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2014 DIGILAW 2537 (ALL)

Satendra Singh v. Vinod Kumar Bhatotia

2014-08-20

SHASHI KANT GUPTA

body2014
JUDGMENT Hon’ble Shashi Kant Gupta, J.—This revision has been filed against the order dated 16.8.1991 passed by Additional District Judge, VIIth, Gorakhpur in S.C.C. Suit No. 15 of 1982, whereby the suit filed by the plaintiff for arrears of rent and ejectment was decreed against the revisionist. Brief facts of the case are as follows : 2. The suit for arrears of rent and ejectment was inter alia filed on 24.11.1982 on the following allegations : (I) The plaintiff/opposite party was the owner of the disputed shop situated at Bhalotia Market, Mohalla-Begpur Muglani alias Mian Bazar, Gorakhpur in which the revisionist/defendant was the tenant paying rent at the rate of Rs. 300/- per month. (II) The defendant had taken the shop on rent for eleven months only and his tenancy was monthly starting from the first date of each English Calender month and ending on the last day of the said month. (III) The defendant had executed memorandum of agreement of tenancy on 1.8.1981 for a period of 11 months i.e. for the period from 1.8.1981 to 30.6.1982. (IV) The shop in question was constructed in the year 1978 hence U.P. Act No. XIII of 1972 does not apply upon the same and the defendant had admitted this fact in the agreement dated 1.8.1981. (V) The tenancy of the defendant came to an end on 30.6.1981. (VI) It was also agreed that in case the defendant occupies the shop in dispute after efflux of time he will be liable to pay Rs. 400/- per month as damages of his unauthorized use and occupation. (VII) That the defendant did not pay rent from December, 1981 till June 1982 at the rate of Rs. 300/- per month and also did not vacate the shop in question after the expiration of the tenancy by efflux of time, therefore, he defendant is liable to pay Rs. 400/- per month as damages for his unauthorized use and occupation in addition to arrears of rent and ejectment. (VIII) The defendant was served with legal notice of demand ejectment dated 18.8.1982 by Registered A/D which was personally served on him on 19.8.1982 but inspite of personal service of notice of demand and ejectment the defendant paid no heed and neither paid the arrears of rent nor vacated the shop in question. (IX) The defendant is liable to pay Rs. (IX) The defendant is liable to pay Rs. 2100/- as rent from December 1981 to June 1982 at the rate of Rs. 300/- and from July 1982 damages for his unauthorized use and occupation at the rate of Rs. 400/- per month in addition to ejectment. 3. The revisionist filed his written statement denying the allegations made by the plaintiff/opposite party and inter alia stated that the shop was constructed in the year 1970 not in 1978 hence U.P. Act No. XIII of 1972 was applicable. Rent was Rs. 250/- and the tenancy commenced from 1979. Rent was paid up to September, 1981 and from October, 1981, when it was refused by the landlord, rent was tendered through Bank Draft for the period from October, 1981 to July 1982 on 21.7.1982 for Rs. 3000/-. Plaintiff maliciously filed a suit being O.S. No. 271 of 1982 for recovery of interest Rs. 105/- but the same was dismissed by the Court below and the order passed by the Court below, which order was confirmed up to the High Court. 4. The Trial Court framed 8 issues for deciding the suit. Issue No. 1- Whether the shop in question was constructed in the year 1978 and U.P. Act No. 13 of 1972 was not applicable? If so its effect. Issue No. 2- Whether the tenant/defendant is in arrears of rent w.e.f. December, 1981? If so its effect. Issue No. 3- Whether the plaintiff is entitled for damages at the rate of Rs. 400/- per month? Issue No. 4- Whether the notice issued under Section 106 of the Transfer of Property Act is illegal and invalid? Issue No. 5- whether the plaintiff is entitled for any relief? Issue No. 6- Whether is suit is barred by the principle of waiver. Issue No. 7- Whether the tenant/defendant has sub-let the shop in question illegally without the consent of the owner of the shop to Preetam Medical Agency as it has been mentioned in para 7(A) of the plaint? If so its effect. Issue No. 8- Whether is suit is barred by the principle of estoppel and acquiescence? 5. Issue No. 7- Whether the tenant/defendant has sub-let the shop in question illegally without the consent of the owner of the shop to Preetam Medical Agency as it has been mentioned in para 7(A) of the plaint? If so its effect. Issue No. 8- Whether is suit is barred by the principle of estoppel and acquiescence? 