Adapa Abbayi Petitioner (Tenant) v. Sri Reddi Pantulu Choultry And Others

1. This Revision is filed by the tenant against the orders passed in Tenancy Appeal No. 18 of 1969 on 14-4-1972 on the file of the Sub Collector, Rajahmundry.

2. The ground raised by Mr. M. Jagannadha Rao is that it is an admitted fact that the landlord has accepted the rent for F. 1374 after the rent fell due and not only that, the landlord has accepted the rent even for future years, therefore, this amounts to a waiver. I find there are conflicting decisions of this Court on this aspect of the case as to whether the acceptance of rent by the landlord under Andhra Tenancy Act, after the rent has fallen due would amount to a waiver or not. In Ramachandra Rao v. Venkata Lakshminarayana 1963 (2) An. W.R 235, it was held that the acceptance of the rent by the landlord does not amount to a waiver. But in L. Appamma v. Smt. B. Venkataratnam 1969 (2) A.P.L.J (S.N) 33, it was held that the acceptance of rent does amount to a waiver by the landlord. Of course, an appeal bearing No. 485/69 was preferred against the said judgment and it was disposed of on 27-7-1971. That appeal was allowed on the ground that the tenant was in default even on the date when the petition for eviction was filed, but not on the ground that the acceptance of rent would not tantamount to a waiver. However, there is an observation of the Bench of this Court in the appeal bearing No. 485/69 which would show that the question of waiver would arise only in a case where the rent due was accepted before the petition for eviction was filed.

3. In such circumstances, I am of the opinion that this revision petition should be referred to a Bench. The papers may be placed before. His Lordship the Chief Justice for necessary orders.

4. In pursuance of the above said order, the petition came on before the Hon'ble the Chief Justice and Lakshmaiah, J.

5. M. Jagannadha Rao and M. Krishna Mohan Rao for the Petitioner.

6. The Court made the following.

ORDER OF REFERENCE TO FULL BENCH

7. In our view, this case raises an important question for resolving which it will be necessary to reconsider a Bench Decision of this Court in Ramachandra Rao v. Venkatalakshminarayana (1963) II An. W.R 235). Post before a Full Bench on 20th September, 1973.

8. In pursuance of the above said Order, this petition finally came for orders before the Full Bench.

9. Mr. M. Jagannadha Rao, Advocate for the Petitioner.

10. Mr. P.P Surya Rao, Advocate for the 1st respondent.

11. The Court made the following.

(Judgment of the Court delivered by the Chief Justice).

12. This revision petition raises a question of law which is of for reaching importance. It arises in the following circumstances.

13. The respondent herein filed an application under section 13(a) of the Andhra Tenancy Act, hereinafter called ‘the Act’ for terminating the tenancy and eviction of the petitioner herein, the tenant. It was alleged that the petitioner had to pay rent for the fasli year 1374 on 15th January, 1965, but paid the amount in two instalments, one on 5-5-1965 and the other on 20-7-1965. Rent for the fasli year 1375 was due on 15-1-1966 but was paid on 6-3-1966. Similarly the rent for the fasli year 1376 although due on 15-1-1967, was actually paid on 24-3-1967. For the fasli year 1377 the rent was paid on 3-4-1968 although it fell due on 15-1-1968.

14. Thus even though on the date of the petition, no rent was due, the petition was based on the defaults for the four years as above inasmuch as the rents were not paid on due dates. Even though the rents were subsequently accepted by the landlord, the said defaults were treated as providing cause of action for eviction.

15. The petition was resisted by the tenant on two grounds. Firstly, it was contended that the landlord waived his right to file the application for determination of tenancy and eviction as and when he accepted the rents knowing fully well that the tenant had committed defaults. Secondly it was urged that since no amount of rent was due on the day when the petition under section 13(a) of the Act was filed, it was not maintainable under the said section as the tenant cannot be said to have failed to pay the rent.

16. The Tahsildar, Rajahmundry by his order dated 29-4-1969 held that as there were no arrears, it was not justifiable to evict the tenant. He therefore dismissed the petition.

