Bombay High Court
Madhavji Virji vs Lakshmidas Mulji And Co. on 9 August, 1923
Equivalent citations: (1923)25BOMLR1178, AIR 1924 BOMBAY 99
JUDGMENT Pratt, J.
1. The first defendant is a tenant of the plaintiff from month to month of two go-downs on the ground floor of a house in Kazi Sayed Street.
2. The plaintiff by notice on May 3, 1923, terminated the tenancy as from June 14, 1923.
3. The first defendant pleads the Kent Act,
4. The plaintiff says that there is satisfactory cause because defendant No. 1, on February 16, 1923, sub-let the go-downs to the second and third defendants. In support of this contention Mr. Munshi relies on Section 9(3) added to the Act by the Amending Act (Bom. Act III of 1923) and contends that as the lease has been determined by notice, the cane falls under both clauses of that sub-section; under the first, because the sub-letting is after August 21, 1922, and the term of the lease has expired by virtue of notice to quit; under the second, because the sub-letting is from month to month, and therefore extends beyond the period of the lease which has been determined by notice.
5. I feel clear, however, that the sub-section does not support the construction that Mr. Munshi puts upon it. In the first part of the sub-section the words "the term of whose lease has expired" are an adjectival clause qualifying the noun tenant. The first part of the section, therefore, refers to the act of a tenant whose lease has terminated, and therefore the sub-letting must have occurred after the expiry of the lease. So also in the second part of the sub-section the term of the lease must be fixed before the sub-letting. Otherwise it cannot be said that a tenant has sublet for a period extending beyond the term of his lease. In the present case the term has not expired, nor had it been determined by notice to quit before the sub-letting, and therefore the sub-section has no application.
6. The object of the sub-section is, I think, to prevent a statutory tenancy being used as a source of profit by a tenant who does not require the premises for his own occupation. The first part refers to a tenant who holds over under Section 9(1), and the second part to a tenant who sub-lets beyond his term in expectation of a statutory tenancy. Neither part, therefore, applies to the present case.
7. The second issue as to waiver does not arise, but if it did, I should hold that the plaintiff waived notice by receiving an increment of rent for a period of six months in advance after termination of the tenancy by notice to quit, A landlord may recover rent of the statutory tenant without waiving the notice to quit. But to collect six months rent in advance is conduct inconsistent with an intention to enforce the notice.
8. I dismiss this suit with costs.