5. The Court below after considering the evidence and submission of the parties came to the conclusion that shop in question was beyond the purview of U.P. Act No. 13 of 1972 and also recorded a finding of fact that that the tenant/defendant was in arrears of rent w.e.f December, 1981 and the landlord was entitled for damages at the rate of 400/- per month from the tenant/defendant. The Court below decided the Issue No. 7 (with regard to the sub-letting) in favour of the tenant/defendant. On the basis of the aforesaid findings, the Court below decreed the suit in favour of the landlord. Hence the present revision. 6. Learned counsel for the revisionist has submitted that the judgment and decree dated 16.8.1991 passed by the lower Court is based on complete misreading of the case and misconception of legal position relevant to the matter. He further submitted that the Court below has erred in holding that the shop in question was assessed by the local authority in the year 1988 and the provisions of U.P. Act No. 13 of 1972 were not applicable to the building in question. He further submitted that the rent for the period from September, 1981 to July, 1982 was paid by the revisionist to the landlord/opposite party by Bank Draft as such there was no arrears of rent at all and the contrary view taken by the Court below is illegal. He further submitted that the Court below in the Suit No. 271 of 1982 between Vinod Kumar Bhalotia v. Preetam Medical Agencies, has held that Rs. 3000/- was never advanced as loan by the plaintiff to the revisionist, as such, the amount paid by the revisionist was towards the rent for the period from October, 1981 to July, 1982, therefore, the contrary view taken by the Court below is illegal and erroneous. He further submitted that Municipal Assessment Order dated 8.8.1988 does not relate to the shop in question but to some other shop situate in Mohalla Chak Jalal. 7. He further submitted that Municipal Assessment Order dated 8.8.1988 does not relate to the shop in question but to some other shop situate in Mohalla Chak Jalal. 7. Per contra, learned counsel for the landlord/opposite party has supported the findings recorded by the Court below and submitted that the impugned order is just and proper and the same have been passed in accordance with law. He further submitted that Mohalla Chak Jalal and Bhalotia Market, Mohalla Begpur Muglani alias Mian Bazar, Gorakhpur are one and the same. While referring to explanation 1 of sub-section 2(2) of Act No. 13 of 1972, it has been further submitted that the first municipal assessment of the building was made on 8.8.1988, as such, the shop in question does not come within the purview of U.P. Act No. 13 of 1972. He further submitted that there was a fixed term tenancy for 11 months, therefore, there was no requirement to issue any notice under Section 106 of the Transfer of Property Act to terminate the tenancy. He further submitted that the Court below rightly came to the conclusion that the tenant/revisionist committed default in payment of rent. Even otherwise, the tenant had no right to remain in the possession of the shop in question after the expiry of 11 months as provided in the rent agreement dated 1.8.1981 and the status of the tenant/revisionist after the expiry of 11 months became that of a trespasser. He further submitted that the dismissal of the Suit No. 271 of 1982 which was filed for recovery of Rs. 105/- has no bearing on the case in hand. He further submitted that the rent agreement dated 1.8.1981 was made for a period of only 11 months and in the absence of any renewal or fresh agreement, the revisionist was liable to ejectment and also to pay arrears of rent and damages. 8. Heard Sri Tarun Verma, learned counsel for the revisionist, Sri Arvind Srivastava, learned counsel for the respondent and perused the record. The execution of the rent agreement dated 1.8.1981 for a period of 11 months i.e. 1.8.1981 to 30.6.1982 at the rate of Rs. 300/- per month has not been denied by the revisionist. 8. Heard Sri Tarun Verma, learned counsel for the revisionist, Sri Arvind Srivastava, learned counsel for the respondent and perused the record. The execution of the rent agreement dated 1.8.1981 for a period of 11 months i.e. 1.8.1981 to 30.6.1982 at the rate of Rs. 300/- per month has not been denied by the revisionist. The first contention of the learned counsel for the revisionist is that the municipal assessment order dated 8.8.1988 does not relate to the disputed premises since the disputed shop is situated at Bhalotia Market, Mohalla- Begpur Muglani alias Mian Bazar, Gorakhpur, whereas the municipal assessment order dated 8.8.1988 relates to the premises situated at Mohalla Chak Jalal. I find no substance in the submission