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2017 DIGILAW 501 (ORI)

Nanda Kishore Swain v. Sarat Kumar Sahu

2017-05-02

D.DASH

body2017
JUDGMENT : This appeal has been filed challenging the judgment and decree passed by the learned Addl. District Judge, Angul in RFA No. 01 of 2004 decreeing the suit filed by the respondent as plaintiff and directing the eviction of the appellant-defendants from the suit house and delivery of its vacant possession followed by the order of payment of arrear house rent. The present respondent as the plaintiff had filed Title Suit No. 171 of 1999 in the court of learned Civil Judge (Sr. Divn.), Angul. The suit is with the prayer for a direction to the appellant-defendants for vacating the suit house and delivery of its vacant possession as well as recovery of arrear house rent of Rs.37,800/- as standing in the month of April, 1998 as well as future house rent. The suit was decreed, in part. The prayer for eviction of the appellant-defendants from the suit shop house was refused. It was decreed only for recovery of arrear house rent of Rs.37,800/- as claimed by the respondent-plaintiff @ Rs.1800/- per month for the period commencing from August, 1996 to April, 1998 with further sum of Rs.25,200/- for the period commencing from December, 2000 to January, 2002 and direction for payment of interest @ 8% per annum on the arrear house rent for the blocked period. 2. The plaintiff-respondent being aggrieved by the dismissal of the suit in so far as the relief of eviction of the respondent-defendants from the suit house is concerned had carried the first appeal. Learned Addl. District Judge in that appeal has set aside the dismissal of that part of the suit concerning refusal of the relief of eviction, holding the finding in that regard to be unsustainable both in fact and law. The lower appellate court thus has allowed the said relief to the respondent-plaintiff. The suit as laid and for the reliefs claimed has been decreed. It may be stated here that the appellant-defendants had neither questioned the decree passed against them for recovery of the arrear house rent etc. by filing regular first appeal nor they had presented any cross-appeal or cross objection after receiving the notice of hearing of the first appeal filed by the respondent-plaintiff as provided in law. 3. It may be stated here that the appellant-defendants had neither questioned the decree passed against them for recovery of the arrear house rent etc. by filing regular first appeal nor they had presented any cross-appeal or cross objection after receiving the notice of hearing of the first appeal filed by the respondent-plaintiff as provided in law. 3. For the sake of convenience, in order to bring in clarity and avoid confusion, the parties hereinafter have been referred to as they have been arraigned in the trial court. 4. The plaintiff’s case is that he is the absolute owner of the suit house and had inducted the defendants as tenants therein on payment of agreed monthly rent of Rs.1800/-. It is stated that agreement to that effect had come into being and tenancy commenced on and from the 1st day of April, 1994 (1.4.1994). The defendants having thus income into the occupation of the suit house started a grocery shop. The plaintiff states to have received a sum of Rs. 48,600/-towards house rent from the defendants for the period commencing from 1.4.1994 to July, 1996. It is alleged that the defendants thereafter stopped paying the rent and sub-let portions to one Pradeep Kumar Jena for running a STD booth and another namely, Manoj Kumar Routray for selling betel and other items. It is further alleged that the defendants also did some alteration and addition in the suit house without the consent and thereby closed the passage of the plaintiff to the inner premises of the suit house. Thus, the defendants are said to be willful defaulters in paying the rent and also to have sub-let portions to different persons and made further alteration and addition without the consent and permission of the plaintiff. Accordingly, it is said that they have grossly violated the terms and conditions of the agreement. The plaintiff in view of all these above, issued a notice dated 5.8.1998 demanding the payment of arrear house rent from the defendants from July, 1996 to July 1998 and asking him to drive out the subtenants. However, the defendants failed to pay the arrear house rent and they also did not take any step to remove the tenants under them. However, the defendants failed to pay the arrear house rent and they also did not take any step to remove the tenants under them. So the plaintiff served a notice dated 20.11.1998 upon the defendants terminating the tenancy and seeking vacation of the suit house within a month from the date of receipt by paying the arrear house rent till then. It is stated that after such notice, the defendants sent the house rent for the month of May to August, 1998 by money order which the plaintiff received on 9.1.1999. But surprisingly thereafter no further payment of house rent was made. In view of above, the plaintiff filed the suit seeking the reliefs as aforestated. 