17. The Sub Collector on appeal by the landlord held in his order dated 14-4-1972 that “acceptance of the rent by the landlord after the due date does not act as waiver for the default made by the tenant”. He relied on Ramachandra Rao v. Venkata Lakshminarayana (1) (1963) II An. W.R 235. As a result, he directed the eviction of the tenant.

18. The tenant's revision in this Court came first before Muktadar, J. He noticed that there are conflicting decisions of this court on the question as to whether the acceptance of rent by the landlord after the due date would amount to waiver or not. He therefore referred the case to a Bench.

19. The matter was then placed before a Bench. In view of the importance of the question, the Bench by its order dated 10-9-1973 referred the case to a Full Bench and that is how the matter has come before us.

20. Two questions were urged before us. The first contention was that since the landlord knowing the default each time accepted the rent after the due date he had waived his right to file a petition under section 13(a) of the Act. The second contention was that as no rent was due on the date of the petition under section 13(a) of the Act, it was not maintainable.

21. We shall take the first submission for consideration. We must read section 13(a) of the Act. It reads:

“Notwithstanding anything contained in sections 10, 11 and 12, no landlord shall be entitled to terminate the tenancy and evict his cultivating tenant during the currency of a lease except by an application made in that behalf to the Tahsildar, and unless such cultivating tenant—

(a) has failed to pay the rent due by him within a period of one month from the date stipulated in the lease deed, or in the absence of such stipulation, within a period of one month from the date on which the rent is due according to the usage of the locality, and in case the rent is payable in the form of a share in the produce, has failed to deliver the produce at the “time of harvest;”

22. If we read the said-provision analytically, it would be seen that notwithstanding anything contained in sections 10, 11 and 12 of the Act, the section directs that no landlord shall be entitled to terminate the tenancy and evict his cultivating tenant except by an application to the Tahsildar and on any one or more of the grounds mentioned in clauses (a) to (f) of that section. Thus the tenancy cannot be terminated in any manner other than by filing the application in that behalf to the Tahsildar. And no eviction can be ordered except on any one or more of the grounds mentioned in the said section.

23. The ordinary mode of terminating the tenancy under the general law is indicated in section 111 of the Transfer of Property Act. According to that section, one of the modes to determine the lease of immovable property ts by forfeiture. When the tenant commits a breach of any one of the things mentioned therein and the lease provides for the right of re-entry on the happening of any such event, the landlord can by a notice in writing determine the lease.

24. Such forfeiture 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 part of the lessor showing an intention to treat the lease as subsisting. That is provided by section 112 of the Transfer of Property Act.

25. section 114 of the Transfer of Property Act then provides for release against forfeiture for non-payment of rent.

26. What is plain is that under the Transfer of Property Act, the principle of waiver is statutorily recognised; so also the relief against forfeiture for non-payment of rent.

27. Do these principles embodied in sections 112 and 114 of the Transfer of Property Act in terms or otherwise apply to cases of termination of tenancy under section 13 of the Act?

28. Answer to this question depends upon the correct appreciation of the implications of section 17 of the Act. That section reads as under:

“The provisions of this Act shall have effect notwithstanding anything inconsistent therewith contained in any pre-existing law custom, usage, agreement, or decree or order of a Court”.

29. A careful reading of this section would disclose that the Act has an overriding effect on anything inconsistent therewith contained in any pre-existing law, the Transfer of Property Act being one of such pre-existing law. What follows therefore is that the provisions of Chapter V of the Transfer of Property Act would have no effect if the provisions of that Chapter or any one of them is inconsistent with the provisions of anyone of them of the Act. It is not necessary for our purpose to consider whether section 114 of the Transfer of Property Act in terms or otherwise applies to the proceedings under section 13 of the Act.

30. It is, however, essential to consider whether section 112 of the Transfer of Property Act or the analogous principles underlying the section apply to the case of a landlord who knowingly receives the rent after it had become due.

