B.K. Narayana Iyengar v. H.V. Subba Rao And Anr.

ORDER

1. The petitioner before this Court is the tenant and the respondents are the landlords. The respondents applied to the learned Munsiff, Dodballapur, in H.R.C. No. 3 of 1954 to evict the petitioner on the ground that they wanted the premises for their own use and occupation and also on the ground that the premises required repairs. The learned Munsiff rejected the application. In his opinion the building did not require any substantial repairs. He arrived at the conclusion that the respondents bona fide required the house for their own use, but felt unable to grant any relief to them as in his view the petition was not sustainable. He opined that it was barred by the rule of res judicata in view of the decision in H.R.C. No. 8/49-50. He further held that the quit notice issued by the landlords has been waived as they have received rent for a period subsequent to the determination of the lease.

2. The respondents went up in appeal to the learned Third Additional District Judge, Bangalore. It was tried as H.R.C.A. No. 61 of 1956. The learned District Judge agreed with the learned Munsiff that the building needed no repairs but he differed from the learned Munsiff on the question of res judicata and also on the question of waiver. He accepted the finding of the learned Munsiff that the respondents needed the house bona fide for their requirements and consequently allowed the appeal and ordered the eviction of the tenant. The tenant has come up in revision to this Court.

3. It is necessary to mention a few more facts. The first respondent is the son of the second respondent. The first respondent had filed earlier an application to evict the tenant on the ground that he had defaulted in the payment of rent and also on the ground that the house was required for the use of his mother and brother. The said application had been tried as aforesaid as H.R.C. No. 8 of 1949-50. The Court seems to have concentrated mainly on the question of arrears of rent. No attention was focussed on the question whether the landlord required the house for his own use. In the present petition as originally filed the respondents alleged that the house was required for the use of the second respondent (second petitioner in the trial Court) as she wanted to stay at Dodballapur.

It was urged that she was finding her stay in Bangalore inconvenient and also that she wanted to educate her deceased daughter's son at Dodballapur. The first respondent is employed in the Electrical Department of the State Government. He was occupying Government quarters. During the pendency of the petition he was transferred to another post and the Government required him to vacate the premises which he was occupying. He got his petition amended and averred therein that he required this building at Dodballapur for his own stay in view of the changed circumstances.

4. As stated above both the Courts below have concurrently come to the conclusion that the respondents needed the house for their own use. This is a finding of fact. I have been taken through the evidence in the case and I am convinced that the conclusions arrived at by the Courts below are correct. It is true that during the pendency of the appeal, the first respondent had been transferred from Dodballapur to Chickballapur. But the appellate Court has come to the conclusion that in spite of this transfer it is necessary for him to retain his family in Dodballapur. Hence the said transfer does not affect the merits of the case.

5. Two questions of law have been urged before me on behalf of the petitioner. It is contended that the present petition is barred both under Section 11 of the Mysore House Rent and Accommodation Control Act and also under the rule of constructive res judicata. It is further urged that the petition for eviction is not maintainable as the quit notice given by the landlords has been waived. The plea of res judicata is based on the decision of the learned Munsiff, Dodballapur in H.R.C. No. 8/49-50. As stated hereinbefore, the first respondent had applied therein asking for the eviction of the tenant on the ground that he defaulted in the payment of rents and also on the ground that the house was required for the use of his brother and mother. The decretal portion of the order in the said case is as follows:

"I consider that there is no justification to evict the tenant now he has paid alt arrears of rent (barring Rs. 38/- under dispute) the petitioner may establish his claim to the disputed portion in a proper court of law."

On an examination of the order I do not find any discussion or decision on the question of bona fide requirement of the house by the respondents. The learned Munsiff who tried the present application was of opinion that the landlord having made the claim for the possession of the house on the ground that he needed the same for the bona fide occupation of his brother and mother, the Court having not granted the prayer it must be presumed that the same was rejected. It was a matter which was directly and substantially in issue in the said case. Hence according to him the present petition is barred.

The learned District Judge differed from the conclusion of the trial Court. He held that there was no identity of parties. The second respondent was not a party in the previous petition though she was a joint owner and consequently the previous order could not affect her right. It is urged before me that this view of the learned District Judge is not correct. It is unnecessary for me to consider as to whether the learned District Judge is correct in coming to the conclusion that there is no identity of the parties in the two proceedings as I am clearly of opinion that the cause of action in the two cases is quite different. In the H.R.C. No. 8/49-50 the first respondent claimed that he wanted the house for the use of his brother and mother.

