Marwaha v Kassam (Civil Appeal No. 1204 of 1950) [1951] EACA 112 (1 January 1951)

## APPELLATE CIVIL

### Before CONNELL, J.

### S. P. MARWAHA, Appellant

#### $\mathbf{v}$

# SULTANALI SULEMAN KASSAM, Respondent

# Civil Appeal No. 1204 of 1950

(Appeal from decision of the Central Rent Control Board at Nairobi)

Notice to quit—Monthly tenancy—Notice determining tenancy on 12th of month-Validity.

On an appeal from the Central Rent Board: it was argued on behalf of the appellant the tenant that a notice to quit determining the monthly tenancy on the 1st July, 1950, was bad.

Held (13-12-51).-A new tenancy commenced at the 1st day of each month and the notice to quit purporting to determine the tenancy on the 12th of a month is bad.

Appeal allowed.

$\hat{\mathcal{A}}$

Cases referred to: Sidebotham v. Holland (1895) 1 Q. B. 378; Chanda Mohamed v. Muriazakhan (1950) A. I. R. (Nagpur) p. 233; Utility Articles Manufacturing Co. v.<br>Bombay Mills, Ltd. (1943 B. 553).

## D. N. Khanna for the Appellant.

Nazareth for the Respondent.

JUDGMENT.—This is an appeal against a determination of the Central Rent Board on 4th December, 1950, and before I deal with the appeal I have a general observation to make. Both in this appeal and in a recent hearing on the original side recent Indian cases of considerable importance have been quoted in Court, two of them from the All India Law Reporter which are not taken in by our Library and another a Bombay case which, however, is fortunately reported in the last volume (1943) taken in by the library. I think I shall have the full support of my brother Judges if I recommend that at any rate one set of Indian Law Reports be taken in by the Library as from the time they ceased to be taken in. As far as I am aware important applied acts such as the Transfer of Property Acts and the Contract Act and Evidence Act are the subject of daily judicial interpretation in India and I think that for the comparatively small cost involved the Courts here would benefit by continuing one set. As Senior Counsel, Mr. Khanna and Mr. Nazareth appear in this appeal, I will leave it to them as to whether they move the Law Society to take this suggestion up.

I propose to deal first with point 2 in the appeal raised by Mr. Khanna, as if the notice to quit is bad, then it seems to me the appellant must succeed.

Now it seems to me that to succeed in the present application for ejectment which is taken under S. 16 (1) (j) of the Increase of Rent Ordinance it is a prerequisite that the contractual tenancy has been properly determined so that the tenant is in fact and in law holding over as a statutory tenant. The latter part of S. 16 (1) (j) "has given the tenant one month's notice to quit" seems to me interpretable only in that light. A notice to quit was in fact given. It was given on 12th May, 1950, determining the tenancy on 1st July, 1950, the respondent having entered the premises on 1st August, 1947, this tenancy being "from month to month".

As to what law is applicable to monthly tenancies, particularly with regard to the requisite period of notice, in my view these Courts are bound by the provisions of the Transfer of Property Act and no other provisions. The Notice must stand or fall under the provisions of that Act. If that were not so I should probably feel inclined to follow the English decision *Sidebotham v. Holland* (1895) 1 Q. B. p. 378. That the present lease is however a lease from month to month unlimited in time and is therefore governed by S. 106 Transfer of Property Act seems to be placed beyond doubt by the recent decisions of Chanda Mohamed v. Murtazakhan (1950) A. I. R. (Nagpur) p. 233 and Utility Articles Manufacturing Co. v. Bombay Mills Ltd. (1943 B. 553). In the latter case there was a lease from 1st August at a monthly rent; it was provided that either side will give one clear month's notice to determine the tenancy and on 29th January a notice was given determining the tenancy with the expiry of the month of February. It was held that this was a sufficient notice to determine the tenancy. The final words of the first paragraph of S.106 are "notice expiring with the end of the month of the tenancy".

On the authority of these two cases quoted, in my view a new tenancy commenced on 1st of each month and the notice purporting to determine the tenancy on the 1st of a month is a bad notice.

In case I am wrong in this view I will deal briefly with the other grounds of appeal which were argued at length. I will take first of all ground 1. It is a somewhat difficult point. If the Board had point-blank refused an adjournment, in my view it would be difficult to attack their refusal. What the Board said however was "we'll go on with the case as far as possible and adjourn it if it appears that respondent himself is a material witness". At that stage Mr. Handa withdrew from the case. The Board then heard the plaintiff respondent's evidence and decided against an adjournment. The facts therefore are entirely different from those in the case of H. K. Shah v. Osman Allu (1947) E. A. C. A. p. 45 which went to the Privy Council. There the Magistrate, acting under $O. XV r. 1$ recorded "grounds for adjournment are not strong enough", as he was quite entitled to, and this order was upheld by the Privy Council. As I have indicated, had the Board pursued some such line of action and expressed dissatisfaction with a last minute application for adjournment on the ground of the respondent's alleged sickness and so refused the adjournment, this Court would have been extremely loath to interfere. It seems to me however that in this case the Board (though I have no doubt that they thought they were administering justice in good faith) had not really considered at all the matter of "sickness or not" on the part of the respondent as a ground for possible adjournment; what they really said was "we don't know if the respondent himself is a material witness"—he clearly was—"we will hear one side and see whether we think it is necessary to hear the other". In adopting that course I think the Board clearly erred in fundamental procedure; and it matters not that Mr. Handa retired from the case at that stage; for that reason (particularly as both in the claim and answer before the Rent Board a number of issues were raised) I would say that the Board had never approached the question of adjournment from a correct angle and the case would have to be remitted or retired on that ground as well.

In the circumstances it is hardly necessary for me to express an opinion as to grounds 2 and 3; I would add this, however, that if the Court had refused and $\frac{1}{2}$ adjournment on proper grounds I would say on the authorities, particularly Habib Khan's case XII E. A. C. A. p. 19 where the learned President stated "the Court must have some material on which to base a decision". that they had adverted to the question of reasonableness. This view, however, is in the nature of obiter as in my view the decision cannot stand on grounds already mentioned. $\sim 1$

The appeal, in my view, must succeed and a retrial is ordered; the appellant must have the costs of this appeal. Regarding the costs before the Rent Board the order of Sh. 150 costs to the landlord is reversed, but Mr. Handa having withdrawn there will be no further order regarding lower Court costs.