of the learned counsel for the revisionist. Perusal of the record clearly reveals that notice dated 8.6.1988 (205-C) was issued by the Nagar Mahapalika, Gorakhpur whereby annual letting value of the building in question was fixed at Rs. 40956/- for the assessment purpose and the objection was invited from the plaintiff. In the said notice the name of the revisionist Satendra Singh has been shown against shop No. 13 at the monthly rent of Rs. 300/-. The names of other tenants have also been mentioned in the said notice against their respective shop numbers. Against the said notice, objection dated 14.6.1988 was filed by the plaintiff before the Assessing Authority, Nagar Mahapalika, Gorakhpur. Subsequent thereto, the assessment order of the building in question was passed under U.P. Nagar Mahapalika Adhiniyam fixing the annual letting value at Rs. 40956/- for the assessment purpose. 9. This apart a partition suit No. 156/1971 was also filed by Sriprakash Bhalotia against Vinod Kumar Bhalotia and other co-owners and the address of the premises has been shown Begpur Muglani. The document relating to partition suit was filed by the revisionist himself. It is not the case of the revisionist that the plaintiff landlord is owning any other premises in addition to the building in question. The provisional assessment order which was followed by the final assessment order dated 8.8.1988 contains the name of the revisionist as tenant, as such, it cannot be said that the municipal assessment order dated 8.8.1988 does not relate to the building in question. 10. It is also notable that the revisionist himself has admitted in the rent agreement that the building in question was constructed in the year 1978. 10. It is also notable that the revisionist himself has admitted in the rent agreement that the building in question was constructed in the year 1978. The revisionist has not filed any evidence whatsoever to indicate that the building in question was constructed in the year 1970. It is also notable that the revisionist himself had filed a copy of the decree passed in Suit No. 15/1970 alongwith the copy of compromise arrived at between the co-owners of the building in question wherein the plaintiff was one of the party. The said document reveals that it was with regard to suit for partition of land in the year 1970 and not with respect to building in question as at the relevant time i.e. in the year 1970 no construction over the said land was made. It clearly shows that the land was partitioned amongst the six co-owners. The oral evidence adduced by the plaintiff also indicates that the shop in question was constructed in the year 1978. In this connection, learned counsel for the plaintiff referred to the statement of Prakash Bhalotia, brother of the revisionist, in whose favour the registered power of attorney was executed. The Court below while recording the finding that the disputed premised was beyond the purview of U.P. Act No. XIII of 1972 referred to numerous documents and oral evidence to indicate that the shop in question was constructed in the year 1978. The documents relating to compromise in a Suit No. 15/1970 also indicates that the said compromise was with regard to the land and not the building thereon in question. This apart the building in question has been assessed for the first time in the year 1988. The documents relating to compromise in a Suit No. 15/1970 also indicates that the said compromise was with regard to the land and not the building thereon in question. This apart the building in question has been assessed for the first time in the year 1988. In this connection, it is useful to refer to Explanation 1 of Section 2(2) of the Uttar Pradesh Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972, which is quoted herein below: “the construction of a building shall be deemed to have been completed on the date on which the completion thereof is reported to or otherwise recorded by the local authority having jurisdiction, and in the case of building subject to assessment, the date on which the first assessment thereof comes into effect, and where the said dates are different, the earliest of the said dates, and in the absence of any such report, record or assessment, the date on which it is actually occupied (not including occupation merely for the purposes of supervising the construction or guarding the building under construction) for the first time.” 11. In support of his contention, learned counsel for the landlord/opposite party has placed reliance upon the decision of the Supreme Court in the Case of Saleem v. District Judge, Muzaffarnagar and others, (1998) 7 SCC 242 , wherein it has been held as follows: “11. In our view, the aforesaid decisions cannot be of any avail to the appellant in the facts of the present case. The reason is obvious. No evidence is available on record to show as to whether the municipal authorities had issued any notice or it recorded construction of the premises at any time prior to the date of assessment i.e. 1.4.1982. Once such evidence is absent and was not available and the only evidence available was the date of first assessment i.e. 1.4.1982 as per Explanation I to sub-section (2) of Section 2, the only date which could have been taken into consideration for deciding the question whether 10 years had elapsed from the date of construction of the building was the date of assessment i.e. 1.4.1982. 10 years had to be counted from that date. 12. 10 years had to be counted from that date. 12. In fact, the present controversy is squarely covered against the appellant by a decision of three Judge Bench of this Court in the case of Om Prakash Gupta v. DIG Vijendrapal Gupta, [1982]3SCR491 . Considering the very same explanation Justice Misra speaking for the Bench in paragraph 6 of the report observed that a perusal of Explanation I makes it abundantly clear that the date of occupation would be taken to be the date of completion of the construction only when there is no report or record of the completion of the construction or no assessment thereof. If there is an assessment, as in the present case it is, it will be the date of the first assessment which will be deemed to be the date of completion of the construction and in that view of the matter the building had not become more than ten years’ old on the date when the revision came to be decided by the High Court. It is also to be noted that in the said decision the argument was that the building was occupied prior to the first date of assessment. That evidence was not held to be relevant for deciding the question of applicability of Explanation I as prior occupation by the tenant was not mentioned by the Legislature as one of the requirements for applicability of Explanation I to sub-section (2) of Section 2 of the Rent Act. 13. Consequently, the submission of learned counsel for the appellant that even de hors the explanation and the condition mentioned therein prior occupation of the premises by the tenant should be relevant cannot be countenanced. Even that apart reliance placed by the learned counsel for the appellant on the extract of sanction of water connection by the Municipality especially column 4 thereof wherein the word ‘house’ is mentioned, is of no avail to her as water connection might have been taken on 1.11.1973 but that by itself would not show that the construction of the suit shop had come into existence on that date and on the contrary, the document relied upon by the respondent to which we have already referred clearly indicates that the premises continued to be open plot till 31.3.1982. It is therefore, obvious that the suit premises had come into existence some where in the beginning of the financial year 1982. However, the date of actual construction of the shop would pale into insignificance in view of express terminology of Explanation I to sub-section (2) of Section 2 of the Rent Act as clearly ruled by the three Judge Bench of this Court in the case of Om Prakash Gupta (supra).” 12. Admittedly in the present case also the completion of the building was not reported by the local authorities and the first assessment was made in the year 1988. Therefore, as per Explanation 1 of sub-section 2(2) of U.P. Act No. 13 of 1972, it will be date of first assessment which will be deemed to be date of completion of the construction and in that view of the matter building had not become more than ten years old when the suit in question was filed. In view of the aforesaid discussion, it cannot be said that the Court below has committed any illegality or infirmity while arriving at the conclusion that the shop in question was beyond the purview of U.P. Act No. 13 of 1972. 