Jagdish Chandra v. Basanti Lal — 1975 DIGILAW 132 (RAJ)

JAIN, J.—This is an appeal by the tenant arising out of a suit in ejectment and for recovery of mesne profits. 2. The suit shop is situate in the town of Udaipur. It was constructed in October, 1968. Basanti Lal admitted Jagdish Chandra as a tenant of this shop on and from 18th of January, 1969 under the rent note of that date Ex. 1. The agreed rent was Rs. 150/ per month. Under clause 7 of the agreement the tenancy was fixed for one year but under clause 8 it was stipulated between the parties that the suit shop was liable to be vacated after one months notice. On January 16, 1970 Basanti Lal determined the tenancy of Jagdish Chandra by notice with effect from February 18, 1970. The tenant having failed to vacant the suit shop Basanti Lal brought the present suit under appeal on April 24, 1970, for ejectment and for recovery of Rs. 300/- as damages for use and occupation of the suit shop. 3. The suit was opposed by Jagdish Chandra by his written statement submitted on 4th Nov., 70, on various grounds. The case was tried by the Additional Civil Judge, Udaipur, on various issues arising between the parties. The trial Judge held that the suit shop was on rent with the defendant on and from January 18, 1969. The construction of the shop was completed in the month of October, 1968. The shop was given on rent for a period of one year yet there was a contract to the contrary that the tenancy was terminable by one months notice and the notice in the suit was valid. It was also held that though the real owner of the property was Pushpa Devi w/o Basanti Lal but the tenancy was created by Basanti Lal and Jagdish Chandra ac-cepted the same and he took possession in consequence of the said tenancy. The suit was, thererefore, maintainable. 4. The learned trial Judge was also of the opinion that provisions of sec. 13 of the Rajasthan Premises (Control of Rent & Eviction) Act, 1950, (hereinafter referred to as the Act) were not applicable to the suit premises. The suit was eventually decreed on January 9, 1974. Being dissatisfied with this decree Jagdish Chandra went in appeal but his appeal was turned down by the learned District Judge, Udaipur. Hence this second appeal. 5. The suit was eventually decreed on January 9, 1974. Being dissatisfied with this decree Jagdish Chandra went in appeal but his appeal was turned down by the learned District Judge, Udaipur. Hence this second appeal. 5. The principle contention raised by Mr. Bhandari on behalf of the appellant is that after the filing of the suit the landlord accepted the rent from 18-2-1970 to 18-8-1970 and it thus waived the notice. Placing reliance on sec. 113 of the Transfer of Property Act it has been argued that the plaintiff is not entitled to seek eviction of the tenant. This contention was also raised before the learned lower appellate court. But it did not find favour with him. Reference has been made to the receipt at page B-16 on the record of the trial Court to show that a sum of Rs. 915/75 was paid by Jagdish Chand and received by Shri Anand Swaroop for the plaintiff Basanti Lal. It was also pointed out that the rent was received by the plaintiff subsequent to 18th August, 1970. On the other hand, Mr. Parikh learned counsel for the appellant sub-mitted that the acceptance of rent did not amount to waiver within the meaning of sec. 113 of the Transfer of Property Act. His submission is that after the quit notice the plaintiff instituted the suit for ejectment of the tenant from the suit shop. The tenant made the payment under the supposed impression that he is liable to make the payment under sec. 13(4) of, the Act and as such on the facts and circumstance of the case it cannot be said that the plaintiff waived the notice. Particularly in view of the fact that he continued to pursue the suit. 6. On behalf of the appellant reliance has been placed on Bengal Nagpur Rai-way Company Limited vs. Balmukunda Biseswar Lall (l) Their Lordships were deal-ing with the question of acceptance of rent due after forfeiture from the lessee. It was observed that notwithstanding the protest of the lessor that such acceptance is without prejudice to his right to insist upon forfeiture operates as a waiver of notice to quit. The case on hand is not a case of forfeiture. Sec. 112 of the Transfer of Property Act provides for waiver of forfeiture under sec. 111(g) whereas sec. 113 deals with the waiver of notice to quit given under sec. The case on hand is not a case of forfeiture. Sec. 112 of the Transfer of Property Act provides for waiver of forfeiture under sec. 111(g) whereas sec. 113 deals with the waiver of notice to quit given under sec. 111(h); There is a marked difference between the two provisions. Waiver of notice to quit does not like waiver of forfeiture depend upon the election of one part, but upon consent of both. This difference is manifested by the use of the words in sec. 113 "with the express or implied consent of the person to whom the notice is given". This is not the case within sec. 112. 