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Karnataka High Court · body

2010 DIGILAW 751 (KAR)

Haneef Sait v. Syed Asif

2010-06-23

A.N.VENUGOPALA GOWDA

body2010
Judgment :- 1. This is an appeal by the defendant challenging the decree of the Trial Court ordering his ejectment from the suit premises which is in his occupation as the tenant of the plaintiff. 2. It is a common ground that the defendant was a tenant of the plaintiff and the rent of the premises in his occupation was Rs.16,000/- per month. It is not in dispute that the plaintiff served a notice dated 18.9.2006 (Ex.P1) on the defendant terminating his tenancy after expiry of fifteen days’ period from the date of service of notice and stating that on his failure to do so, legal action will be taken. The notice having been served on the defendant, a reply dated 6.10.2006 (Ex.P3), enclosing with it, a cheque for Rs.16,000/-, being the rent for the month of September, 2006, was sent. The defendant did not vacate the premises even after expiry of the period allowed under the notice (Ex.P-1) and therefore, suit was instituted on 9.11.2006. 3. Written statement was filed contesting the suit, wherein, it was alleged that, on account of non-complying with the demand for more advance and enhanced rent, the plaintiff caused the legal notice on frivolous and vexatious ground, with an oblique motive to evict the defendant and to let out the suit premises to third persons for higher advance and rent. Other allegations made in the plaint were denied. On account of the amendment made to the plaint, additional written statement was filed on 29.01.2010. 4. The Trial Court raised the following issues: i) Does plaintiff prove that he has validly terminated the tenancy of defendant? ii) Does defendant proved that this Court has no jurisdiction to try the suit? iii) Whether plaintiff is entitled for the reliefs claimed in the plaint? iv) What Decree or Order? 5. Plaintiff deposed as PW-1 and Exs.P1 to P4 were marked. For defendant, DWs.1 and 2 deposed written arguments were filed by both the parties. Considering the rival contentions and after appreciation of the evidence, the Trial Court held that, the plaintiff has validly terminated the tenancy of the defendant and that, the defendant has failed to prove that the Court has no jurisdiction to try the suit; and that the plaintiff is entitled for the relief claimed in the suit. Considering the rival contentions and after appreciation of the evidence, the Trial Court held that, the plaintiff has validly terminated the tenancy of the defendant and that, the defendant has failed to prove that the Court has no jurisdiction to try the suit; and that the plaintiff is entitled for the relief claimed in the suit. The suit was decreed and the defendant was directed to hand over possession of the suit premises to the plaintiff within 3 months, by paying Rs.16,000/- p.m. towards damages from the date of suit till handing over vacant possession after deducting the payments made during the pendency of the suit. Feeling aggrieved, the defendant has filed this appeal. 6. Sri G.R. Mohan, learned advocate, appearing for the appellant, contended that, the plaintiff’s suit could not have been decreed because: (i) The notice –Ex.P1 was invalid for the purpose of S.106 of the Transfer of Property Act (‘The Act’ for short). (ii) The notice to quit was waived by the plaintiff by reason of acceptance of the cheque for ERs.16,000/- sent along with Ex.P3 and also the rent amount paid from time to time during the pendency of the suit and the appeal. Learned counsel placed reliance on the decisions in the case of CHOTU MIA Vs. MT. SUNDRI – AIR 1945 PATNA 260 and M/S AMAR PROMOTERS Vs. J.S.A. GAJENDRA REDDY – 2005 AIR KANT.HCR 1884. 7. Sri K. Krishna, learned counsel for the respondent – plaintiff, contended that; (i) A notice complying with the requirements of S.106 of the Act vide Ex.P1 was served on the defendant giving fifteen days’ clear notice to vacate the premises, which was acknowledged and in view of the reply sent as per Ex.P3, the suit was instituted. (ii) The cheque sent along with Ex.P3 is rental arrears due for the month of September, 2006, which the plaintiff accepted and encashed under protest and a specific reply to the said effect was also sent. Since the defendant did not vacate the premises even after expiry of the time allowed under the notice at Ex.P1, as indicated therein, legal action was taken i.e., suit was instituted for relief. (iii) This is not a case to which illustration (a) to S.113 of the Act, which says that, acceptance of rent falling due after the expiry of a notice to quit amounts to waiver of notice, applies. (iii) This