5. The defendants while traversing the plaint averments have not disputed their status as tenants under the plaintiff-landlord in respect of tenanted premises i.e. the suit shop house. The factum of execution of the agreement is not disputed and so also the quantum of rent as agreed to be @ Rs. 1800/-per month. They have denied the allegation of non-payment of house rent while further asserting that they have been paying the house rent to the plaintiff strictly in terms of the agreement even till the time of tendering of written statement and thus they have stated to be not at all in arrear in respect of payment of house rent. It is also stated that the addition and alteration in the shop house have been made with the knowledge and consent of the plaintiff prior to the commencement of the tenancy as per the agreement dated 1.4.1994. The attribution regarding the violation of terms and conditions of the agreement by way of sub-letting of the portions of the house to others have accordingly been said to be false. It is stated that the plaintiff having accepted the house rent up to the month of July, 1999 after service of the notice of termination of tenancy seeking eviction of the defendants from the suit shop house, have waived the notice to quit and as such the suit is attacked as not maintainable for the relief of eviction in view of section 113 of the Transfer of Property Act, 1882. The suit is also attacked on the ground of non-compliance of the provision of section 106 of the T.P. Act by serving valid notice of termination of tenancy prior to its institution. The suit is also attacked on the ground of non-compliance of the provision of section 106 of the T.P. Act by serving valid notice of termination of tenancy prior to its institution. The notice as served is said to be defective and invalid in the eye of law. In that way, it has been said that the suit is not maintainable and/or premature. 6. On the above rival pleadings, the trial court has settled eight issues. Upon analysis of evidence both oral and documentary, the finding on the crucial issue with which now we are concerned in the second appeal has been recorded against the plaintiff that there was no termination of tenancy in accordance with law. The trial court has next rendered the finding after scanning the evidence that the plaintiff has not been able to establish a case of addition and alteration in the suit shop house by the defendants by leading, clear, cogent and acceptable evidence. The other issue relating to arrear of house rent of course has been answered in favour of the plaintiff. Thus the suit had been decreed, only granting the relief of recovery of arrear house rent. 7. The first appellate court has set aside the finding on issue no. 5 upon discussion of the provisions of law as enshrined in sections 106 and 113 of the T.P. Act and testing the facts and circumstances of the case as those emanate from the evidence in that touchstone. Thus it has over turned the finding of the trial court holding affirmatively that the termination of tenancy is in accordance with law. This has finally resulted in decreeing the suit in full by granting the relief of eviction of the defendants from the suit shop house which is the main relief prayed for the suit besides the grant of other relief of recovery of arrear house rent as had been done by the trial court. 8. At this juncture, it is pertinent to state that we are now confined to the substantial question of law as has been framed by order of this Court passed on 19.3.2010 which relates to the finding on issue no. 5 as regards the termination of tenancy and the maintainability of the suit for grant of said relief of eviction of the defendants from the suit shop house which also includes the question of waiver of notice to quit. 9. 5 as regards the termination of tenancy and the maintainability of the suit for grant of said relief of eviction of the defendants from the suit shop house which also includes the question of waiver of notice to quit. 9. Learned counsels for the parties have not raised any other substantial questions of law for being framed in the second appeal during hearing. Rather, they have fairly submitted by them that the finding on the other issue relating to the grant of arrear house rent has attained its finality. 10. The substantial question of law standing for answer in the second appeal is the following:- “Whether the lower appellate court has misinterpreted the notice under section 106 of the T.P. Act terminating the tenancy of the appellants even though the landlord has received rent thereafter?” 