31. The very opening words of section 112 of the Transfer of Property Act “A forfeiture under section 111, clause (g) is waived” indicate that this section is contextually connected with section 111(g) If section 111(g) cannot in terms apply or is inconsistent with section 13 of the Act, then it must follow that section 112 also would not in terms apply. We have seen the difference between section 111(g) of Transfer of Property Act and section 13 of the Act. While under section 111(g) of the Transfer of Property Act, the landlord can determine the tenancy by a notice, such a tenancy under section 13 of the Act can be determined only by filing an application to the Tahsildar. Thus the mode of determining the tenancy differs materially and that makes the important distinction. When there is thus no right to forfeiture of tenancy by issue of notice available to a landlord under the Act, it is not possible to apply in terms section 112 of the Transfer of Property Act. What is plain is that section 111(g) and section 112 being materially different from section 13 of the Act, they are not in terms applicable to a case falling under the Act. It is therefore clear that even if section 112 is not taken to be inconsistent, even then it would not in terms apply.

32. The next question to be considered is whether the equitable principle underlying section 112 of the Transfer of Property Act applies to a case of landlord seeking to evict a tenant under section 13 of the Act.

33. Now, the principles of waiver are not confined to the Transfer of Property Act or the Contract Act. It applies to other cases also. Waiver is the abandonment of a right and is either express or implied from conduct. A person who is entitled to the benefit of a stipulation in a contract or of a statutory provision can waive it, and allow the contract or transaction to proceed as though this stipulation or provision did not exist. Express waiver presents tittle difficulty. Although there is no express waiver in a case, the person entitled to the right may so conduct himself that it becomes inequitable to enforce it and this is sometimes called implied waiver.

34. It is equally plain that if the object of a statute is not one of general policy, or the thing which is being done will benefit only a particular person or class of persons, then the conditions prescribed by the statute are not considered as being indispensable. This rule is expressed by the maxim of law “Cuilibet licet renuntiare juri pro se introducto”. It is thus evident that a party who has a benefit given to him by statute may waive it if he thinks fit.

35. Darly, C.J once said:

“It is to my mind a clear principle of equity and I have no doubt there are abundant authorities on the principle, that equity will interfere to prevent the machinery of an Act of Parliament being used by a person to defeat equities which he has himself raised and to get rid of a waiver created by his own acts”.

36. Maxwell on the Interpretation of Statutes at page 328 says:

“Everyone has a right to waive and to agree to waive the advantage of a law made solely for the benefit and protection of the individual in his private capacity, which may be dispensed with without infringing any public right or public policy.”

37. It is true that there can be no waiver of a statutory requirement which is imposed in the public interest. A right to evict a tenant under the Act in certain circumstances is conferred on individual landlords. Such a right is not imposed in the public interest but the right is hedged round with certain restrictions in favour of tenants and that is evidently done in the public interest. Thus once a landlord, with full knowledge of the relevant facts, waives the benefit of a law, he cannot recall the consentient after it has been acted upon.

38. The cases on waiver show that the demand and acceptance of the rent has a very different effect according to how the question is raised. If it is sought to say there is new tenancy by acceptance of rent; for instance, after notice to quit has expired, the question always is as Lord Masfield said:

“Quo animo the rent was received and what the real intention of both parties was”.

39. See also Clarke v. Grant (2) (1950) I K.B 104.

40. But, if it is sought to say that an existing lease continues in existence by a waiver of forfeiture, then the intention of the parties does not matter. It is sufficient if there is unequivocal act done by the landlord which recognises the existence of the lease after having knowledge of ground of forfeiture.

41. Parker, J. in Mathews v. Small Wood (3) (1910) I Ch. 777 at page 786 said.

“It is also, I think, reasonably clear upon the cases that whether the act, coupled with the knowledge, constitutes a waiver is a question which the law decides, and therefore it is not open to a lessor who has the knowledge of the breach to say I will treat the tenancy as existing, and I will receive the rent or I will take advantage of my power as landlord to destrain; but I tell you that all I shall do will be without prejudice to my right to re-enter which I intend to reserve. That is a position which he is not entitled to take up. If, knowing of the breach, he does distrain, or does receive the rent, then by law he waives the breach, and nothing which he can say by way of protest against the law will avail him anything”.