13. The second contention of the learned counsel for the revisionist is that the Court below has erred in holding that the revisionist was in arrears of rent from December, 1981 onwards, since it failed to consider that a bank draft for Rs. 3000/- towards rent for the period from October 1981 upto July 1982 was duly sent by the revisionist and was accepted by the plaintiff/opposite party. Therefore, the Court below has committed a patent illegality in holding that the revisionist had committed default in payment of rent. It is further submitted that the Suit No. 271 of 1982 was filed by the revisionist for recovery of interest of Rs. 105/- with the allegation that Rs. 3000/- was advanced by the landlord/opposite party to the Preetam Medical Store in which the revisionist was one of the partners, although the loan amount of Rs. 3000/- was returned to the landlord but the interest accrued thereon was not paid, as a result the aforesaid suit for recovery of the said amount was filed by the revisionist. It is further submitted that the suit was dismissed by the Court below holding that no such advance of loan of Rs. 3000/- was returned to the landlord but the interest accrued thereon was not paid, as a result the aforesaid suit for recovery of the said amount was filed by the revisionist. It is further submitted that the suit was dismissed by the Court below holding that no such advance of loan of Rs. 3000/- was given by the revisionist to Preetam Medical Store and the said order was confirmed up to the High Court. Therefore, the Trial Court has committed a manifest illegality in not considering that the amount of Rs. 3000/- was not for any other purpose but towards rent. It is further submitted that the suit is also barred by the principles of res judicata. 14. I have given serious consideration to the submission made by the learned counsel for the revisionist. A bare perusal of the order passed in Suit No. 271 of 1982 clearly shows that the Trial Court has not held that the money paid by the revisionist to the landlord/opposite party was towards the arrears of rent. There is nothing on record to indicate the period for which the alleged amount (Rs.3000/-) was paid to the landlord/opposite party. It is also notable that the bank draft of Rs. 3000/- was allegedly paid by Preetam Medical Store, a partnership firm and not by the revisionist in his individual capacity, as such, the alleged amount cannot be treated as rent particularly when there is no cogent evidence to indicate that the money was paid towards the arrears of rent for the period from October, 1981 to July, 1982 by the revisionist in his individual capacity. The plea with regard to the res judicata cannot be accepted since neither the parties were same in the two suits nor has it been held in the former suit that the bank draft for Rs. 3000/- was given towards the arrears of rent. 15. The Court below has also observed that the rent for the period up to November, 1981 already stood paid by the revisionist, as such, there was no occasion for him to pay the rent for the month of October and November twice to the plaintiff/opposite party. The Court below after taking into consideration the documentary evidence including account books, income tax papers, rent receipts etc. The Court below after taking into consideration the documentary evidence including account books, income tax papers, rent receipts etc. as well as oral evidence of the parties rightly came to the conclusion that the revisionist committed default in payment of rent from December, 1981 onwards. 16. The next submission on behalf of the revisionist is that the notice under Section 106 of the Transfer of Property Act was invalid as the landlord after accepting the rent for the period upto July, 1982 had accorded his consent to the revisionist to continue his tenancy. This argument of the revisionist is misconceived and is out rightly rejected. It is not disputed that the agreement executed between the parties was for only 11 months i.e. for the period from October, 1981 up to June, 1982, the lease thus expired on 30.6.1982 by efflux of time. In fact the notice under Section 106 of the Transfer of Property Act was not required since the tenancy was for a fixed term as the lease had expired by efflux of time by reason of Section 111(a) of the Transfer of Property Act. Besides this, even if it is presumed that the rent for the month of July was accepted by the landlord it would not in any way improve the case of the revisionist. At the most, the revisionist would become a month to month tenant after the expiry of the lease period and his tenancy could be terminated by a notice under Section 106 of Transfer of Property Act. In any case, in the present matter it has not been pleaded by the revisionist at any stage that he was a tenant holding over after the expiry of the lease i.e. 30.6.1982 within the meaning of Section 116 of Transfer of Property Act. There is nothing on record to suggest that the plaintiff landlord either consented to revisionist continuing in possession or accepted rent from December, 1981 onwards or renewed the tenancy agreement after the expiry of lease on 30.6.1982. In fact the notice under Section 106 of the Transfer of Property Act was not required in the matter, it was irrelevant and superfluous particularly when it was not in dispute that no amount