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1968 DIGILAW 27 (ALL)

Hari Shankar v. Chaitanya Kumar

1968-01-12

R.B.MISRA, S.N.DWIVEDI

body1968
JUDGMENT S.N. Dwivedi, J. - This case comes to us on reference by a learned Single Judge. For deciding the case only a few material facts need be stated. 2. We are concerned with the shop No. 185, Bazar Lal Khare, Bulandshahr. Ghaitanya Kumar and Prem Kumar are the owners of the shop. Tej Singh is the tenant of the shop. Hari Shankar is a partner of Tej Singh in the business carried on in the shop. Chaitanya Kumar and Prem Kumar obtained permission from the District Magistrate Bui-andshahr, for instituting a suit for eviction of Tej Singh. They gave notice to him to quit the premises. The notice was served on him on 16-10-1964. Thirty days' period mentioned in the notice expired on 16-11-1964. Thereafter they instituted a suit for his ejectment on 23-11-1964. Hari Shankar was also impleaded as a Defendant in the suit. After the institution of the suit the Plaintiffs accepted rent from Tej Singh for the months of October, November and December, 1964. This acceptance tempted the Defendants to deploy the doctrine of waiver in their favour. They pleaded that it amounted to the waiver of the notice to quit. An issue was framed on this point. The decision went against them. The point was re-canvassed before the Single Judge. He felt that as there is a conflict between two judgments of this Court, the matter should be decided by a larger Bench. In Permanand v. L. Murari Lal 1966 AWR 432 the Plaintiff accepted rent of the premises on the expiry of the period given in the notice to quit as well as after the institution of his suit. It was, however, expressly said that acceptance was without prejudice to the suit already instituted. Sri Justice Singh held that in the circumstances of the case it could not be said that the Plaintiff had waived the notice to quit u/s 113 of the Transfer of Property Act. In Ram Dayal v. Jwala Prasad AIR 1966 All 623 the Plaintiff accepted rent from the Defendant after the institution of the suit. Sri Justice Asthana held that by accepting the rent after the institution of the suit the Plaintiff had waived the notice to quit. 3. The facts of the two cases are materially different. So there is no apparent conflict between the decisions in these cases. 4. Sri Justice Asthana held that by accepting the rent after the institution of the suit the Plaintiff had waived the notice to quit. 3. The facts of the two cases are materially different. So there is no apparent conflict between the decisions in these cases. 4. The question arising in the case before us is whether the acceptance, after the institution of the suit, of rent for a period after the time mentioned in the notice has expired amounts to the waiver of notice to quit u/s 113 of the Transfer of Property Act. For the purpose of deciding the question in the circumstances of his case it is not necessary for us to enter into the intricate labyrinth of the case law upon Section 113. Admittedly, the premises in dispute are governed by the UP (Temp.) Control of Rent and Eviction Act, 1947. It has not been brought to our notice as to whether Tej Singh came into the premises as a contractual tenant or by virtue of an order of allotment in his favour u/s 7 of the said Act. If he came into the premises as a contractual tenant, his tenancy was determined on the expiry of the period mentioned in the notice to quit. Thereafter he will obtain protection of the provisions of the Act. He would be immune from ejectment and would be popularity called as a "statutory tenant". While continuing in possession of the premises as a statutory tenant he would be liable to pay rent in accordance with the provisions of the Act. The same result would follow if he came to the premises by virtue of an order of allotment u/s 7. In the result, after the expiry of the period mentioned in the notice to quit and the institution of the suit he became a statutory tenant under the Act and was liable to pay rent to the Plaintiffs. The mere acceptance by the Plaintiffs of the rent for November and December 1964, which was payable to them under the provisions of the Act, cannot accordingly amount to the waiver of notice to quit by them. In view of the provisions of the Act such acceptance remains equivocal. The mere acceptance by the Plaintiffs of the rent for November and December 1964, which was payable to them under the provisions of the Act, cannot accordingly amount to the waiver of notice to quit by them. In view of the provisions of the Act such acceptance remains equivocal. The Plaintiffs may maintain that they had accepted the rent for November and December 1964 as it had fallen due under the Act and not because they were minded to continue the relation of landlord and tenant. The burden is on the Defendant to show that the Plaintiffs accepted the rent as 'rent' and not as rent "due under the Act". We have not been referred to any such evidence on record. 