RAJ MAL v. BHIM SEN — 1998 DIGILAW 19 (HP)

JUDGMENT R.L. KHURANA, J.—The sole question arising for determination in the present case is :— "Where a landlord files a suit for ejectment of the tenant after determining the tenancy by serving a notice, does the acceptance of rent by him thereafter constitute a waiver within the meaning of Section 113, Transfer of Property Act, 1882?" The present second appeal has been preferred by the defendant against the judgment and decree dated 17.9.1997 of the learned District Judge, Kangra at Dharamshala, reversing the judgment and decree dated 2.4.1997 of the learned Sub-Judge (II), Kangra. 2. The plaintiff is the owner while the defendant is the tenant of a double storeyed, slate roofed, 8’ x 18 katcha shop (specifically described in the plaint and hereinafter referred to as the shop in dispute) situated in Mohal and Mauza Sunher, Tehsil and District Kangra. The tenancy of the defendant was terminated by the plaintiff under Section 106, Transfer of Property Act, 1882, whereby he was called upon to hand over vacant possession of the shop in dispute by 31.7.1993. Since the defendant failed to vacate the shop in dispute, the plaintiff on 21.9.1993 filed the suit for possession of the shop in dispute by way of ejectment of the defendant. 3. The defendant while residing the suit pleaded that he was not liable to be ejected since a permanent tenancy was created in his favour. It was further pleaded that due to his favour. It was further pleaded that due to his own act, conduct, acquiescence and silence of the plaintiff, the suit was not maintainable. 4. The learned Sub-Judge vide judgment and decree dated 2.4.1997 dismissed the suit. The tenancy of the defendant was held to be a monthly one having been validly terminated. While non-suiting the plaintiff, the learned Sub-Judge came to the conclusion that consequent upon acceptance of rent by the plaintiff after termination of tenancy, the notice issued under Section 106, Transfer of Property Act, 1882, stood waived within the meaning of Section 113 of the said Act. Therefore, the plaintiff was not entitled to claim ejectment of the defendant. 5. On appeal by the plaintiff, the learned District Judge, held that mere acceptance of rent by the plaintiff did not amount to waiver of notice to quit within the ambit of Section 113, Transfer of Property Act, 1882. Therefore, the plaintiff was not entitled to claim ejectment of the defendant. 5. On appeal by the plaintiff, the learned District Judge, held that mere acceptance of rent by the plaintiff did not amount to waiver of notice to quit within the ambit of Section 113, Transfer of Property Act, 1882. Other findings of the learned Sub-Judge on various issues were affirmed. Consequently, the plaintiff was held entitled to possession of the shop in dispute by ejectment of the defendant. The learned District Judge accordingly on 17.9.1997 allowed the appeal and after setting aside the judgment and decree of the learned Sub-Judge, granted a decree for possession of the shop in dispute in favour of the plaintiff by ejectment of the defendant. 6. Admittedly, the tenancy of the defendant was terminated vide notice Ex. PW-1/A whereby the defendant was called upon to vacate the shop in dispute by 31.7.1993. The plaintiff while appearing as PW 1 has categorically admitted the receipt of rent for the period up to 31.12.1995. The suit out of which the present appeal has arisen, as stated above, was filed on 21.9.1993. 7. Though the actual date of payment of rent by the defendant to the plaintiff has not been proved, the evidence coming on record leads to the only conclusion that such rent was paid after the institution of the suit. Section 113, Transfer of Property Act, 1882 reads : "113.Waiver of notice to quit.—A notice given under Section 111, Clause (h), is waived, with the express or implied consent of the person to whom it is given by any act on the part of person giving it showing an intention to treat the lease as subsisting." Illustration (a) to the said section reads :— “(a) A, the lessor, gives B, the lessee, notice to quit the property leased. The notice expires. B tenders, and A accepts, rent which has become due in respect of the property since the expiration of the notice. The notice is waived." Placing reliance on illustration (a), quoted above, the learned Counsel for the defendant has contended that since admittedly rent was tendered by the defendant and accepted by the plaintiff, the notice to quit Ex. PW 1/A stood waived. 8. The notice is waived." Placing reliance on illustration (a), quoted above, the learned Counsel for the defendant has contended that since admittedly rent was tendered by the defendant and accepted by the plaintiff, the notice to quit Ex. PW 1/A stood waived. 8. In Smt Sharda Sharma v. Smt Gulab Devi Dhown (AIR 1972 Allahabad 435) in a suit filed by the landlord for ejectment of the tenant and arrears of rent, the tenant had paid rent by way of cheques to the landlord. A question was raised by the tenant that acceptance of rent by the landlord amounted to waiver within the meaning of Section 113, Transfer of Property Act, 1882. It was held :— "In order to constitute a waiver of notice to quit under Section 113 the tenant has to prove that the landlord by accepting the rent for the period subsequent to the termination of tenancy had an intention to treat the lease as subsisting. In the absence of any such intention on the part of the landlord being proved, mere acceptance of an amount tendered by the tenant during the pendency of the suit for ejectment against him cannot amount to waiver." Faced with a similar situation, the High Court of Madras in Saleh Brothers v. K. Rajendran and another (AIR 1970 Madras 165) has held :— "The plain language of Section 113 indicates that a waiver does not ipso facto result from any act of omission or Commission on the part of the lessor, but the act must be such as clear evidence of the lessors intention to treat the lease as subsisting. It is the intention of the lessor to treat the lease as subsisting which is the predominant and deciding factor in bringing about a waiver and not any particular act by itself. Illustration (a) must, therefore, be understood and applied in consonance with the