42. Megaw, J. in Windmill Investments (London) Ltd. v. Milano Restaurant Ltd. (4) (1962) II Q.B 373 at 376 said:

“It is a question of fact whether the money was tendered as, and accepted as, rent………… Once it is decided that the money was tendered and accepted as rent, the question of its consequences as a waiver is a matter of law.”

43. In Segal Securities Ltd. v. Thoseby …(5) (1963) I Q.B 887, Sachs, J. observed at page 898:

“It is thus a matter of law that once rent is accepted a waiver results. The question of quo animo, it is accepted in forfeiture cases, is irrelevant in relation to such acceptance”.

44. Lord Denning, M.R, approving these cases in Central Estates v. Woolgar (6) (1972) I. W.L.R 1048 at 1052 said:

“So we have simply to ask: Was this rent demanded and accepted by the landlords agents with knowledge of the breach? It does not matter that they did not intend to waive. The very fact that they accepted the rent with the knowledge constitutes the waiver”.

45. The law in India in regard to the waiver is the same. See the cases collected at page 2066 of Volume III of Transfer of Property Act by D.V Chitaley and S. Appu Rao.

46. We think we must refer to Lachoo Mal v. Radhye Shyam (7) (1971) 1 SCC 619 : A.I.R 1971 Supreme Court 2213 which supports the view which we have so far expressed. Grover, J., who spoke for the Court, said:

“The general principle is that every one has a right to waive and to agree to waive the advantage of a law or rule made solely for the benefit and protection of the individual in his private capacity which may be dispensed with without infringing any public right or public policy. Thus the maxim which sanctions the non-observance of the statutory provision is cuilibet licet renuntiare juri pro se introducto.”

47. His Lordship further said:

“In our judgment S. 1-A was meant for the benefit of owners of buildings which were under erection or were constructed after January 1, 1951. If a particular owner did not wish to avail of the benefit of that section there was no bar created by it in the way of his waiving or giving up or abandoning the advantage or the benefit contemplated by the section. No question of policy, much less public policy, was involved and such a benefit or advantage could always be waived”.

48. Is there anything then in section 13 of the Act to hold that the principle of waiver has been abrogated and not made applicable to the cases coming under the Act? That there are no express words to exclude the operation of the principle of waiver in such cases is not disputed. The contention, however, was that section is mandatory, the principle of waiver ought to be considered as excluded.

49. Now there is no universal rule by which directory provisions may, under all circumstances, be distinguished from these which are mandatory. The intention of the Legislature, however, should be controlling and no formalistic rule of grammar or word form should stand in the way of carrying out the legislative intent. The golden rule is that the statute should be construed according to its subject-matter and the purposes for which it was enacted. It thus becomes the duty of the Courts of Justice to try to get at the real intention of the Legislature by carefully attending to the whole scope of the statute to be construed. In each case therefore one must look to the subject-matter, consider the importance of the provisions, and the relation of that provision to the general object intended to be secured by the Act, and upon a review of the case in that aspect and decide whether the enactment is what is called imperative or directory.

50. Broadly speaking therefore, when a statute is passed for the purpose of enabling something to be done, and prescribes the way in which it is to be done, it may be either what is called an absolute enactment, or a directory enactment, the difference being, an absolute enactment must be obeyed or fulfilled exactly, but is sufficient if a directory enactment be obeyed or fulfilled substantially. The prescribed formalities which are essential to the validity of the thing when done are called imperative or absolute; but those which are not essential, and may be disregarded without invalidating the thing to be done are called directory.

51. On occasions some Courts have said that language affirmative in form indicates that the statute is directory only, while negative language implies a mandatory provision. But that is not an inflexible or rigid rule.

52. It is in this background that we have to examine section 13 of the Act. It is drafted in the negative form. Therefore, to start with it can be implied that it is a mandatory provision. But mandatory in what sense?