11. Learned counsel for the appellants submits that there remains no averment in the plaint with regard to the termination of tenancy and the agreement does not contain any default clause as also any clause for determination of the lease. It is his submission that initially, the plaintiff by notice Ext. 2 had not determined the lease and had not demanded the vacant possession of the suit shop house from the defendants and the subsequent notice, according to him, is not a notice for determination of the lease. According to him, mere demand of vacant possession of the suit shop house cannot amount to the termination of tenancy. He strenuously argued that once the plaintiff has accepted the house rent after service of the second notice under Ext. 5 as provided in section 113 of the T.P.Act it has to be taken to be sufficient enough to record a finding of waiver of the notice and therefore the lower appellate court has erred both in fact and law by upsetting the finding of the trial court and granting the plaintiff with the relief of eviction holding that there has been a valid termination of tenancy as required under law and that there was no waiver. While summing up, he ends in urging that this Court should also bestow due consideration upon the fact that the appellants since long are running the grocery shop there in the suit house and are maintaining their family whereas the plaintiff is not saying that either he himself or any of his family member needs it for occupation for their personal use. 12. Learned counsel for the respondent submits in all in favour of the finding of the lower appellate court. According to him the notice under Ext. 5 is in conformity with the provision of section 106 of the T.P. Act as it now stands having its applicability in full force to the instant case. His next contention is with regard to the waiver of notice to quit with reference to section 113 of the T.P. Act, mere acceptance of house rent sent by money order after institution of the suit has been rightly held as no waiver of notice on the part of the plaintiff and the lower appellate court, according to him, has rightly found that from the said act of receipt, there can be no inference of intention on the part of the plaintiff favouring the continuity of the lease for being treated as subsisting. Therefore, he urges for answering the substantial question of law in affirmative that the lower appellate court’s finding on that score which has led to the grant of relief of eviction to the plaintiff has neither any factual nor legal flaw so as to be visited with any inference. In reply to the last limb of submission of learned counsel for the appellants, learned counsel for the respondent urges that those factual aspects after such prolonged litigation hardly matters and are of no legal consequences when in the instant case the respondent’s waiting is enough being so long. 13. Notice to quit means a notice to terminate a tenancy (whether periodical tenancy or a tenancy for a term of years certain or monthly) in accordance with the provisions of Section 106 of the T.P. Act. The object of the provision as to notice is to enable the tenant to gather up the fruits of his labour. Notice is not a part of cause of action although it is a condition precedent for the commencement of the suit. The object of the provision as to notice is to enable the tenant to gather up the fruits of his labour. Notice is not a part of cause of action although it is a condition precedent for the commencement of the suit. As a matter of fact, the notice is first step in litigation when the cause of action is complete. It only provides a mode of procedure for getting a relief in respect of cause of action, and does not constitute the relief itself. A statutory notice although essential provisionally for a valid suit, does not make it a part of the cause of action in the suit itself. At this juncture, let us advert to the position of law as it stands after amendment in the year 2002 by Amendment Act 3 of 2003 coming into force on 31.12.2002. The first most important change that has been brought about in para-1 of the existing section is deletion of the words “expiring with the end of a year of tenancy and expiring with the end of a month”. So now fifteen days notice is necessary and as provided in subsection 3 of Section 106 of the T.P. Act, even that notice shall not be deemed to be invalid because of any shortage in the period when the suit is filed after the expiry of the period. The objects and reasons of Act 3 of 2003 is to prevent the situations of dismissal of the suits on the lone technicality being filed in ignorance of the legal position and to take care of the hardship faced by the suitor in serving fresh notice and filing fresh suit despite the fact that the defendant had more time available to him than the prescribed period of notice by the date when suit is filed to evict him or even by the date of judgment dismissing the suit. Feeling the same to be of severe hardship that the suitor is facing, in the amendment by insertion of sub-section (3) the provision of sub-section (2) as regards the notice under sub-section/ shall not be deemed to be invalid…..” have been made to apply retrospectively to all notices in pursuance of which any suit or proceeding is pending on the date of commencement of the Amendment Act and to all notices issued prior to the coming into force of that Amendment Act where even no suit or proceeding is filed before such commencement. 14. Furthermore, the provisions of sub-section 4 of section 106 of the T.P. Act, prescribes that the notice must be in writing, signed by or on behalf of the person giving it and that it be either sent by post to the party who is intended to be bound by it or be tendered or delivered personally to such party, or to one of his family or servants at his residence or in case of those be impracticable, it may be done by affixture on a conspicuous part of the property. 