Rightly or wrongly that claim was not allowed. In the present petition the possession of the house is claimed on the ground that the respondents needed the same for their use and that in view of the changed circumstances. The necessity has arisen subsequent to the order passed in H.R.C. No. 8/49-50. The present cause of action has nothing to do with the cause of action that was urged in H.R.C. No. 8/49/50. The matter in issue in the previous case was as to whether the landlord bona fide required the house for the use of his brother and mother at the time of that application whereas in the present case the question for consideration is as to whether he bona fide requires it now for his own use. The two issues are not identical. They may be similar but not the same.

What Section 11 of the Mysore House Rent and Accommodation Control Act as well as the rule of constructive res judicata prohibits is the investigation of the same point or points of dispute. The principle behind the said rule is that a question finally decided should not be re-opened. Section 11 of the Mysore House Kent and Accommodation Control Act lays down that the Court shall summarily reject any application under Sub-section (2) or under Sub-section (3) of Section 8 which raises between the same parties or between parties under whom they or any of them claim, substantially the same issues as have been finally decided in a former proceeding under that Act. The word "issue" is used in the same sense as is used in Section 11, C. P. C. If refers to the subject-matter of the dispute.

6. It is true that there is some difference in the phraseology used in Section 11, C.P.C. and Section 11 of the Mysore House Rent and Accommodation Control Act. Section 11, C.P.C. lays down that no Court shall try any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties. In Section 11 of the Mysore House Rent and Accommodation Control Act there is no reference to the matter directly and substantially in issue but on the other hand the words used are

"the Court shall summarily reject any application.... which raises between the same parties .... substantially the same issues..."

7. It is possible to argue from this difference in the language that what was made res judicata under Section 11, C.P.C. is the matter that was substantially in issue and finally decided in the previous case but under the Mysore House Rent and Accommodation Control Act what is relevant is the "issue" and not the matter in issue. This interpretation if accepted will lead to anomalous results. Let us take into consideration the case where the landlord applies for the eviction of the tenant on the ground that he has dc-faulted in the payment of the rent. The application is rejected. Then according to the contention of the petitioner the landlord will have no further right to apply for the eviction of the tenant on the ground that he has subsequently defaulted in the payment of the rent.

Again the Landlord who had applied for the eviction of the tenant on the ground that the house needed repairs, if the application is rejected cannot apply for the eviction of the tenant even if later on, it becomes necessary to repair the house. Unless there are compelling reasons it is unreasonable Jo accept such a construction. The difference in the language employed in the two provisions though could have been avoided has not made any difference in law. They mean the same thing. In my judgment Section 11 of the Mysore House Rent and Accommodation Control Act is a statutory incorporation of the well known doctrine of res judicata. The dictionary meaning of the word "issue'' is a point in question between contending parties in action; a question of fact or law on which the parties are at variance.

The word "issue" in Section 11 of the Mysore House Rent and Accommodation Control Act means the dispute between the parties. Every issue must relate itself to a matter in dispute. It may be a question of fact or law. What is important is the identity of the matter in dispute. A dispute which arises subsequent to the earlier decision cannot be barred by res judicata by reason of the earlier decision. Hence there is no substance in the plea of res judicata raised by the petitioner.

8. The more important point urged before me is that the landlord have waived the quit notice given by them. The quit notice was served on the petitioner on 15-9-1954 terminating his tenancy as on 30-9-1954. It is admitted that subsequent to this date two payments of rents were made, once on 2-10-1954 and again on 25-11-1954. The payment on 2-10-1954 relates to the period prior to the termination of the tenancy & hence is not of any consequence. But the rent received by the landlords on 25-11-1954 is for the month of October, 1954 that is for the period subsequent to the period of tenancy. The tenant contends that the landlords having received the said rent must be deemed to have waived the quit notice.

In such a circumstance the tenant will become a tenant holding over under Section 116 of the Transfer of Properly Act or at any rate the parties have agreed to the continuance of the tenancy. Reliance is placed on Section 113 of the Transfer of Property Act and particularly on illustration (a) to the said section. Waiver is a well known idea. It means the giving up of a right. It is contractual in its content. It must be intentional and not accidental. There must be ad idem between the contracting parties. Waiver presupposes that the parties to the contract were conscious of their rights and one of the parties who is entitled to certain rights had deliberately given up the same with the consent of the other.

To waive is to forbear or to relinquish or forgo a right or a claim. This common law idea is given a statutory form under Sections 112 and 113, T. P. Act. Section 111 of the T. P. Act provides for the determination of lease; Section 111 (g) provides for forfeiture under certain circumstances but it requires the lessor to give notice in writing to the lessee of his intention to determine the lease; Section 112 provides that forfeiture under Section 111, Clause (g) is waived by acceptance of rent which has become due since the forfeiture or by distress for such rent or by any other act on the p-art of the lessor showing an intention to treat the lease as subsisting provided that the lessor is aware that the forfeiture, has been incurred and further provides also that where rent is accepted after the institution of a suit to eject the lessee on the ground of forfeiture, such acceptance is not a waiver.