53. A careful reading of the main provision would unmistakably point out that it is imperative in the sense that no landlord can terminate the tenancy and evict his tenant except by an application made to the Tahsildar. The object of the Act is to control the evictions of the tenants on certain grounds only. The subject-matter of the section is clear and very important. One can therefore say that the provision is obligatory and prohibits the eviction of tenants except on certain grounds. The provision thus prescribes the conditions on which eviction can be ordered and denotes the mode in which the tenancy can be terminated and eviction sought.

54. We, however, fail to see how from this mandatory provision compelling the landlords to adopt a certain mode for eviction which can be had only on certain grounds directly or indirectly makes the principle of waiver inapplicable to landlords for whose benefits section 13 is made. No doubt it protects the tenant, nevertheless confers a qualified right on the landlords which can be exercised only in a particular manner and when certain conditions are satisfied. There is nothing in the section which takes away the right of the landlord which he has outside section 13. The section, therefore, has to be looked at from two angles: (1) the right of the landlord to file an application for determining the tenancy and his eviction on one or more of the denominated grounds; (2) the equitable defence which every tenant has to plead waiver of the said right of the landlord by accepting the rent after knowing the default committed by the tenant as per the section. There are no words in the section to take away or in any manner curtail or abridge either the landlord's right to waive and decline to take advantage available to him under section 13 or deny the equitable defence which in any case is always available to the tenant to plead waiver.

55. What follows therefore is that although the section is mandatory in the sense that the landlord cannot determine the tenancy or evict the tenant except firstly by filing application to the Tahsildar and secondly only on the basis of one or more of the grounds enumerated in the section, this mandatory character of the provision does not take away from the landlord the right to receive the rent after the default according to the section is committed and thus continue the tenancy.

56. He is not compelled on every default to determine the tenancy and seek eviction according to section 13. Even after filing an application under section 13, nothing prevents him from withdrawing the application or abandoning his claim and thus continue the tenancy. Likewise, the tenant's right to plead waiver is not taken away by any provision of the Act.

57. It was also contended that section 13 must be construed strictly and since the landlord can seek determination of tenancy and eviction if the tenant has failed to pay the rent due by him within one month from the stipulated date, it must be inferred that no question of waiver can be said to arise.

58. We are not impressed with this argument. Whether the section should be interpreted literally or liberally, no more remains a problem. The distinction between a strict and liberal construction has almost disappeared with regard to all classes of statutes, so that all statutes, whether penal or not, are now construed by substantially the same rules.

59. In Re Monolithic Building Co. Ltd. (8) (1950) I Ch. 643 at 665, Lord Cozens-Hardy, M.R quoted with approval what Mellish, L.J said in Edwards v. Edwards (9), (1876) II Ch. Division 291 at 297.

“All modern Acts are framed with regard to equitable as well as legal principles.”

“‘A hundred years ago’ said the Court in Lyons case, statutes were required to be perfectly and precise resort was not had to a reasonable construction of the Act, and thereby criminals were often allowed to escape. This is not the present mode of construing Acts of Parliament. They are construed now with reference to the meaning and real intention of the legislature”.

(See Craies on Statute Law, Page 531).

60. Therefore, one must accept to the full that in cases of real doubt the Courts are more ready today than they once were to modify a strictly literal reading of a statute so as to make it efficacious and sensible in its operation.

61. It is now firmly settled that the meaning of the statute should be derived initially from the occasion for its enactment, and after that from its development over time, rather than from the abstract terms in which it may be phrased.

62. It cannot be forgotten that the clash of values and interests, the conflict between different judicial approaches, is often seen no less marked in the interpretation of statutes than it is in the common law. The controversy between the ‘literal’ and ‘liberal’ theories of statutory interpretation may be said to correspond closely to that between the adherence of a static and a dynamic interpretation. The former regard the interpretation of a statute as essentially an exercise in grammar, based on a strict distinction between the legislative and the interpretative function. The latter regard it as a process of purposeful collaboration based on an understanding of the legislative purpose, for which the Heydon's case (1584) or Flouden's celebrated note on Eastern v. Stude can still serve as a guide.