7. Another case on which reliance has been placed is Manicklal Dey Chaudhuri vs. Kadambini Dassi(2). In this case notice to quit was given to the tenant, but on his failure to vacate the premises the suit was filed. During the pendency of the suit rent was accepted by the landlord. Buckland J. held that where rent is accepted after the notice to quit whether before or after the suit is filed, the landlord thereby shown an intention to treat the lease as subsisting. His Lordship met the argument of the other side by the following observations: "One cannot logically say that the fact of accepting rent by itself shows an intention to treat the lease as subsisting if no suit has been filed and a different intention if a suit has been filed. The intention shown by the act itself must be the same in either case. Therefore by accepting the rent, the plaintiff in my opinion showed an intention to treat the lease as subsisting and acceptance of rent was waiver of the notice to quit notwithstanding the fact a suit had already been filed for the purpose of ejecting the tenant. It has also to be observed that u/s. 112 the acceptance of rent after suit has been exactly provided for, and it may well be argued that bad it been intended that acceptance of rent after suit should not operate as a waiver in the case of a notice to quit one would have expected that a proviso similar to that in S. 112 would have been incorporated in S. 113." 9. Following the Calcutta decision is the case Ram Dayal vs. Jawala Prasad (3). Following the Calcutta decision is the case Ram Dayal vs. Jawala Prasad (3). Asthana J., who was dealing with the similar question observed as follows: "Unless once it is found that the rent for a period subsequent to the notice to quit was accepted by the plaintiff landlord it is that circumstances alone which has to be taken into consideration for finding out whether by so accepting the rent the plaintiff intended that the relationship of landlord and tenant should subsist between the parties. That the defendant was un able to satisfy the Court by his evidence affirmatively that there was an agreement arrived at for continuing the tenancy, is immaterial. It is not the diligent prosecution of the suit which is material in judging whether the plaintiff as landlord intended to continue the tenancy of the defendant, what is material is the acceptance of rent by him for a period subsequent to the notice quit." 10. Mr. Bhandari also referred to Shekh Peer Bux vs. Mowzah Ally (4), and Jagabandhu Sahu vs. Surendra Nath Bhuyan(5) to thus effect. In these cases as well it was held that if the rent has been accepted by the landlord from the tenant during the continuance of the suit payment and acceptance was held to waive the notice to quit. 11. Sections 112 and 113 of the Transfer of Property Act read as follows: "Sec. 112—A forfeiture under sec. 111, cl. (g), is waived by acceptance of rent which has become due since the forfeiture, or by distress for such rent, or by any other act on the part of the lessor showing an intention to treat the lease as subsisting : Provided that the lessor is aware that the forfeiture has been incurred : Provided also that, where rent is accepted after the institution of a suit to eject the lessee on the ground of forfeiture, such acceptance is not a Waiver. "Sec. 113. A notice given under sec. 111, cl. (h), is waived, with the express or implied consent of the person to whom it is given, by any act on the part of the person giving, it showing an intention to treat the lease as subsisting." 12. There are two illustrations appended to sec. 113 of the Act. None of them covers the case on hand. 111, cl. (h), is waived, with the express or implied consent of the person to whom it is given, by any act on the part of the person giving, it showing an intention to treat the lease as subsisting." 12. There are two illustrations appended to sec. 113 of the Act. None of them covers the case on hand. Waiver of notice does not like waiver of forfeiture depend upon the election of one party alone but upon the consent of both. As a matter of fact it proceeds on the basis of a agreement between the landlord and tenant. Motile J. in Blyth vs. Dennes(6) observed: "There is this difference between a determination of a tenancy by a notice to quit and a forfeiture ; in the former case, the tenancy is put an end to by the agreement of the parties, which determination of the tenancy cannot be waived without the assent of both; but, in the case of a forfeiture, the lease is voidable only at the election of the lessor; in the one case the estate continues; though voidable in the other, the tenancy is at an end." The question under sec. 113, in fact, imputes to the landlord the intention of creating a renewal of tenancy or treating the tenancy as still subsisting. It is essentially a question of fact. The question in this case which arises is as to whether the receipt of the amount of. Rs. 915/75 by the landlord from the tenant during the pendency of the suit amounts to waiver or not. As already noticed this has to be inferred from the facts and circumstances of each. The receipt shows that the amount of Rs. 915-75 was paid by the tenant on 19th August, 1970, in the court and it was received by Mr. Anand Swaroop on behalf of the landlord. The tenant applied to the court for a direction to deposit the amount of rent and on having obtained this direction, the deposit of the amount of rent for the subsequent months was withdrawn by the plaintiff. There is no manner of doubt that the plaintiff continued with the suit and no step was taken by the tenant to ask the court to dismiss the plaintiffs suit on the ground that in having accepted the rent from 18th February, 1970 onwards the plaintiff has waived the notice to quit. There is no manner of doubt that the plaintiff continued with the suit and no step was taken by the tenant to ask the court to dismiss the plaintiffs suit on the ground