principle underlying the section with due reference to the intention of the lessor. It is the intention of the lessor to treat the lease as subsisting which is the predominant and deciding factor in bringing about a waiver and not any particular act by itself. Illustration (a) must, therefore, be understood and applied in consonance with the principle underlying the section with due reference to the intention of the lessor. There is no warrant for the view that mere receipt of rent, whatever may be the intention of the lessor, should of its own force, divorced from the circumstances of the case be regarded as amounting to a waiver." It was further held :— "The context in which a particular act is referred to in Section 113 shows that the rent should be received at such time and in such manner as to be equivalent to the landlord assenting to the lessee continuing in possession. The receipt of rent may only create a presumption and cannot by its own force amount to a waiver. Section 113 consists of two limbs : (a) the express or implied consent of the person to whom notice is given and (b) the act of the person giving the notice showing the intention to treat the lease as subsisting1. In order to constitute a waiver, both the limbs must concurrently operate, which means that an act by itself and of its own force, without reference to the intention of the parties, cannot bring about a waiver." 9. The High Court further went on to observe in para 14 of the judgment in the following terms:— ".... the preponderance of the weight of authority is that in that in addition to the receipt of rent by the landlord there receipt of rent by the landlord there should be proof that the receipt was with the intention to treat the lease as subsisting. According to the decisions, there should be either an express contrat, or conduct of the parties justifying the intereference that, after the determination of the contractual tenancy the land-lords intention was that the occupation of the premises was as a tenant. Whether the counduct of the party justified such an interference would undoubtedly turn upon the facts and circumstances of each case." 10. Whether the counduct of the party justified such an interference would undoubtedly turn upon the facts and circumstances of each case." 10. In Purhit Lakshmanchandji v. Vercha Venkata Sree Ramchandra Murty (AIR 1976 Andhra Pradesh 428) a similar question came up for consideration and it was held that there is no warrant for the view that mere receipt of rent, whatever may be the intention of the lessor, should of its own force, divorced from the circumstances of the case, be regarded as amounting to a waiver. The mere fact that after the filing of the suit for eviction, the lessor accepted rent, would not mean that the landlord had the intention to treat the lease as subsisting. The question as to what was the intention of the landlord is a question of fact, which is required to be decided on the facts and in the circumstances of each case. 11. A similar view was taken by the High Court of Bombay in Hashmatrai and another v. Tarachand and others (AIR 1979 Bombay 95). It was held:— "Section 113 would come into picture only when there is an act on the part of the lessor showing an intention to treat the lease as subsisting. There could not be any occasion for the landlord to show such an intention when he has already filed a suit on the basis of the termination of tenancy. In such a case, it is the suit that has to be decided and mere payment of some amount of rent during the pendency of the suit would be irrelevant, unless a party pleads and proves that on account of the said payment, there was a compromise of the suit." 12. In Calcutta Credit Corporation Ltd. and another v. Happy Homes (Private) Ltd. (AIR 1968 SC 471), the Apex Court pointed out that under Section 113 of the Transfer of Property Act, the act which operates as a waiver must show an intention to treat the lease as subsisting and other partys consent, express or implied therefor. In that case the tenants, who were holding over, on 12.8.1953 issued a notice to the landlord expressing their intention to vacate the tenanted premises on 31.8.1953. However, on 26.8.1953 they withdraw their notice. In that case the tenants, who were holding over, on 12.8.1953 issued a notice to the landlord expressing their intention to vacate the tenanted premises on 31.8.1953. However, on 26.8.1953 they withdraw their notice. The landlord did not agree to the withdrawal of the notice and insisted the lease stood terminated/determined under Section 111 (h) of the Transfer of Property Act. Dealing with the question of waiver, the Apex Court observed:— "Clearly Section 113 contemplates waiver of the notice by any act on the part of the person giving it, if such an act shows an intention to treat the lease as subsisting and the other party gives his consent.... express or implied therefor. The law under the Transfer of Property Act on the question in hand is not different from the law in England. Once a notice is served determining the tenancy or showing an intention to quit on the expiry of the period of the notice, the tenancy is at an end, unless with the consent of the other party to whom the notice is given the tenancy is agreed to be treated as subsisting." 13. The preponderance of authority appears to be in favour of the view that acceptance of rent after the suit for ejectment is not to be regarded as a waiver since once the matter comes before the Court, the election becomes irrevocable. The plain language of Section 113, Transfer of Property Act, 1882, shows that the act of the lessor must be such as to constitute a clear evidence of his intention to treat the lease as subsisting. 14. The learned District Judge has, therefore, rightly held that mere acceptance of rent by the plaintiff during the pendency of the suit in the absence of clear intention of the plaintiff to treat the lease as subsisting, would not tenantamount to waiver within the meaning of Section 113, Transfger of Property Act, 1882. 15. No other point was urged before me during the course of hearing by the learned Counsel for the parties. Resultantly, the present appeal fails and the same is accordingly dismissed with costs. Appeal dismissed.