“And in order to form a right judgment when the letter of a statute is restrained, and when enlarged by equity it is a good way, when you peruse a statute, to suppose that the law maker is present, and that you have asked him the question you want to know touching the equity; then you must give yourself such an answer as you imagine he would have done, if he had been present……………… And if the law maker would have followed the equity, notwithstanding the words of the law…………… you may safely do the like……………”

63. It must also be remembered that in construing the provisions of a welfare legislation, the Courts should adopt a beneficient rule of construction. So, a Court dealing with a social legislation must give it a construction which helps the legislature to satisfy the social need to provide for which it passed the enactment. For that purpose the Court may consider the scheme of the Act as also the nature and scope of the intended relief and give full effect to the measure to the extent that the language is capable of extending the remedy and relief to the mischief which the legislature had in mind.

64. Bearing in mind these principles, we must find out for what purpose the Act was enacted. No one can doubt that the accelerated social changes in economic field demanded security of tenants on agricultural lands where the landlords taking advantage of their dominative economic position were taking advantage and exploiting the cultivating tenants. The Act therefore while protecting the title of the landlord over the land leased out extends considerable protection to the tenants. The Act not only directs fixation of fair rent but ensures the tenancy for a period not less than six years and assures the tenants that they will not be evicted except by adopting a particular mode and on certain grounds. The intention clearly is to make a special law as it was found that the general law relating to the relationship of landlord and tenant has proved to be inadequate and unsatisfactory and heavily loaded on the side of the landlords only. The intention was not to take away what little rights the tenants had but to provide something more and in addition to the existing rights with a view to guarantee security to the tenants.

65. It is seen that under section 112 of the Transfer of Property Act, if made applicable to agricultural lands, the landlord could waive the right of forfeiture and consequently the tenant can plead in defence waiver or estoppel. The position in equity even without section 112 was the same.

66. In Appayya Shetti v. Mahammed Bearl (10) I.L.R 39 Madras 834, Seshagiri Ayyar, J. said:

“The rule to be deduced from an examination of legislative provisions and authorities bearing on the subject is that prima facie the clause for re-entry for non-payment of rent is intended only as security for the payment of the rent. Therefore Courts should relieve against this clause. If the arrears and expenses are paid and if the parties can be in status quo ante.”

67. His Lordship further observed:

“In no country is there a greater need for the application of this beneficient statement of the law than in India, and if it is true that we are administering both equity and law in our Courts, there must be an endeavour on our part to soften the rigour of the land and to mete out substantial justice unless our hands are tied by the legislature.”

68. In Krishna Shetti v. Gilbert Pinto (11) I.L.R 42 Madras 654 F.B, a full Bench of the Madras High Court held:

“that by reason of the prohibition in section 117 of the Transfer of Property Act, section 111(g) of the Act did not in terms apply but that the principles of the Courts of Enquiry embodied in section 111(g) applied to the case”.

69. In Nanjappa Goundan v. Rangaswami Goundan (12) (1940) I M.L.J 200, Patanjali Sastri, J. (as he then was) said:

“that though the Transfer of Property Act cannot in terms apply to agricultural leases, its principle was applicable to the case as rules of justice, equity and good conscience.”

70. The principle enunciated in these decisions relating to the application of the equitable principles underlying section 111(g) and Section 114 would also apply with equal force to the principle underlying section 112. Transfer of Property Act. The equitable principle embodied in section 112 would govern a case falling under section 13(a) of the Act.

