Contract Act, 1872". The protection is not available if he is a defaulter and/or in the contingencies mentioned in clauses(a)­(c) of the proviso to sub‑section (1) of Section 18, namely-  
 
"(a) where the tenant has done any act contrary to die provisions of clause (m), clause(o) or clause (p) of section 108 of the Transfer of Property Act, 1882, or
(b) where, in the absence of any contract to the contrary, the tenant has, without the consent in writing of landlord, sublet the premises in whole or in part, or
(c) where the tenant has been guilty Of conduct which is a nuisance or any annoyance to occupiers of adjoining or neighbouring premises, or
(d) where the tenant has been using the premises or part thereof or allowing the premises or part thereof to be used for immoral or illegal purposes, or
(e) where the premises are bonafide required by the landlord either for purposes of building or rebuilding or for his own occupation or for the occupation of any person for whose benefit the premises are held, or where the landlord can show any cause which may be deemed satisfactory by the Court."

There may be a host of other circumstances provided for in the Transfer of Property Act and in the contract of tenancy itself which render a tenant liable for eviction, but the causes of eviction under the premises Rent Control Ordinance are limited to the causes of default in the payment of rent and/or any of the circumstances mentioned in clauses (a) to (c) of the proviso to sub‑section (1) of section 18. To that extent the Transfer of Property Act and the Contract Act are excluded.
 
24. The last clause (e) of the proviso allows the Court to order eviction of a tenant "where the landlord can show any cause which may be deemed satisfactory by the Court".
Anything and everything is not a satisfactory cause and sub-section (2) of section 18 spells out at least two circumstances which will not be deemed to be a satisfactory cause in the following words:
 
"18. (2) The fact that the period of the lease has expired, or that the interest of the landlord in the premises has been transferred shall not of itself be deemed to be a satisfactory cause within the meaning of clause (e) of the proviso to sub‑section (1), provided that the tenant is ready and willing to pay rent to the full extent allowable by this Ordinance."
 
25. Compare sub‑section (2) of section 18 of the Ordinance with clauses (a) and (c) of section 111 of the Transfer of Property Act. These two clauses provide as follows:
 
"111. Determination of Lease.- A lease of immovable property determines‑
(a)by efflux of the time limited thereby;
……………………………
(c)where the interest of the lessor in the property terminates on, or his power to dispose of the same extends only to, the happening of any event by the happening of such event.
…………………………………."

It is thus clear that if the period of lease expires with efflux of Lime or if the interest of the lessor is transferred, that will be a good ground for eviction of a tenant under the Transfer of Property Act, but "shall not of itself be deemed to be satisfactory cause within the meaning of clause (e) of sub‑section (1) of section 18 of the Ordinance (emphasis is mine). A protection from eviction will be available to the tenant if he is ready and willing to pay rent to the full extent allowable by the Ordinance, notwithstanding the expiry of the term of lease and notwithstanding the transfer of interest of the lessor.
 
26. There is another important difference between the Transfer of Property Act and the Ordinance in respect of a tenancy which has expired with efflux of time. Under the Transfer of Property Act, the tenant can "hold over" after expiry of lease and the effect of "holding over" is provided for in section 116 of the Transfer of Property Act as follows:
 
116. Effect of holding over.-If a lessee or under‑lessee of property remains in possession thereof after the determination of the lease granted to the lessee, and the lessor or his legal representative accepts rent from the lessee or under‑lessee, or otherwise assents to his continuing in possession, the lease is, in the absence of an agreement to the contrary, renewed from year to year, or from month to month, according to the purpose for which the property is leased, as specified in section 106."
 
27. The point to note here is that under section 116 of the Transfer of Property Act, the option is with the landlord to accept or not to accept rent from the lessee or under‑lessee after the determination of the lease with efflux of Lime. If the landlord refuses to accept rent, that will be the end of the tenancy, there is no "holding over" and the tenant renders himself liable to eviction. But under the Ordinance it is the tenant who exercises the option. If he wishes to continue as a tenant it is he who has to be ready and willing to pay rent to the full extent allowable by the Ordinance. If he sent the rent after expiry of lease by money order and the landlord refuses to accept, and if he makes a timely deposit of the same to the House Rent Controller and continues to do so, he will be protected from eviction. His continuance of the tenancy does not depend upon the landlord's acceptance of the rent , as in the Transfer of Property Act. This position is also in full accord with the definition of the word 'tenant' in section 2(8), at present section 2(Uma), Ordinance.
 
28. It is, therefore, not correct to say that a tenant who continues in possession after expiry of tenancy with efflux of time by regularly paying rent either to the landlord or on his refusal to accept rent to the House Rent Controller is a tenant "holding over". The words "holding over" are not mentioned in the Ordinance. A tenant "holding over" is a creature of the Transfer of Property Act and the acceptance of his position as a tenant "holding over" depends upon the sweet will of die landlord. Under the Ordinance, such tenants have not been described by any name and in the absence of a statutory name, they are designated by the Courts to be "Statutory tenants". This concept was made clear by us, when we mentioned another circumstance under which a "statutory tenant" may be created, when we said (in the case reported in 44 DLR (AD) 1 at para 11), "A tenancy may be created under a statute also: such as, on legal termination of a tenancy, a person continuing in possession and paying rent to the landlord, who accepts it, becomes a statutory tenant." (page 6).
 
29. The fallacy of the High Cou4 Division was that it has made confusion between a statutory tenant and a contractual tenant and treated the present tenant‑appellant as a contractual tenant. It ignored sub‑section (2) of section 18 and did not consider the appellant's unrefuted case that after expiry of the tenancy he has been regularly depositing rent with the House Rent Controller. The appellant is a statutory tenant and he can only be evicted by a statutory notice under section 106 of the Transfer of Property Act on the ground of default in the payment of rent and/or any of the circumstances mentioned in clauses (a) to (e) of the proviso to sub‑section (1) of section 18, and not on any other ground whatsoever. The sole ground of expiry of tenancy with efflux of time is simply not available to the respondent, notice or no notice. It is immaterial in this appeal whether any notice under section 106 of the Transfer of Property Act was served or not. If the respondent has no available ground for eviction, a valid notice will not save his suit.
 
A notice under section 106 of the Transfer of Property Act is mandatory in all cases of eviction under the Ordinance as well, because a tenancy is created under the Transfer of Property Act and Contract Act and those two Acts are not entirely excluded by the provisions of the Ordinance. The Ordinance has not excluded the operation of section 106 of the Transfer of Property Act either expressly or by implication. That is the basic reason why a notice under section 106 of the Transfer of Property Act is mandatory in a case of eviction under the Ordinance.
 
Ed.