is not a case to which illustration (a) to S.113 of the Act, which says that, acceptance of rent falling due after the expiry of a notice to quit amounts to waiver of notice, applies. Merely accepting the cheque sent along with Ex.P3, under protest, cannot be treated as a waiver of the right exercised by issue of Ex.P1. The plaintiff has not waived his right to seek ejectment of the defendant after the expiry of the period of fifteen days allowed under Ex.P-1. (iv) Waiver is a question of fact and it must be properly pleaded and proved. Neither the written statement nor the additional written statement nor the additional written statement filed much less the appeal memorandum has the plea with regard to the alleged waiver. No plea of waiver be allowed to be raise, since there is no factual foundation for it laid in the pleadings. In the absence of an appropriate pleading and a distinct issue, there can be no adjudication. (v) The question as to whether the person giving the notice has by his act shown an indication to treat the lease as subsisting is essentially a question of fact and in reaching conclusion on the said aspect of the matter, the Court must consider all relevant facts and circumstances and the mere fact that rent has been tendered and accepted in the Court during the pendency of the proceedings cannot be determinative in as much as the plaintiff filed/instituted the suit and prosecuted the suit for relief which shows that he never intended to waive the notice to quit and treat the lease as subsisting. Support was derived from the decisions of the Apex Court, to which a reference would be made hereunder. 8. The following points arise for determination: (i) Whether, thee is a valid termination of tenancy of the defendant under Ex.P1? (ii) Whether, the plaintiff waived his right by accepting the amount paid by the defendant along with the reply notice-Ex.P3 and also the amount paid monthly, in the Courts during the pendency of the matter? Re: Point (i): 9. Under S.107 of the Act, a lease of immoveable property from year to year or for any term exceeding one year can be made only by a registered instrument. Any lease of this kind would be void unless it is created by a registered instrument. Re: Point (i): 9. Under S.107 of the Act, a lease of immoveable property from year to year or for any term exceeding one year can be made only by a registered instrument. Any lease of this kind would be void unless it is created by a registered instrument. All other leases of immovable property may be made either by a registered instrument or by an oral agreement accompanied by delivery of possession. Indisputedly, the lease of the suit property by the plaintiff in favour of the defendant was for 11 months. No doubt, the lease agreement between the parties, has not been produced. However, there is no dispute that, the lease was on month to month basis and for a term not exceeding one year. It is not the contention of the defendant that his lease was from year to year or for a period exceeding one year in which even,. The lease could have been only by a registered instrument. The contention is that, the lease term exceeded one year, since the lease agreed on 16.02.2005 for 11 months, was extended subsequently for 6 months and therefore, the termination of tenancy effected under Ex.P1 was not valid. The contention is unacceptable. The factum of lease from month to month and the initially agreed period being not for a term exceeding one year, is not in dispute. Hence, the deeming provisions of the first Part of S.106 of the Act, cannot be attracted in the present case. 10. S.106 provides, inter alia, that in the absence of a contract between the parties, a lease of immoveable property for manufacturing purposes shall be deemed to be a lease from year to year terminable by six months’ notice. In the present case, there is clear admission that, the lease in question was not from year to year or for a period exceeding one year. He lease in question will fail in the second half of S.106, requiring fifteen days’ notice of termination. A lease from month to month or a lease other than a lease from year to year is terminable by fifteen days’ notice. Hence, the notice – Ex.P1 in the present case, is a valid notice to quit. The demand made in the notice was not complied with, which is clear from the reply at Ex.P3. A lease from month to month or a lease other than a lease from year to year is terminable by fifteen days’ notice. Hence, the notice – Ex.P1 in the present case, is a valid notice to quit. The demand made in the notice was not complied with, which is clear from the reply at Ex.P3. It is after the expiry of the fifteen days’ period, the