15. At this place it is profitable to note the ratio of the decision in case of Vithalbhai Pvt. Ltd. vs. Union of India, AIR 2005 SC 1891 wherein it has been held that even in case of premature suit, it need not be dismissed if on the date of filing of the written statement or on the date of the decree the tenancy has expired. In the cited case:- “xx xx xx the suit was filed twelve weeks before the date on which the lease was to expire by efflux of time within the meaning of clause (a) of Section 111 of the Transfer of Property Act, 1882. The written statement was filed on 24.8.1994. One of the pleas taken in the written statement was that the suit was premature and hence was not maintainable. In our opinion, a suit based on a plaint which discloses a cause of action is not necessarily to be dismissed on trial solely because it was premature on the date of its institution if by the time the written statement came to be filed or by the time the Court is called upon to pass a decree, the plaintiff is found entitled to the relief prayed for in the plaint. Though there is no direct decision available on the point but a few cases showing the trend of judicial opinion may be noticed. Under Section 80 of the CPC no suit shall be instituted against the Government or a public officer until the expiration of two months next after service of notice in writing in the manner set out in the provision and if filed before the expiry of said period, the suit is not maintainable because there is clearly a public purpose underlying the provision. 'The object of the Section is the advancement of justice and securing of public good by avoidance of unnecessary litigation.' See : Bihari Chowdhary and Another v. State of Bihar and Ors., (1984) 2 SCC 627 . In (Vaddadi) Butchiraju and Ors. v. Doddi Seetharamayya and Ors., AIR 1926 Mad 377 the suit was for a sum of money which had not become payable on the date of the suit but became payable since. Visvanatha Sastri, J. (as His Lordship then was) held that the Court could pass a decree for the recovery of money. Reliance was placed on a Full Bench decision in A.T. Raghava Chariar v. O.M. Srinivasa Raghava Chariar (1917) ILR 40 Mad. 308 and a few other cases. Here, in all fairness, it may be mentioned that in (Mylavarapu) Rangayya Naidu v. Basana Simon and Ors., AIR 1926 Mad 594 , Spencer, J. has held that if a suit is premature at the date of institution, though not at the date of decision, a decree cannot be granted and the only course in such cases is to dismiss the suit with liberty to bring a fresh suit upon a proper cause of action. It is pertinent to note that Butchiraju and Ors. case was decided on 5.10.1925 while Rangayya Naidu's case was decided on 7.10.1925 but the former decision though of a prior date was not brought to the notice of the Court deciding the latter case. Tarak Chandra Das and Anr. v. Anukul Chandra Mukherjee, AIR 1946 Cal 118 is a Division Bench decision of Calcutta High Court wherein the suit was declaratory in nature filed under Section 42 of the Specific Relief Act, 1877. Tarak Chandra Das and Anr. v. Anukul Chandra Mukherjee, AIR 1946 Cal 118 is a Division Bench decision of Calcutta High Court wherein the suit was declaratory in nature filed under Section 42 of the Specific Relief Act, 1877. The defendant sought the dismissal of the suit on the ground that the right asserted by the plaintiff was not an existing right but a future and contingent one and whether it would at all come into being or not was dependant upon an uncertain event which might or might not happen. Justice B.K. Mukherjee (as His Lordship then was) speaking for the Division Bench held that though the right must be an existing one, it need not necessarily be a right which is vested already. A person having even a contingent right in a property may sue for a declaration. The Court in the exercise of its discretion may refuse to make such declaration if it considers the claim to be too remote or if the declaration given would be ineffectual and abortive. The question really is not one of jurisdiction but one of discretion to be exercised by the Court. Sankara Pillai v. Mathunni Ittiera, 1958 KLT 220 the suit was for redemption of a mortgage. The mortgage became redeemable on 12.10.1957 but the suit was filed on 23.8.1952. The suit was undoubtedly premature when it was brought. The Division Bench held that the mortgage having become subsequently redeemable it would be unnecessary and unjust to drive the plaintiff to a separate suit. To mitigate hardship of this kind and to shorten litigation the Court can take notice of the subsequent event of the mortgage having become redeemable during the pendency of the suit and grant relief provided the substantive rights of the parties were not affected. The Court decreed the suit but directed the plaintiff to bear the costs incurred by the defendant. Kathringa v. Lonappan, 1969 KLT 334 was a suit for eviction filed under Section 11(3) of the Kerala Buildings (Lease and Rent Control) Act, 1965. The suit could be filed only one year after the date of transfer intervivos in favour of the plaintiff. The plaintiff acquired title by purchase on 1st December, 1962 and the proceedings for eviction were instituted on 11.6.1963. However, there was no objection taken in the