71. If section 112 of the Transfer of Property Act in terms does not apply because of the change in the situation to the cases coming under the Act, we do not see any reason as to why the legislature would have intended to take away the right of landlord to accept the rent even after the default and continue the tenancy or in any case deprive the tenant of one of his most valuable equitable defences to plead waiver by acceptance of rent on the part of the landlord. It may be that section 13 grants additional time of one month to the tenants for payment of rent even after the stipulated period for such payment is over. We, however, fail to see how from that aspect it can validly be urged that the landlord's right to waive is taken away or the wording of the section precludes any question of waiver being raised. Whether it is the stipulated time or one month thereafter is stipulated for the payment of rent. It does not, in our judgment, take away from the tenant his right to plead waiver. Nor those words compel the landlord not to continue the tenancy by accepting the rent after the breach. In fact these rights or action or defence or in other words to file an application under section 13 of the Act or plead equitable defence of waiver fall outside section 13 and are independent of it. Unless there is anything in section 13 or in any other provision of the Act which disentitles the parties or anyone of them to plead waiver or estoppel, it will not be proper to construe section 13 so as to affect these rights of the parties. Any such interpretation would be quite contrary to socially beneficial legislation and hit at the very basis of providing larger protection to the tenants. It will amount to taking away from him a right of equitable defence which he always had even under the common law. We are not inclined to attribute any such intention to the legislature. The language of section 13 is quite plain and does not admit of any construction which would deprive the landlord of his right to continue the tenancy even if he so desires and take away the equitable defence of waiver which the tenant can successfully set up against a landlord who in spite of the fact that no rent is due on the date of the application filed an application for eviction. That would be unjust and unfair. The Court would not construe the section to produce such results.

72. In this connection, it is we think, plain that where in any Act, such as here, which merely regulates the rights and obligations of private parties are intended for the sole benefit of the other party, it would be inconsistent with that purpose if the party intended to be benefited were not entitled to dispense with the other party's compliance in circumstances where it was in his own interest to do so. Upon the purposive approach to statutory construction this is the reason why in a statute of this character a requirement imposed for the benefit or protection of another party or the other is construed as subject to the implied exception that it can be ‘waived’ by the party for whose benefit it is imposed even though the statute states this requirement, as in clause (a) of section 13, in unqualified and unequivocal words.

73. In this context, ‘waived’ means that the party has chosen not to rely upon the non-compliance of the other party with the requirement; or has disentitled himself from relying upon it either by agreeing with the other party not to do so or because he has so conducted himself that it would not be fair to allow him to rely upon the non-compliance.

74. What follows therefore is that although the provisions of the Transfer of Property Act in terms may not apply but the equitable principles underlying them apply to cases coming under the Act. The contention that the Act is a special enactment and therefore the said principles would have no relevance is unacceptable. If the provisions of special enactment expressly or by necessary implication abrogate the said principles, that is another matter altogether. But there are no such provisions in the Act, far less contained in section 13 or 17 of the Act. The learned Advocate for the landlord could not show us any provision which would indicate that the principle of waiver on acceptance of the rent after the grace period has not been made applicable. Merely because there is no provision parallel to section 112. Transfer of Property Act or the Act makes no reference to waiver, we fail to see how the equitable principle can be said to have become inapplicable to cases under the special Act. In fact this artificial distinction in applying the principle of waiver between general law and special law is not based on any cogent reasons. As stated earlier, if the special law excludes the application, then and in that case alone the said principle would not apply because the law would prevail over equities. In the absence of any such provision, the equitable doctrine would apply even to special law. It is true that if the tenant wants to take advantage of protection provided to him by the Act, he must comply with the provisions of the Act. If he fails to pay the rent even within the grace period allowed, he becomes a defaulter and is liable to be evicted. It is, however, beyond our comprehension as to how from the obligation of the tenant it can be inferred that the landlord cannot waive his right to file a petition for eviction under section 13 of the Act or that the tenant's right to plead equitable defence of waiver is in any manner affected.

75. What follows therefore is that whether section 13 of the Act is mandatory or not or whether it should be construed strictly or liberally and even if the provisions of chapter V of the Transfer of Property Act in terms may not apply, since there are no indications contra anywhere in the Act, the equitable principle of waiver would apply to the cases arising under the Act. There is no general policy in the matter of landlords asking for eviction under section 13. It is evident that a landlord who has a benefit given to him under section 13 of the Act may waive it if he thinks fit if he receives the rent with knowledge of breach, the legal consequences fallow that he has waived his right to take action under section 13 and the equitable defence of waiver would be available to the tenant in such cases.