that in having accepted the rent from 18th February, 1970 onwards the plaintiff has waived the notice to quit. It is thus obvious that the tenant did not make the payment with the intention to keep his tenancy subsisting. I have, therefore, nothing on the record except the receipts which go to show that the amount of rent was received by the plaintiff. It does not give rise to an inference expressly or by implication that the rent was accepted with the intention to waive the notice and to keep the tenancy subsisting. The learned lower appellate Court held on the basis of the plain-tiffs affidavit that the rent after 18th August, 1970 was received by him as compen-sation for use and occupation of the suit shop, and it was not received as rent. How-ever, in my opinion it would not make much difference unless there are circumstances on the record to give rise to the inference that the landlord in accepting the rent clearly intended to waive the notice or to keep the tenancy subsisting. The appellants plea that the plaintiff is not entitled to get the decree for eviction caanot be accepted. In short where a landlord files a suit for ejectment after the determining the tenancy by serving a notice on the tenant and claims damages for use and occupation and the defendant makes payment to the landlord without insisting on him to withdraw the suit, the landlord cannot be said to have waived his right asserted by him to eject the tenant. If the landlord actually continued the proceeding of the case or appeal with regard to the ejectment of the tenant, acceptance of rent alone by him cannot be treated as a waiver. 13. No decision of this court has been cited at the bar. However, I find sup-port from the following decisions —Kamlapat Sahai vs. Mt. Manho Bibi(7). Khumani vs. Saktey Lal(8). Ilahibux vs. Munir Khan (9). Motilal vs. Basant Lal (10). Puran Mal Jaiswai vs. Onkarnath Choudhary (11). Ram Lal vs. Sardari Lal(12). 14. In the Oudh case(7), the Calcutta case decided by Buckland J. was considered. However, I find sup-port from the following decisions —Kamlapat Sahai vs. Mt. Manho Bibi(7). Khumani vs. Saktey Lal(8). Ilahibux vs. Munir Khan (9). Motilal vs. Basant Lal (10). Puran Mal Jaiswai vs. Onkarnath Choudhary (11). Ram Lal vs. Sardari Lal(12). 14. In the Oudh case(7), the Calcutta case decided by Buckland J. was considered. The learned Judge dealt with the question in the following manner: "On the question of waiver, the learned advocate for the appellant relied upon a decision of the Calcutta High Court reported in A.I R. 1926 Cal. 763, in which a learned single Judge of that court has held that acceptance of rent during the pendency of a suit amounts to a waiver of the notice. The learned Judge points out that, in S. 113, T.P. Act, there is no proviso similar to the second proviso contained in sec. 112 of that Act. From this he came to the conclusion that a notice could be waived even after a suit had been brought to enforce the rights which arose by reason of that notice With all deference to the learned Judge I am unable to agree with this reason." He further observed that sec. 113 does not contain a proviso because it only relates to an act showing an intention to treat the lease as subsisting. Once a suit has been instituted, it cannot possibly be said that any act of the lessor shows an intention to treat the lease as subsisting unless he withdraws the suit. He may renew the lease, in which case it would not be a question of waiver but a question of fresh lease. 15. Regarding Khumanis case 8) the learned Judge observed that if the landlord actively proceeded with regard to the ejectment of the tenant mere acceptance of rent by him cannot be treated as waiver so as to deprive him of the right of ejectment in pursuance of the decree which he has obtained. He was also of the opinion that even the use of the word rent in the receipts given by the landlord does not constitute waiver. 16. He was also of the opinion that even the use of the word rent in the receipts given by the landlord does not constitute waiver. 16. In Motilals case (10), the learned Judge observed as follows: "As will appear from the language of S. 113 a waiver can be brought about by the active of the landlord if after determin- ing the truancy of notice the landlord chooses to accept rent again from the tenant. In such an event u/s. 113, T.P. Act. a notice for determination of the lease already given by the landlord to the tenant will be deemed to have been waived. No question of waiver arises after the landlord has brought a suit on the basis of a valid notice given for determina tion of the lease. After such a suit has been brought, there can be no waiver, though it is always open to a landlord to renew the lease at any time he pleases. I do not therefore think that any question of waiver arises in this case." 17. Sinha C.J. in Ilahibux (9) was also of the opinion that an act of waiver is an act of the party after knowing all the circumstances of the case and leading to the irresistible conclusion that he had given up the rights asserted by him previously. It was also observed: "It is true that in some cases it has been held that after a notice to quit has been served on the tenant, if the landlord has received certain payments by way of rent he will be deemed to have waived the notice. But in this case not only had the landlord served the notice to quit but he had actually instituted the suit for ejectment and for damages for use and occupation If the defendant wished