V.R. Newasker, J.
1. This second appeal arises out of plaintiff's suit for ejectment and arrears of rent.
2. The facts giving rise to this appeal are as follows:
3. Plaintiff Vishnu Ganesh Namjoshi sued defendant Laxminarain on the allegations that the latter had taken shop premises consisting of two rooms in his house abutting on Jail Road, Indore at Rs. 75/- p. m. from 20-4-1949 but that he fell is arrears and failed to pay the same in spite of notice as required by law and that on that account his tenancy was terminated by means of a lawful notice to quit.
4. The defendant by his written statement contended that he had deposited with the plaintiff Rs. 225/- being the rent for three months in advance; that although the contractual rent was Rs. 75/-per month, the fair rent was determined at his instance by the Rent Controller at Rs. 22/8/- pet month; that on receipt of plaintiff's notice dated 15-10-1953 he sent to the plaintiff the amount to cover up entire arrears after taking into account the aforesaid deposit amount of Rs. 225/- minus Rs. 67/8; as the advance rent for three months at Rs. 22/8/; that later on receipt of a second notice dated 5-12-1953 he sent Rs. 45/- by money order as two months rent upto 18-1-1954 which the plaintiff refused and that the notice to quit was not lawful.
5. The trial Court held that the defendant had failed to pay the arrears in spite of notice of demand and that there was lawful termination of his tenancy by means of a valid notice to quit. He held that according to the terms of contract as contained in the rent note Ex. P/1, Rs. 225/- were to remain in deposit and could not be adjusted as against the rent as and when it fell due and that the defendant was not justified in paying the arrears on assumption that the sum in excess of Rs. 67/8/- out of the same was liable to be adjusted. He accordingly granted a decree for Rs. 228/9/- as arrears of rent and ejectment. He further awarded mesne profits at Rs. 22/8/-p. m. as also costs of the suit.
6. The defendant preferred no appeal as re-gards the decree for arrears of rent but preferred appeal as against the decree for ejectment only. The decree for ejectment was assailed on three grounds. Firstly that the view of the trial Court that the sum in excess of Rs. 67/8/- out of the amount of deposit of Rs. 225/- could not have been adjusted towards the arrears, was erroneous, as it was understood in the contract that there would be a deposit of three months rent only; secondly that it was wrong on the part of the trial Court not to hold that plaintiff's acceptance of the money order referable to the money order coupon Ex. D/3 bound him and he is deemed to have consented to adjust the deposit amount of Rs. 157/8/- towards the arrears. Thirdly the vali-dity of the notice to quit was assailed.
7. The first ground did not find favour with the appeallate Court but the other two did. He held that inasmuch as the defendant had clearly stated in the money order coupon Ex. D/3 that Rs. 135/-which he was then sending together with Rs. 157/8/-out of Rs. 225/- in deposit, cleared the arrears from 19-10-1952 to 19-10-1953, the plaintiff's acceptance of Rs. 135/- bound him down to accept the suggested adjustment. He further held that the notice to quit was invalid as the month of rent commenced on 20th of every month whereas the plaintiff had required the defendant to vacate on 21st. This was contrary to the requirements of Section 106, Transfer of Property Act for a valid notice to quit. He accordingly allow-ed the appeal and dismissed plaintiffs claim for ejectment and mesne profits. This is a second appeal by the plaintiff.
8. It is contended by Mr. Sanghi for the plain-tiff appellant that the trial Court had awarded a decree for arrears of rent. The plaintiff did not appeal against the decree. That decree, therefore, became filial. The question, therefore, as regards the rate of rent was no more open. It could no longer have been contended by the defendant in appeal that the arrears were not Rs. 228/9/-and that the alleged adjustment of rent was proper. For, if the alleged adjustment of rent was proper by reason of conduct of the plaintiff, in accepting Rs. 135/- sent on condition that the said amount together with Rs. 157/87- out of the total deposit of Rs. 225/- cleared die arrears upto date, then there could not occur arrears to the extent of Rs. 228/9/-.
It ought, therefore, be assumed that the defen-dant failed to pay the arrears and the defence under Section 4(a) of the Sthan Niyantran Vidhan was no longer open to him. As regards due termination of tenancy by a valid notice to quit, the learned counsel referred to the notice Ex. P/3 dated 5-12-1953 which called upon the tenant to deliver possession on 21-1-1054 and contended that the since under the terms of the original rent-note, the period of tenancy was for a fixed period of eleven months with a power to continue the same if their relations remained cordial and the tenancy was to commence from 20-4-1949 in computing the time upto which the tenancy would continue that day ought to be excluded. The period of eleven months, therefore, would end on 20-3-1950.
If thereafter, the tenancy was continued, the date of commencement from month to month would be 21st and the month of tenancy would end on 20th. It was, therefore, urged that calling upon the tenant to vacate on 21st could not be said to be bad. The learned counsel relied upon the provisions of Section 110, Transfer of Property Act and the decision of their Lordships in Privy Council in Benoy Krishna Das v. Salsiccioni AIR 1932 PC 279, and upon the decisions of Nagpur High Court reported in Ilahi-bux v. Munirkhan AIR 1953 Nag 219, and Hirji-bhai v. Balarambhai AIR 1956 Nag 125.