5. To sum up, in view of the provisions of the Act we are unable to hold that mere acceptance of rent for November and December 1954 by the Plaintiffs would amount to the waiver of notice to quit u/s 113. 6. The rent for October had already fallen due to them because the tenancy determined on 16-11-1964. The acceptance of rent for October 1964 cannot amount to the waiver of notice to quit at all. 7. The view which we are taking is supported by two decisions of the Calcutta High Court. In Panchanan Ghose Vs. Haridas Banerjee, AIR 1954 Cal 460 the premises were governed by the Calcutta Rent Ordinance, 1946. The Plaintiff accepted rent after the institution of his suit. The Court, while rejecting the plea of waiver, said: Where, however, such payment of rent is made to ensure protection against ejectment, as under any rent control law, and is accepted by the landlord, mere acceptance of rent does not lead to an inference that the parties intend to reestablish the relationship of landlord and tenant. In such a case, mere acceptance of rent, in the absence of any other evidence, does not operate as a waiver of the notice to quit u/s 113 of the Transfer of Property Act. The same view was taken in the subsequent case in Pulin Behary Shaw Vs. Miss Lila Dey, AIR 1957 Cal 627 . In Ganga Dutt Murarka v. Kartik Chandra Das and Ors. (1951) 3 SCR 813 the term of a contractual tenancy expired. The landlord continued to accept rent after the expiry of notice. The same view was taken in the subsequent case in Pulin Behary Shaw Vs. Miss Lila Dey, AIR 1957 Cal 627 . In Ganga Dutt Murarka v. Kartik Chandra Das and Ors. (1951) 3 SCR 813 the term of a contractual tenancy expired. The landlord continued to accept rent after the expiry of notice. In a suit instituted by the landlord for ejectment of the tenant the plea of holding over u/s 116 of the Transfer of Property Act was taken. It was said that as the landlord has accepted rent after the expiry of the term of the lease, it should be held that the tenant was holding over u/s 116, Rejecting the argument Mr. Justice Shah observed: It is, however, Well settled that where a contractual tenancy to which the rent control legislation applies has expired by efflux of time or by determination by notice to quit and the tenant continues in possession of the premises, acceptance of rent from the tenant by the landlord after the expiration or determination of the contractual tenancy will not afford ground for holding that the landlord has assented to a new contractual tenancy. We think that these observations should equally apply to a case u/s 113. In a case governed by the Act there should be something more than the mere acceptance of rent in order to enable the Court to hold that the acceptance of rent amounts to the waiver of notice to quit. That something more is lacking on the record of this case. Accordingly we would hold that Tej Singh has failed to prove that there was waiver of the notice to quit by the Plaintiffs. No other arguments have been advanced in support of this appeal. 8. Sri Seth took a preliminary objection that as the real tenant has not filed an appeal, the Appellant, who is only a partner of the tenant in the business, has got no locus standi to file and pursue the appeal. It seems that this objection was anticipated by Sri Banerji, counsel for the Appellant. Accordingly he had already moved an application for transposition of Tej Singh from the array of the Respondents to the array of the Appellants. We allow this application and order that Tej Singh should be transposed from the array of the Respondents to the array of the Appellants. In view of this order, the objection fails. Accordingly he had already moved an application for transposition of Tej Singh from the array of the Respondents to the array of the Appellants. We allow this application and order that Tej Singh should be transposed from the array of the Respondents to the array of the Appellants. In view of this order, the objection fails. 9. This appeal is dismissed with costs.