to insist upon the plaintiff withdrawing his claims inclusive of the claim for ejectment and damages for use and occupation he could have entered into an agreement with him and then made then made the payment. In that case, of course, the position would have been clear, But without insisting upon the plaintiff withdrawing his suit for ejectment and for damages for use and occupation, if he made certain payments cannot be taken to be inconsistent with the plaintiffs right which he sought to enforce by the suit." 18. In that case, of course, the position would have been clear, But without insisting upon the plaintiff withdrawing his suit for ejectment and for damages for use and occupation, if he made certain payments cannot be taken to be inconsistent with the plaintiffs right which he sought to enforce by the suit." 18. Their Lordships deciding the Patna case( 11) held that the question whether or not there was a notice to quit is purely a question of an intention of the parties. In order, therefore, to determine whether or not in a particular case there was waiver of notice to quit one has to see whether from the conduct of the landlord and tenant, by demand and acceptance of rent or by demand followed by express promise to pay, or otherwise an intention to treat the lease as subsisting can be inferred, and this would certainly depend upon the facts and circumstances of each case. When it is a question of intention, it is plain that not even the payment and acceptance of rent by the landlord after the notice to quit, much less a mere demand of rent; necessarily waives the notice. 19. The same view has been taken by the learned Judges in Ramlals case (12). The observations of Buckland J contained in Calcutta case (2) were dissented. 20. On consideration of the cases referred to above I am clearly of the opinion-that in the present case it cannot successfully be urged on behalf of the appellant that the landlord having accepted the rent during the pendency of the suit waived the notice to quit and intended to keep the tenancy subsisting. 21. Another contention on behalf of the appellant is that there is a clear inconsistency in sec. 2(2)(e) and sec. 13 of the Rajasthan Premises (Control of Rent & Eviction) Act, 1950. The argument is that sec. 13 contains a non-obstante clause and as such this section overrides sec. 2(2)(e). In support of this contention reliance has been placed on K. Parasuramaih vs. Pokuri Lakshmma (13). The relevant observations are: "A non obstante clause is usually used in a provision to indicate that: that provision should prevail despite anything to the contrary in the provision mentioned in such non-obstante clause. 2(2)(e). In support of this contention reliance has been placed on K. Parasuramaih vs. Pokuri Lakshmma (13). The relevant observations are: "A non obstante clause is usually used in a provision to indicate that: that provision should prevail despite anything to the contrary in the provision mentioned in such non-obstante clause. In case there is any inconsistency or a departure between the non-obstante clause and another provision one of the objects of such a clause is to indicate that it is the non-obstante clause which would prevail over the other clause. It does not however necessarity mean that there must be re pugnancy between the two provisions in all such cases." 22. Section 2(2)(e) reads as follows: Sec. 2. Extent, commencement and applica tton—(2) Secs 1 to 4 and 27 to 31 of this Act shall come into force at once, and the remaining provision thereof shall extent to such areas in the State of Rajasthan and shall come into force therein with effect from such date as may be from time to time be notified by the State Government in the Official Gazette : Provided that nothing in the Act shall apply, (6) to any premises the construction of which was completed on or after the 1-6-1961, for a period of seven years from the date of such completion." 23. So far the proposition of law is concerned there can be no dispute and in fact the learned counsel for the respondent has not raised any controversy. By sec. 2 (2) (e) the provisions of Act that is from sec. 5 to sec. 26 have not been made applicable to the premises falling under clause (e) for a period of seven years. This has been found as a fact that the suit shop was constructed in October, 1968. Section 13 would not be applicable to this building for a period of seven years from October, 1968. In this view of the matter it is difficult to accept the contention of Mr. Bhan-dari that sec. 13 would apply even in a case of this type This has been held by this Court that after the expiry of seven years provisions of this Act, which has not been made applicable by this proviso will start governing the building, and as soon as that contingency happens sec. 13 will come into play and will have its full effect. 13 will come into play and will have its full effect. That is after October 1975) sec. 13 will be applicable to the suit property as well. But so long seven years do not expire the question of applicability of sec. 13 does not arise, and Mr. Bhandari cannot avail of the position of law that he has canvassed before me. No other point was argued. 24. In the result the appeal fails and it is hereby dismissed. In the circumstances of the case the parties will bear their own costs of the appeal. 25. Learned counsel for the appellant prays for leave to appeal to Division Bench. But I do not think it to be a fit case for grant of leave. The leave is refused.