suit for ejectment was instituted in the Court on 9.11.2006. Hence, the contention regarding invalidity of the termination is fallacious. Re: Point (ii): 11. Waiver is not a pure question of law. Waiver is a question of fact and must be properly pleaded and proved. No plea of waiver can be allowed to be raised unless it is pleaded and factual foundation for it is laid in the pleadings. In the absence of appropriate pleading, there can be no distinct issue. Hence, there can be no adjudication of such issue. Adjudication of a dispute by a Civil Court in a civil suit between the parties are governed by the rules of pleadings. Indisputedly, the plea of waiver was not taken by the defendant in his written statement or the additional written statement. There is also no ground regarding waiver, raised in the appeal memorandum. Sri G.R.Mohan, raised the ground only during the arguments. Thus, Sri K. Krishna, is justified in objecting for the ground of waiver being raised for determination. Though I find merit in the objection raised by Sri K. Krishna, still, I would prefer toe examine the merit of the contention. 12. In the case of CHOTU MIA (supra) it was held that, acceptance of rent which has accrued due subsequent to the forfeiture and prior to the institution of a suit in ejectment operates as a waiver of the forfeiture. 13. In the case of M/S.AMAR PROMOTERS (supra), the lessor received the rents tendered by the appellants from time to time, during the pendency of the suit, without prejudice to its suit claim. Question No.III considered reads as follows: “Whether receipt of rent by the plaintiff/lessor, accruing subsequent to suit, would result in a waiver of forfeiture, even though such receipt is declared to be “without prejudice to the suit claim”? Considering the rival contentions it was held as follows: “Rent” as defined under Section 105 of the Act is the consideration under a contract of lease. Considering the rival contentions it was held as follows: “Rent” as defined under Section 105 of the Act is the consideration under a contract of lease. Upon termination of the contract – it would be a contradiction in terms to receive any further consideration. The lessor having chosen to recover damages or compensation for use and occupation of the premises, under the occupation of the lessee, seeks to do so through the medium of the Court. A voluntary and independent act on the part of the lessor to receive sums paid as rent by the lessee cannot be appropriated as being compensation for use and occupation which has not be date Mined or considered by the Court. A voluntary and independent act on the part of the lessor to receive sums paid as rent by the lessee cannot be appropriated as being compensation for use and occupation which has not been determined or considered by the Court. Hence receipt of “rent” accruing subsequent to suit would amount to a waiver of forfeiture as contemplated under Section 112 of the T.P.Act. Receipt of such rent stated to be without prejudice to the suit claim is immaterial”. The said question was answered as follows: “Receipt of rent subsequent to institution of suit, even though stated to be without prejudice to the suit claim, results in waiver of forfeiture even if it could be said that such a forfeiture was impliedly averred in the suit”. 14. Article 141 of the Constitution provides that the law declared by the Supreme Court shall be binding on all Courts within the territory of India. The principle underlying in this Article is salutary in the interest of the administration of justice. The Article promotes certainty and consistency. If there is divergence of opinion between the decision of the High Courts and the Supreme Court, the decision of the Supreme court is binding on the point. 15. The real question which has to be decided is, whether the later judgments of the Supreme Court, wherein the law has been declared are al applicable to the case in hand or not? If on that point, the finding is in the affirmative, it may have to be held, with respect, the law laid down in the two decisions supra, need not be applied, in view of the mandate of Article 141` of the Constitution of India. 16. If on that point, the finding is in the affirmative, it may have to be held, with respect, the law laid down in the two decisions supra, need not be applied, in view of the mandate of Article 141` of the Constitution of India. 