From this it is clear that the Legislature stipulated that the waiver must be an intentional act. But one mode of statutory proof of this intention is the acceptance of the rent which has become due since the forfeiture. Clause (h) of Section 111 provides for the determination of the lease. But Section 113 lays down that a notice given under Section 111, Clause (h) is waived, with the express or implied consent of the person to whom it is given by any act on the part of the person giving it showing an intention to treat the lease as subsisting. From this it is seen that there could be a waiver only if both the parties, the party who has given the notice and the party who has received the same intentionally agree to waive the said notice. Illustration (a) is as follows:

"A, the lessor, gives B, the lessee, notice to quit the property leased. The notice expires. B tenders, and A accepts, rent which has become due in respect of the property since the expiration of the notice. The notice is waived."

The payment of the rent by the tenant for a period subsequent to the termination of the tenancy and acceptance of the same has been laid down as a statutory proof of the intention of both the parties to treat the lease as subsisting. Undoubtedly it is one of the modes of proof of the agreement to treat the lease as subsisting. It is a conclusive proof. The reason is obvious. Once the lease is terminated the tenant becomes a trespasser. There is no question of payment of any rent. If the tenant pays any rent as such it is clear that he intends to continue as a tenant-Conversely the landlord is not entitled to any rent for that period. Hence his receiving of any rent must be only on the basis that he is willing to treat the lease as subsisting.

Be it noted that the amount must be paid as rent and received as such. But in the present case the possession is claimed under Sub-section (3) to Section 3 of the Mysore House Rent and Accommodation Control Act. It is true that the notice given by the landlord would come within the ambit of Clause (h) to Section 111 of the T. P. Act. The notice terminates the contractual tenancy. But immediately the tenant becomes a statutory tenant as defined in Sub-section (9) of Section 2 of the Mysore House Rent and Accommodation Control Act. The tenant does not become a trespasser. He is still liable to pay the rent. Hence merely because he pays the rent there can be no inference that he intended to continue the tenancy.

Again the landlord cannot take possession merely on the basis of the termination of the tenancy. He must satisfy the Controller that he comes within Section 8 of the Mysore House Rent and Accommodation Control Act. Before he could occupy the house an order of the Controller is necessary. He is entitled to rent as such till the tenant vacates the house. Hence the receipt of the rent cannot show that he intended the tenancy to continue. The reason behind Section 113, T. P. Act is wholly inapplicable to the facts of the present case. Illustration (a) to Section 113, T. P. Act is not applicable to leases which are subject to control laws. This is also the view taken by a long line of decisions.

The point is elaborately discussed by a Division Bench of the Calcutta High Court in the case reported in Panchanan Ghose v. Haridas Banerjee, (A). This decision follows an earlier decision of the same High Court reported in Mahindra Nath De v. Man Singh, (B). It is followed by a later decision Reported in Pulin Behary Shaw v. Lila Dey, (C). The same is the view taken by the Patna High Court in the case reported in Zaffar Hussain v. Mahabir Prasad, (D). The Bombay High Court took the same view in the case reported in Baldeodas Mahavirprasad v. G. P. Sonavalla, AIR 1948 Bom 385 (E). Some support for this view can also be canvassed from the observations made in the case reported in Kai Khushroo Bezonjee Capadia v. Bai Jarbai Hirjibhoy Warden, AIR 1949 FC 124 (F). No decision which has taken a contrary view has been brought to my notice. The trial Court followed the decision reported in Y.V. Venkata Subbayya v. H. Raugaswamiah, 6 Mys LJ 45 (G).

The said decision is not applicable to the facts of the present case. It is not a case arising out of any control laws. It was clearly a case falling under Sections 106 and 116 of the T. P. Act. The decision lays down that if after the determination of the lease the landlord accepts the rent from the lessee such acceptance is prima facie proof of his intention to treat the lease as subsisting. It further lays down that if there be acceptance of rent even, after the expiry of the lease, and the termination of the tenancy by means of a quit notice the acceptance would afford stronger proof of such an intention on his part. It must be noted that the said decision also lays down that it would be open to the lessor to offer counter-proof of the want of such intention on his part. Such a presumption will not be available in the present case.

9. The Courts below have come to the conclusion that the vent was neither paid with the intention to continue the tenancy nor was the same received with such an intention. I am in agreement with those conclusions. Hence the plea of waiver is not available to the petitioner.

10. In the result this revision petition fails and is dismissed with costs.