written statement to the maintainability of the suit. The suit could be filed only one year after the date of transfer intervivos in favour of the plaintiff. The plaintiff acquired title by purchase on 1st December, 1962 and the proceedings for eviction were instituted on 11.6.1963. However, there was no objection taken in the written statement to the maintainability of the suit. When the case came up for hearing on 10th February, 1965 by which date more than two years and three months had elapsed, the objection was urged. The learned single Judge held that at that stage it was a matter of discretion vesting in the Court and the Court could depart from the general rule that the rights of parties must be determined as on the date of the institution of the action. However, the Single Bench decision in Kathringa v. Lonappan, 1969 KLT 334 was cited before a Division Bench of Kerala High Court in Hameed v. Ittoop, 1970 KLT 501 and was overruled. The Division Bench formed the opinion that the statutory bar enacted in Section 11(3) of Kerala Buildings Act pertains to jurisdiction of the Court. The Court is deprived of power to entertain the petition for eviction by the transferee-landlord filed before the expiry of one year of the date of assignment in his favour. The Division Bench relied on the decision of this Court in V.N. Sarin v. Ajit Kumar Poplai, AIR 1966 SC 432 wherein interpreting a pari materia provision contained in Delhi Rent Control Act, this Court held that the underlying object behind such a provision is to serve a public purpose and is based on public policy to prevent the mischief of unscrupulous landlords entering into transaction of transferring title to property with a view to enable the purchaser to evict the tenant and thereby defeat the legislative intention of protecting tenants from unmerited evictions. A Full Bench of Kerala High Court in Themmalapuram Bus Transport, Palghat v. Regional Transport Authority, Palghat & Ors., 1967 KLT 122 reiterated the well-settled principle that the general rule is that the relief claimed in the suit must be confined to matters existing at the date when the suit was instituted. But that is a rule of discretion and can be departed from in certain circumstances except where such departure would cause manifest advantage or disadvantage to one party. But that is a rule of discretion and can be departed from in certain circumstances except where such departure would cause manifest advantage or disadvantage to one party. In Subbaraya Chetty v. Nachiar Ammal, 1918 (7) LW 403 , money under the mortgage bond did not become payable until a few days after the institution of the suit for its recovery. In Zadba Sadasheo Balpande v. Maharashtra Revenue Tribunal and ors., 1964 MhLJ 559, application for possession was filed 8 days before the date of termination of lease. In both the cases, the respective Division Benches have allowed relief to the plaintiff on the ground that driving the plaintiff to institute another suit would be hardship and no prejudice was caused to the defendant. In our opinion, the correct position of law flows from the above-noted decisions. In Samar Singh v. Kedar Nath and Ors., 1987 Supp. SCC 663, this Court while dealing with an election petition has held that the power to summarily reject conferred by Order 7 Rule 11 of the Code of Civil Procedure can be exercised at the threshold of the proceedings and is also available, in the absence of any restriction statutorily placed, to be exercised at any stage of subsequent proceedings. However, the Court has also emphasized the need of raising a preliminary objection as to maintainability as early as possible though the power of the Court to consider the same at a subsequent stage is not taken away. In Gurdit Singh and Ors. Vs. Munsha Singh and Ors., (1977) 1 SCC 791 it was held that the Court trying a premature suit does not suffer from inability or incapacity to entertain the suit on the grounds of lack of jurisdiction. Dealing with the 'narrower sense' and 'more comprehensive sense' in which the expression 'cause of action' is at times employed, the Court has indicated that the cause of action may suggest all those essential facts without the proof of which the plaintiff must fail in his suit but 'right to sue' may have a different connotation, the accrual of which need not necessarily be treated as an ingredient of cause of action but would be more relevant for the purpose of determining the commencement of the period of limitation. No amount of waiver or consent can confer jurisdiction on a Court which it inherently lacks or where none exists. No amount of waiver or consent can confer jurisdiction on a Court which it inherently lacks or where none exists. The filing of a suit when there is cause of action though premature does not raise a jurisdictional question. The claim may be well-merited and the Court does have jurisdiction to hear the suit and grant the relief prayed for but for the fact that the plaintiff should have waited a little more before entering the portals of the Court. In such a case the question is one of discretion. In spite of the suit being premature on the date of its institution the Court may still grant relief to the plaintiff if no manifest