16. In the case of SHANTI PRSAD DEVI & ANOTHER VS. SHANKAR MAHTO & OTHERS – AIR 2005 SC 2905 , one of the contentions urged by the lessee was that, on expiry of original period of lease, acceptance of rent clearly showed an ‘assent’ on the part of the lessor to continue the lease. After making a reference to Section 116 of the Act, the Apex Court has held as follows: “We fully agree with the High Court and the first appellate Court below that on expiry of period of lease, mere acceptance of rent for the subsequent months in which the lessee continued to occupy lease premises cannot be said to be a conduct signifying ‘assent’ to the continuance of the lessee even after expiry of lease period”. 17. In the case of C. ALBERT MORRIS VS. K. CHANDRASEKARAN & OTHERS – (2006) 1 SCC 228 , it has been held as follows: “We are, therefore, of the opinion that mere acceptance of rent by the landlord, the first respondent herein, from the tenant in possession after the lease has been determined either by efflux of time or by notice to quit would not create a tenancy so as to confer on the erstwhile tenant the status of a tenant or a right to be in possession. We answer this issue accordingly”. 18. In the case of SARUP SINGH GUPTA VS. S. JAGADISH SINGH & OTHERS – 2006 AIR SCW 1966, the respondent after serving a notice upon the appellant terminating the lease, instituted a suit for eviction on 02.06.1979. Before filling this suit, two notices were given to the appellant on 10.02.1979 & 17.03.1979 and despite notice terminating the tenancy, the respondent accepted rent for the months of April and May 1979 and thereafter. The suit was decreed and the First & Second appeals filed thereafter were dismissed. Before filling this suit, two notices were given to the appellant on 10.02.1979 & 17.03.1979 and despite notice terminating the tenancy, the respondent accepted rent for the months of April and May 1979 and thereafter. The suit was decreed and the First & Second appeals filed thereafter were dismissed. Special Leave petition, was also dismisses subject to the liberty granted to the appellant to seek a review from the High Court by moving an application, taking into consideration that although the plea of waiver of notice on the ground of rent having been continuously accepted by the landlord subsequent to the notice to quit was specifically raised in the High Court, it was neither noticed nor dealt with by the High Court. Review petition having been filed in the High Court was dismissed and the orders were again questioned before the Apex Court, wherein it was contended that, in view of the provision under Section 113 of the Act, the acceptance of rent by the respondent/landed even after effecting notice under Section 111, clause (h), Law declared by the Supreme Court: amounted to waiver of notice to quit within the meaning of Section 113 of the Act and it was further contended that, waiver in the case was on account of implied consent of the landlord, who accepted the rent despite the notice, thereby evincing an intention to treat the lease as subsisting. It was also emphasized that even after filing the suit, the landlord continued to accept the rent tendered by the tenant and reliance was placed on the decision reported in AIR 1925 Calcutta 763. The said contention did not receive acceptance. It was held as follows: “A mere perusal of section 113 leaves no room for doubt that in a given case, a notice given under Section 111, clause (h), may be treated as having been waived, but the necessary condition is that there must be some act on the part of the person giving the notice evincing an intention to treat the lease as subsisting. Of course, the express or implied consent of the person to whom such notice is given must also be established. The question as to whether the person giving the notice has by his act shown an intention to treat the lease as subsisting is essentially a question of fact. Of course, the express or implied consent of the person to whom such notice is given must also be established. The question as to whether the person giving the notice has by his act shown an intention to treat the lease as subsisting is essentially a question of fact. In reaching a conclusion on this aspect of the matter, the Court must consider all relevant facts and circumstances, and the mere fact that rent has been tendered and accepted, cannot be determinative”. Reference was made to the decision in the case of Shanti Prasad (supra) and it was held as follows: “In the instant case, as we have noticed earlier, two notices to quit were given on 10th February, 1979 and 17th March, 1979. The suit was filed on June 2, 1979. The tenant offered and the landlord accepted the rent for the months of April, May and thereafter. The question is whether this by itself constitute an act on the part of the landlord showing an intention to treat the lese as subsisting. In our view, mere acceptance of rent did not by itself constituted an act of the