Mohapatra, J.
1. This appeal has been filed by the defendant against the reversing judgment of Sri. B. C. Das, Addl. District Judge of Berhampur. The suit was for ejectment of defendant-tenant who was inducted on the land in dispute as a tenant by virtue of rent deed (Ex. 1) dated 8-10-34. The deed was for a period of six months and the rental fixed was Rs. 5/- per month. After the expiry of the period given in the lease-deed (Ex. 1), the defendant continued to remain as a tenant from month to month. The defendant being in arrears of rent, the plaintiff served a notice on the defendant to quit and has brought the present suit for eviction.
2. The suit was resisted on two grounds:--
(i) That the notice is invalid and (ii) that the suit is not maintainable under the provisions of House Rent Control Act, 1947, thera being no permission obtained under Section 13 of the Act. The trial Court decreed the suit for arrears of rent but dismissed the suit for ejectment holding that in fact, the notice is invalid and that no exemption order is necessary. Against that there was an appeal by the plaintiff but no cross-appeal by the defendant against the decree for arrears of rent. In appeal, the lower appellate Court having allowed the plaintiff a decree for eviction, the present Second Appeal has been filed by the defendant.
3. Mr. P. V. B. Rao, appearing on behalf of the defendant-appellant, takes two points:
(i) that the notice is invalid. The notice given to the defendant (Ex. A) mentions that the defendant is to vacate the house 'by 7th July 1949 or other date when the month ends.' Mr. Rao contends that the rent deed was dated 8-10-34 and under Section 106, T. P. Act, the date of the commencement of the tenancy is to be excluded, and, as such, the month of tenancy is to expire on the mid-night of 8th July, 1949, and not 7th July, as mentioned in the notice, and therefore, the notice is defective and invalid. There is some force in this contention, but the notice is regularised and validated by insertion of the subsequent clause 'or other date when the month ends'.
The case is fully covered by a decision ofthe Allahabad High Court reported in --'Ganga Prasad v. Prem Kumar', AIR 1949 All173. It was observed there that the object ofa notice under Section 106, T. P. Act was only toallow a tenant sufficient time to vacate thepremises. It has been laid down by theirLordships of the Privy Council in the caseof -- 'Harihar Banerji v. Ramashashi Roy', 46Cal 458 (P C) that notice should be liberallyconstrued and the only point to be consideredin respect of notices is whether the person ohwhom the notice is served could understandwhat was really meant by the notice. Therethe notice ran to the effect:
'that the defendant was to vacate on 18-5-44 or on such date 'as your then current month of tenancy will end'. To me, as it appears, the terms of the notice in the Allahabad case and in our case are exactly the same and the principle being really whether the defendant could understand what was the month of tenancy and when it was to expire, it was a valid notice on the defendant to vacate on the expiry of the month of tenancy. The first point taken by Mr. Rao, therefore, fails.
(ii) the second point is that the case is hit by the mischief of the provisions of House Rent Control Act, 1947. Both the Courts below have come to the conclusion that no order of exemption as provided for in the House Rent Control Act, 1947, was necessary on account of the arrears of rent. It has to be observed that, in fact, there were arrears of rent for 8 months and the trial Court had passed a decree. There was no appeal by the defendant against that decree of the trial Court. This clearly exempts the case from the provisions of House Rent Control Act, 1947. Section 5 runs thus:
'5. Subject to the provisions of this Act and notwithstanding anything to the contrary contained in an agreement or law where a tenant on a tenancy from month to month is, on the date of the commencement of this Act or any other date subsequent thereto, in possession of any house, (a) he shall not be liable to be ejected whether in execution of a decree, or otherwise, except for non-payment of rent or breach of conditions of the tenancy'.
The last clause takes it out of the operation of the Act. Mr. Rao relies upon a Special Bench decision of our Court reported in -- 'Krishna Chandra v. Sushila Mitra', 16 Cut LT 249 (FB). He has drawn my attention to some passages appearing at page 258. The point for determination in that case was entirely different from the points arising in the present case.
The point in that case was whether the Ordinance extending the period of operation of the Act was 'intra vires' or 'ultra vires'. Their Lordships held that the duration of a statute other than that provided under the Act was a matter for determination of the Legislature itself. The power to extend operation of the Act beyond the period mentioned in the Act prima facie was a legislative, power and did not amount to conditional legislation. So the notification was illegal and ultra vires. I find at page 258 from the observation that one of the minor points urged was that mere non-payment of rent was a ground for eviction. The point of course, in that case was never raised before either of the Courts below and it was taken up in a very late stage before the Special Bench.
The observation runs:
'A perusal of the plaint no doubt shows that non-payment of rent has been alleged and it would appear from the subsequent proceedings that it was a fact. But a perusal of the written statement gives an indication that there was a dispute between the parties prior to the date of the suit arising out of the demand of the landlord for increased rent, and it appears not unlikely that the rent remained unpaid on account of this dispute. It is not in every case of non-pay-ment of rent under the general law that there is a liability for eviction of the tenant. In order that it may be available as a ground for eviction, it must be a condition of the tenancy'.
This observation clearly shows that the point before them was not whether arrears of rent will entitle the landlord from an exemption from obtaining the permission of the House Rent Controller under Section 13 of the Act. Moreover, in the present case, arrears of rent remain as an undisputed fact and the decree remaining unchallenged. As I get it from the clear language of Section 5, arrears of rent take the case out of the operation of ther Act and no permission under Section 13, is necessary.
4. Both the points taken up by Mr Rao having failed, the appeal is dismissed with costs.