injustice or prejudice is caused to the party proceeded against. Would it serve any purpose, and do the ends of justice compel the plaintiff being thrown out and then driven to the need of filing a fresh suit are pertinent queries to be posed by the Court to itself. Where the right to sue has not matured on the date of the institution of the suit an objection in that regard must be promptly taken by the defendant. The Court may reject the plaint if it does not disclose the cause of action. It may dismiss the suit with liberty to the plaintiff to file a fresh suit on its maturity. The plaintiff may himself withdraw the suit at that stage and such withdrawal would not come in the way of the plaintiff in filing the suit on its maturity. In either case, the plaintiff would not be prejudiced. On the other hand, if the defendant by his inaction amounting to acquiescence or waiver allows the suit to proceed ahead then he cannot be permitted to belatedly urge such a plea as that would cause hardship, may be irreparable prejudice, to the plaintiff because of lapse of time. If the suit proceeds ahead and at a much later stage the Court is called upon to decide the plea as to non-maintainability of the suit on account of its being premature, then the Court shall not necessarily dismiss the suit. The Court would examine if any prejudice has been caused to the defendant or any manifest injustice would result to the defendant if the suit is to be decreed. The Court would examine if any prejudice has been caused to the defendant or any manifest injustice would result to the defendant if the suit is to be decreed. The Court would also examine if in the facts and circumstances of the case it is necessary to drive the plaintiff to the need of filing a fresh suit or grant a decree in the same suit inasmuch as it would not make any real difference at that stage if the suit would have to be filed again on its having matured for filing. We may now briefly sum up the correct position of law which is as follows : A suit of a civil nature disclosing a cause of action even if filed before the date on which the plaintiff became actually entitled to sue and claim the relief founded on such cause of action is not to be necessarily dismissed for such reason. The question of suit being premature does not go to the root of jurisdiction of the Court; the Court entertaining such a suit and passing decree therein is not acting without jurisdiction but it is in the judicial discretion of the Court to grant decree or not. The Court would examine whether any irreparable prejudice was caused to the defendant on account of the suit having been filed a little before the date on which the plaintiff's entitlement to relief became due and whether by granting the relief in such suit a manifest injustice would be caused to the defendant. Taking into consideration the explanation offered by the plaintiff for filing the suit before the date of maturity of cause of action, the Court may deny the plaintiff his costs or may make such other order adjusting equities and satisfying the ends of justice as it may deem fit in its discretion. The conduct of the parties and unmerited advantage to plaintiff or disadvantage amounting to prejudice to the defendant, if any, would be relevant factors. A plea as to non-maintainability of the suit on the ground of its being premature should be promptly raised by the defendant and pressed for decision. It will equally be the responsibility of the Court to examine and promptly dispose of such a plea. The plea may not be permitted to be raised at a belated stage of the suit. A plea as to non-maintainability of the suit on the ground of its being premature should be promptly raised by the defendant and pressed for decision. It will equally be the responsibility of the Court to examine and promptly dispose of such a plea. The plea may not be permitted to be raised at a belated stage of the suit. However, the Court shall not exercise its discretion in favour of decreeing a premature suit in the following cases : (i) When there is a mandatory bar created by a statute which disables the plaintiff from filing the suit on or before a particular date or the occurrence of a particular event; (ii) when the institution of the suit before the lapse of a particular time or occurrence of a particular event would have the effect of defeating a public policy or public purpose; (iii) if such premature institution renders the presentation itself patently void and the invalidity is incurable such as when it goes to the root of the Court's jurisdiction, and (iv) where the lis is not confined to parties alone and affects and involves persons other than those arrayed as parties, such as in an election petition which affects and involves the entire constituency. (See : Samar Singh v. Kedar Nath and Ors., 1987 Supp. SCC 663). One more category of suits which may be added to where leave of the Court or some authority is mandatorily required to be obtained before the institution and was not so obtained. In the case at hand, the act of the plaintiff filing the suit before 25.6.1984 cannot be said to be malicious or intended to overreach the Court. The defendant's reply dated 8.11.1983 prompted the plaintiff in filing the suit