nature envisaged by section 113. Transfer of Property Act showing an intention to treat the lease as subsisting. The fact remains that even after accepting the rent tendered, the landlord did file a suit for eviction and even while prosecuting the said accepted rent which was being paid to him by the tenant. It cannot, therefore, be said that by accepting rent, he intended to waive the notice to quit and to treat the lease as subsisting. We cannot ignore the fact that in any event, even if rent was neither tendered nor accepted, the landlord in the event of success would be entitled to the payment of the arrears of rent. To avoid any controversy, in the event of termination of lease the practice followed by courts is to permit the landlord to receive each month by way of compensation for the use and occupation of the premises, an amount equal to the monthly rent payable by the tenant. It cannot therefore, be said that mere acceptance of rent amounts to waiver of notice to suit unless there by any other evidence to prove or establish that the landlord so intended. In the instant case, we find no other fact or circumstance to support the plea of waiver. It cannot therefore, be said that mere acceptance of rent amounts to waiver of notice to suit unless there by any other evidence to prove or establish that the landlord so intended. In the instant case, we find no other fact or circumstance to support the plea of waiver. On the contrary the filing of and prosecution of the eviction proceeding by the landlord suggests otherwise”. (Emphasis supplied) In view of the categorical declaration of law by the Apex Court that, “a mere acceptance of rent does not amount to waiver of notice to quit, unless there is other evidence to prove or establish that the landlord so intended”, with respect, I would follow the ratio of law declared by the Apex Court, which incidentally is in later point of time, to the two decisions (supra) on which learned counsel for the appellant place reliance. 19. Indisputedly, plaintiff served termination notice dated 18.09.2006 (Ex.P-1) terminating the tenancy of the defendant after expiry of 15 days period from the date of service of notice. Thus the defendant was liable to pay the rent for the month of September 2006. The defendant replied on 06.10.2006 (Ex.P-3). Along with the said reply, he forwarded the cheque for Rs.16,000/-. Being the rent for the month of September 2006./ By accepting the rent of September 2006, the plaintiff did not waive his right. Instead, he instituted the suit on 09.11.2006. In the light of the said circumstances and the decisions of the Apex Court noticed supra, it has to be held that, mere acceptance of rent after the period of termination of tenancy does not amount to waiver of notice to suit. The defendant has not proved the fact that, by acceptance of rent of September 2006, the plaintiff waived his right. On the other hand, the rent received was for September 2006, during which the defendant’s tenancy subsisted. It is only after expiry of 15 days period and after service of notice (Ex.P-1), the termination took effect i.e., in the month of October 2006. Defendant did not pay nor the plaintiff received the rent of October 2006, prior top the institution of the suit i.e., on 09.11.2006. The suit was filed and actively prosecuted for ejectment of the defendant. Defendant did not pay nor the plaintiff received the rent of October 2006, prior top the institution of the suit i.e., on 09.11.2006. The suit was filed and actively prosecuted for ejectment of the defendant. By mere acceptance of rent tendered in the court during pendency of the matter, plaintiff did not intend to waive the notice to quit and treat the lease as subsisting. Point No.2 is answered accordingly. In the result, I pass the following: ORDER For the foregoing reasons, this appeal is devoid of merit and hence, the same shall stand dismissed. Since the appellant has been in possession of the premises, he should have some reasonable time to vacate the premises. Hence, I direct that the decree for ejectment shall not be executable against the defendant/appellant up to 31st Oct. 2010 on condition that, the appellant continues to pay to the respondent, regularly from month to month, an amount of Rs.16,000/- as and by way of damages for use and occupation of the premises. The plaintiff shall refund the security amount of Rs.1,60,000/- on the date the possession of the premises is delivered by the defendant. It is made clear that if there were to be any arrears of damages payable, the plaintiff is at liberty to deduct such amount and refund the balance amount. In the circumstances of the case, there will be no order as to costs.