or rent was received by the plaintiff landlord after the service of notice i.e. after 19.8.1988 issued under Section 106 of the Transfer of Property Act. In fact the notice under Section 106 of the Transfer of Property Act was not required in the matter, it was irrelevant and superfluous particularly when it was not in dispute that no amount or rent was received by the plaintiff landlord after the service of notice i.e. after 19.8.1988 issued under Section 106 of the Transfer of Property Act. In view of the above, the revisionist would be treated as a trespasser and would have no legal right to continue in the occupation, after the expiry of the lease i.e. 30.6.1982. In this connection, it is useful to refer to the decision of Supreme Court in the case of M. Vijayalaxmi v. G. Goverdhan Reddy, (1997) 11 SCC 358 , wherein it has been held as follows: “(4) The learned counsel for the respondent has urged that the suit filed by the appellant was based on the alleged termination of the tenancy by notice dated 28.1.1985 and since the said notice was invalid the suit must fail. We are unable to agree. The suit was for recovery of possession of the premises after termination of the tenancy. Merely because the appellant had given a notice terminating the tenancy by notice dated 28.1.1984 (sic 1985) would not mean that the appellant was not entitled to seek the possession of the property after tenancy had come to an end by efflux of time under Section 111(a) of the Transfer of Property Act. Therefore, even if it is held that the notice dated 28.1.1985 was not a valid notice under Section 106 of the Transfer of Property Act it could be regarded as a notice indicating that the tenancy would not be continued after the term of the tenancy comes to an end. In these circumstances it cannot be said that the suit filed by the appellant was not maintainable and decree for eviction could not be passed in favour of the appellant.” 17. Since after issuance of notice under Section 106 of Transfer of Property Act by the landlord, admittedly no rent was received by the landlord, it cannot be a case of waiver. I am fortified in my view by a decision of the Apex Court in the case of Joginder Singh Sodhi v. Amar Kaur, (2005) 1 SCC 31, wherein it has been held as follows: “We are not impressed by the argument. I am fortified in my view by a decision of the Apex Court in the case of Joginder Singh Sodhi v. Amar Kaur, (2005) 1 SCC 31, wherein it has been held as follows: “We are not impressed by the argument. Firstly, waiver is a question of fact which must be expressly pleaded and clearly proved. No such plea had been raised either by the tenant or by the “sub-tenant’ before the Rent Controller, before the Appellate Authority or even in the High Court. Such question cannot be allowed to be raised for the first time in this Court. That apart, the language of Section !3(2)(ii)(a) of the Act is clear and unambiguous. It mandates that no tenant can sub-let the tenanted property or part thereof without the written consent of the landlord. In the present proceedings, it is not even the case of the tenant (deceased Mukand Singh) that he had obtained ‘written consent’ of the landlady to sub-let the shop to his son Joginder Singh. On the contrary, his assertion that the property was taken by him for his son was not believed. Hence, order of eviction cannot be held illegal as the doctrine of waiver cannot be applied. A bald plea of waiver cannot defeat statutory provision made in larger public interest [Vide M/s Shalimar Tar Products Ltd. v. H.C. Sharma and others, [1998] 1 SCC 70; Pulin Behari Lal v. Mahadeb Dutta and others. [1993] 1 SCC 629].” 18. It may also be pertinent here to refer to a decision of the Supreme Court in the case of Raptakos Brett & Co. Ltd. v. Ganesh Property, (1998) 7 SCC 184 , wherein it has been held as follows: “In view of the aforesaid settled legal position, it must be held that on the expiry of the period of lease, the erstwhile lessee continues in possession because of the law of the land, namely that the original landlord cannot physically throw out such an erstwhile tenant by force. He must get his claim for possession adjudicated by a competent Court as per the relevant provisions of law. The status of an erstwhile tenant has to be treated as a tenant at sufferance akin to a trespasser having no independent right to continue in possession.” 19. He must get his claim for possession adjudicated by a competent Court as per the relevant provisions of law. The status of an erstwhile tenant has to be treated as a tenant at sufferance akin to a trespasser having no independent right to continue in possession.” 