inasmuch as the plaintiff reasonably thought that a cloud was already cast on his entitlement to recover the property and he should promptly approach the Court . True, the defendant could have changed his mind and thought of delivering the possession of the property to the plaintiff on or after 25.6.1984 the date whereafter only the suit could ordinarily have been filed and in that case there would have been no occasion at all for filing the suit. The defendant filed its written statement much after that date. The objection as to maintainability of the suit was taken in the written statement. The defendant filed its written statement much after that date. The objection as to maintainability of the suit was taken in the written statement. If only it would have been pressed for decision and the Court would have formed that opinion at the preliminary stage then the plaintiff could have withdrawn the suit or the Court could have dismissed the suit as premature. In either case, the plaintiff would have filed a fresh suit based on the same cause of action soon after 25.6.1984. By the time the suit came to be decided on 12.2.1992, the dismissal of the suit on the ground of its being premature would have been a travesty of justice when the plaintiff was found entitled to a decree otherwise. The learned Single Judge rightly overruled the defendant's objection and directed the suit to be decreed. The Division Bench ought not to have interfered with the judgment and decree passed by the learned Single Judge.” Thus the position emerges out is that:- “xx xx xx where a suit is filed even before the expiry of the lease period, where the right to sue has not matured on the date of the institution of the suit, an objection in that regard must be promptly taken by the defendant, the court may reject the plaint if it does not disclose the cause of action, as it dismisses the suit with liberty to the plaintiff to file a fresh suit on its maturity, even plaintiff may himself withdraw the suit at that stage and such withdrawal would not come in the way of the plaintiff in filing the suit on its maturity. In either case, the plaintiff would not be prejudiced. On the other hand, if the defendant by his inaction amounting to acquiescence or waiver allows the suit to proceed ahead then he cannot be permitted to belatedly urge such a plea as that would cause hardship, may be irreparable prejudice, to the plaintiff because of lapse of time. If the suit proceeds ahead and at a much later stage the Court is called upon to decide the plea as to non-maintainability of the suit on account of its being premature, then the Court shall not necessarily dismiss the suit. It is observed by the Apex Court that, it is the responsibility of the Court to examine and promptly dispose of such a plea. It is observed by the Apex Court that, it is the responsibility of the Court to examine and promptly dispose of such a plea. The plea may not be permitted to be raised at a belated stage of the suit. However, the Court shall not exercise its discretion in favour of decreeing a premature suit in cases where there is a mandatory bar created by a statute which disables the plaintiff from filing the suit on or before a particular date or the occurrence of a particular event, when the institution of the suit before the lapse of a particular time or occurrence of a particular event would have the effect of defeating a public policy or public purpose, if such premature institution renders the presentation itself patently void and the invalidity is incurable such as when it goes to the root of the Court's jurisdiction and where the lis is not confined to parties alone and affects and involves persons other than those arrayed as parties, such as in an election petition which affects and involves the entire constituency or where leave of the Court or some authority is mandatorily required to be obtained before the institution and was not so obtained. In such circumstances, the Apex Court observed that the suit can be dismissed at any stage of the proceedings. The plea of non-maintainability of the suit is to be raised without delay and the court is also required to dispose of this plea as expeditiously as possible. The transitory provision introduced in relation to notice under Section 106 has in fact taken care of this situation.” 16. This suit having been filed on 28.7.1999, the trial court has rendered the judgment dated 29.11.2003. So the provision inserted by way of amendment in section 106 of the T.P. Act gets squarely applicable here to the notice so as to judge its validity or otherwise. The trial court ought to have taken note of that which of course appears to have rightly taken into account by the lower appellate court in rectifying the error/mistake on the part of the trial court. In view of above, applying the provision of law as aforesaid, the answer to the said issue that by serving Ext. 5 upon the defendant, termination of tenancy has been duly made in accordance with law is found to be flawless. 17. In view of above, applying the provision of law as aforesaid, the answer to the said issue that by serving Ext. 5 upon the defendant, termination of tenancy has been duly made in accordance with law is found to be flawless. 