I think these contentions of the learned counsel for the appellant ought to prevail. Ejectment was sought on the ground that the defendant failed to pay the arrears of rent within one month in spite of notice of demand as required by law and that there had been lawful termination of tenancy. As regards the existence of arrears the case set up was that the terms of rent note properly construed provided for deposit not of Rs. 225/- irrespective of the rent payable but only of three months' rent in advance and that when the Rent Controller reduced the contractual rent to Rs. 22/8/- on the ground of that being the fair rent of the premises in question the only deposit amount which was necessary and justified was Rs. 67/8/-.
The amount in excess of that sum lying in deposit with the plaintiff was, therefore, lying with him in surplus to be disposed of at the direction of the defendant to whom it belonged. The defendant gave the direction and required the plaintiff to adjust that amount along with the sum of Rs. 135/-towards the arrears upto date, on receipt of notice of demand from the landlord. The plaintiff accepted the amount of Rs. 135/- rent on the basis of that proposal and thereby accepted the proposal. It was, therefore, no longer open to him to contend that Rs. 157/8A- which he is deemed to have adjusted towards the arrears was not in fact so adjusted and that the whole of the amount of Rs. 225/- remained in deposit with him.
This contention of the defendant is capable of two fold answers. Firstly, on perusal of the rent note, it appears that Rs. 225/- were meant to be deposited in a lump sum and there is nothing in that document to suggest that the amount of deposit represented the three months rent in advance and that the amount of deposit could vary with any variation in the rent. This amount of Rs. 225/- was not Intended for safeguarding the rent payable under the rent note. The rent was payable in advance. This amount was in fact intended for safeguarding the premises from any act the tenant resulting in damage to the same. It was open for the landlord to repair the damage and to deduct the amount spent for it on effecting those repairs out of this deposit amount.
It is, therefore, clear that there is nothing in the rent note to justify the interpretation which the tenant seeks to put regarding the deposit amount. The plaintiff was, therefore, within his rights in allowing the amount to deposit to remain intact and to claim the arrears to be paid, apart from that sum as the arrears were payable, each month's rent in advance, under the terms of the rent note irrespective of the deposit amount. There is nothing in his conduct to suggest that he credited Rs. 157/8/- out of the deposit amount towards the arrears. Mere acceptance of Rs. 135/- by him towards his dues did not necessarily mean that he accepted any such adjustment as was proposed by the tenant. It was open for him to think that the proposed adjustment was on its face contrary to the terms of the rent note and he was entitled to Rs. 135/- and even more.
9. The second difficulty in the way of the defendant moreover is that after the trial court held against him on the question of his plea regarding adjustment of the deposit amount and granted a decree for arrears for the full amount of Rs. 228/9/-he preferred no appeal as regards that part of the decree and the same became final and conclusive between the parties. The result of this was that it was no longer open for the defendant to contend that there had been no arrears and- that therefore the ground under Section 4(a) of the Madhya Bharat Sthan Niyantran Vidhan was not open to the plaintiff. For the purposes of the appeal it has to be assumed that the defendant was in arrears and failed to pay the same. The result of this assumption is that the plaintiff can properly call in aid the ground under Section 4(a) of the Act and the defendant could not set up any defence against that ground on the ground that in fact there Bad been no arrears of rent at all.
10. As regards validity of notice to quit, the observations of their Lordships of the Privy Council in 45 Ind App 222: (AIR 1918 PC 102) Harihai Banerji v. Ramshashi Roy to the effect that a notice to quit ought not to be construed with a desire to find fault with it but that it should be construed 'ut res magis valeat quam pereat' ought to properly apply in the circumstances of the present case. The defendant's tenancy was for a fixed term of eleven months and capable for being extended thereafter by mutual agreement. The tenancy commenced on 20th of April 1949 and therefore in computing date of termination of tenancy that day i.e. 20th will have to be excluded as is provided under Section 110 of the Transfer of Property Act.
The tenant continued even thereafter and the landlord accepted rent. The effect is as held by their Lordships of the Privy Council in AIR 1932 PC 279 that a new tenancy came into being from month to month and the date of commencement of this was 21st. The date of termination of this tenancy was 20th. The tenant was called upon to vacate OB 21-1-1954, This notice was said to be bad because according to the defendant the notice should haverequired him to vacate on 20th. Now with respect to this it has to be seen that once his monthly ten-ancy commenced on 21st as discussed above, he was entitled to continue upto the end of 20-1-1954, Hecould not be called upon to vacate in the midst of a term of tenancy but onlv at the expiration of that term. He had therefore, a right to continue the premises upto the midnight of 20-1-1954, and until the last moment of that date. He would, therefore, vacate on the 1st moment of 21st. The notice, therefore, calling upon the tenant to vacate on the expiration of last moment of 20th is as good or valid as one requiring him to vacate at the first moment of 21st.
10. It is held in AIR 1953 Nag 219 by Sinha C. J., that where a tenancy commenced on the 13th day of a Calendar month, the tenant could be legally called upon to vacate the premises only at the end of 12th, I respectfully agree with this.
11. There are other cases which take the view that he could be called upon to vacate at the expiration of the term of tenancy. There is hardly a real distinction between the view in these cases and the present view. There is only a line of demarcation between the expiration of a day and the commencement of the next.
12. I would, therefore, construe this notice not in a pedantic way but in a manner in which the plaintiff intended to give such notice and in a manner in which the defendant can properly be assumed to have understood it. The notice in my opinion is valid.
13. The result is that the appeal should succeed and the plaintiff's claim for ejectment of the defendant ought to be allowed with pro tanto costs.