19. In this connection, it is also useful to refer to the decision of Supreme Court in the case of C. Albert Morris v. K. Chandrasekaran and others, (2006) 1 SCC 228 , wherein it has been held as follows: “Though the arguments of the learned senior counsel appearing for the appellant are attractive on the first blush yet on a careful reconsideration of the same, it has no merits. The judgments cited by the learned senior counsel appearing for the appellant are not only distinguishable on facts but also on law. Much argument was advanced on the receipt of the rent by the landlord after the cancellation of the lease. The consensus of judicial opinion in this country is that a mere continuance in occupation of the demised premises after the expiry of the lease, notwithstanding the receipt of an amount by the quondam landlord would not create a tenancy so as to confer on the erstwhile tenant the status of tenant or a right to be in possession. In this context, we may refer to judgment of this Court in Raptakos Brett & Co. Ltd. v. Ganesh Property, (1998) 7 SCC 184 . In paragraph 13 of the said judgment, this Court held as under: “In view of the aforesaid settled legal position, it must be held that on the expiry of the period of lease, the erstwhile lessee continues in possession because of the law of the land, namely that the original landlord cannot physically throw out such an erstwhile tenant by force. He must get his claim for possession adjudicated by a competent Court as per the relevant provisions of law. The status of an erstwhile tenant has to be treated as a tenant at sufferance akin to a trespasser having no independent right to continue in possession. The following judgments may also be beneficially looked into in support of the above submission: The judgment in Saleh Bros. The status of an erstwhile tenant has to be treated as a tenant at sufferance akin to a trespasser having no independent right to continue in possession. The following judgments may also be beneficially looked into in support of the above submission: The judgment in Saleh Bros. v. K. Rajendran and another (supra) which deals with the receipt of rent subsequent to the notice determining lease and pending adjudication suit and as to whether receipt of rent by itself amounts to waiver. In paragraphs 12, 19, 20 & 31, this Court held as under: “Para 12 # 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 subsisting”. 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. So much is quite clear from the plain language of the section, which embodies the basic principles, and I find no justification for reading the Illustrations as being repugnant to the section. Every effort should be made to interpret the Illustration in conformity with the main section. The principle underlying Section 116 of the Act will also apply in applying Section 113 as this is also a case of continuance of the lease restoring the old tenancy.” 20. The Court below has given cogent, convincing and satisfactory reasons while decreeing the suit. The findings recorded by the Courts below are neither perverse nor based on any extraneous or irrelevant material and have been recorded on meticulous evaluation of evidence and pleadings available on record. This Court cannot substitute the opinion of the Court below with its own opinion unless it is found that that the conclusion drawn by the lower Courts are erroneous or perverse. 21. In view of the above, I do not find any illegality or infirmity in the impugned order. 22. While parting with the case, I am constrained to make certain observations. 21. In view of the above, I do not find any illegality or infirmity in the impugned order. 22. While parting with the case, I am constrained to make certain observations. A simple case of arrears of rent and ejectment filed in the year 1982 against the revisionist on the basis of rent agreement executed merely for a period of 11 months has taken more than three decades to complete its journey up to this Court. It is indeed a very sorry state of affairs. Judiciary is an institution where the people repose faith. It is the justice which this institution dispenses. It is the confidence of people who approach the judiciary that it commands. It is the sanctity which strengthens the justice delivery system but it is very alarming that Justice delivery system is weighed down with pending and backlog cases. The major contributing factors inter alia for this were an inadequate number of Judges and infrastructure deficiencies. Nothing short of immediate and emergent measures are required to solve this crisis, otherwise this magnificent edifice of justice will crumble down. 23. In the result, the revision is dismissed. —————