17. Next arises the question as to whether the act of acceptance of the house rent by the plaintiff subsequent to the service of notice of termination under Ext. 5 amounts to waiver as provided under section 113 of the T.P. Act. Admittedly, the defendants did not vacate the suit house after service of notice vide Ext. 5 terminating the tenancy and the demand of vacant delivery of possession as made by the plaintiff was thus not acceded to. The only development which had taken place after service of notice under Ext. 5 is the sending of arrear house rent by the defendants for the period for running from May to August, 1998 by money order which had been received by the plaintiff on 9.1.1999. It may again be stated here that the suit has been instituted on 28.7.1999. The law is well settled that acceptance of rent itself does not amount to waiver of notice and there has be clear expression of the intention to treat the lease as subsisting by way of conduct or by such conscious and voluntary act which can be taken as nullifying the effect of termination of tenancy made before hand by said notice. 18. In case of Sarup Singh Gupta vs. S. Jagdish Singh, AIR 2006 SC 1734 where the landlord had received the house rent after service of notice terminating the tenancy and before the institution of the suit, the Hon’ble Apex Court refused to take that itself into consideration to hold that the same constitutes waiver. Under the circumstance, it was not taken to be the intention on the part of the landlord to treat the lease as subsisting. So in the absence of any other evidence to otherwise establish that the landlord intended to waive the notice already served and thus to have treated it as if subsisting, the contention of waiver has been repelled. Tender and acceptance are not sufficient to constitute waiver under section 113 of the T.P. Act as has been held therein. So in the absence of any other evidence to otherwise establish that the landlord intended to waive the notice already served and thus to have treated it as if subsisting, the contention of waiver has been repelled. Tender and acceptance are not sufficient to constitute waiver under section 113 of the T.P. Act as has been held therein. Where a person has instituted a suit seeking eviction, it is difficult to accept the contention at the first blush that he still intended to treat the lease as subsisting. It has to be proved through other evidence showing the facts and circumstances vis-à-vis the conduct of the parties then. Such tender and acceptance of rent may stand to lend support to that favouring waiver. Illustration (a) to section 113 of the T.P. Act, must be understood and applied in consonance with the principle underlying the section and with due reference to the intention of the lessor. There is no warrant for the view that the mere receipt of rent, notwithstanding the intention of the lessor, should, of its own force and divorced from the circumstances of the case, be regarded as amounting to waiver. The termination of tenancy which has been made a cause of action for filing a suit cannot be done away with on the grounds of alleged waiver by the acceptance of a certain amount towards the house rent. The burden of proving all these above lies on the party taking the defence of waiver to non-suit the suitor. In the instant case, barring the factum of tender and acceptance, no other evidence being let in by the defendants, the burden of proof has been found to have not been discharged and no fault is found therein. 19. The aforesaid discussion and reason accordingly provide the answer to the substantial question of law in favour of affirmation of the findings recorded by the lower appellate court on the termination of tenancy as required under law as well as negating the contention of the defendants relating to waiver. So the appellants move to upset the judgment and decree passed by the lower appellate court has to fail. 20. So the appellants move to upset the judgment and decree passed by the lower appellate court has to fail. 20. Having said this, taking into account the last limb of submission of learned counsel for the appellants and the response thereto, while dismissing this second appeal, the defendants are hereby directed to deliver vacant possession of the suit house to the plaintiffs on or before the 30th day of November, 2017 provided they give an undertaking to above effect and further undertake to clear up the arrear as well as the current house rent and/or damage till vacation as above directed in three equal instalments i.e. 1st one by end of June, 2017; next one by end of September, 2017 and the last one on or before the date fixed for vacation. The defendants are accordingly directed to furnish the undertaking as above before the trial court on or before the 20th day of May, 2017. It is also made clear that on the failure of the defendants either to give the undertaking or thereafter if they fail to abide by the same, the plaintiff would be at liberty to seek the indulgence of the court for appropriate action as per law for breach of said undertaking as also for execution of the decree and in that event the defendants would be liable to pay the costs throughout. The second appeal stands accordingly disposed of.