76. The second contention was that when on the date of filing the petition, the tenant was not in arrears, then he cannot file a petition under section 13 of the Act. It was, however, contended by the Advocate for the landlord that the words “has failed to pay the rent due by him within a period of one month from the date stipulated in the lease” provide a cause of action to the landlord and therefore even if no rent was due on the date of the petition, he can initiate the action. We find on justification for this contention of the landlord.

77. The words “has failed to pay” clearly denote that the tenant must have continued to have failed to pay rent. In other words, there must be a subsisting liability to pay the rent on the date of the petition. The words are not “had failed to pay” which may have indicated that even if he had failed to pay the rent due but has paid it subsequently, the cause of action once arisen can be taken advantage of by the landlord. It will make a mockery of section 13 if the landlords are permitted to receive the rent even after the breach and still protect their right of action against the tenant. The absurdity of such a conclusion becomes more patent when, as we have held, the principle of waiver applies to such a case. The landlord cannot waive his right of action and at the same time institute the action on the ground that there was once a default which had given him a right to sue.

78. We are fully fortified in our view on both the points by a decision of Supreme Court in V.V Kulkarni v. M.R Nagane (13) A.I.R 1968 Supreme Court 461. Shelat, J., who spoke for the Court, after observing that section 25(1) of the Bombay Tenancy and Agricultural Lands Act presupposes that there are arrears at the date of the application which the Mamlatdar is directed to pay and in regard to sub-section (2) of section 25 presupposes that the tenant has made defaults for more than two years and that the tenant was in arrears at the date of the application which the Mamlatdar cannot order the tenant to pay up, the learned Judge observed:

“If this was not the correct construction of sub-section (2) and if the appellant's construction were to be accepted it would lead to a very astonishing result, viz., that even where the tenant has paid up all the arrears and the landlord has accepted them, he would still have the right to evict the tenant, though his reason for terminating the tenancy and his cause of action for eviction has disappeared by his acceptance of the arrears due to him. The legislature could never have intended such a result which also would be contrary to all principles governing the relationship between landlords and tenants……………. The Act therefore does not rule out the payment by the tenant and acceptance by the landlord of arrears of rent before a suit for eviction is instituted resulting in waiver by the landlord of the termination of tenancy by him.”

79. Dealing with the earlier decision of the Supreme Court reported in Raja Ram Mahadev Paranjype v. Aba Maruti Mali (14) A.I.R 1962 Supreme Court 753, the learned Judge said:

“It will, however, be noticed that this Court did not hold that even where there are no arrears at the date of the application for ejectment and the landlord has prior thereto received and accepted the arrears which entitled him to terminate the tenancy, he would still have the right to obtain eviction against such a tenant. A careful perusal of that decision shows that it rested on the footing that the tenant had committed defaults for more than two years and there were arrears of rent when the landlord's application for eviction was filed”.

80. In Ranjit v. Mohitosh (15) (1969) 1 SCC 699 : A.I.R 1969 Supreme Court 1187, Hidayatullah, C.J who spoke for the Court, said:

“In Ganga Dutt Murarka v. Kartik Chandra Das (16) A.I.R 1961 Supreme Court 1067 and in Anand Nivas Private Ltd. v. Anandji Kalyanji's Pedhi (17) A.I.R 1965 Supreme Court 414 (particularly the first at page 1069). It was held in connection with a statutory tenancy that a landlord accepting rent does not assent to a new contractual tenancy but continues the old tenancy”

81. Thereby it is implied that the principle of waiver would apply even to a statutory tenancy.

82. Our learned brother K. Ramachandra Rao, J. rightly held in W.P 1499/67 dated 25-4-1969 that equitable principles of waiver apply to the cases coming under section 13(a) of the Act.

83. Our learned brother Chinnappa Repdy, J. also, took a similar view in W.P No. 2933/67 dated 30-7-1969, short-noted in 1969 A.P.L.J (Short Notes) 33. We think that the learned Judge was right in holding that section 13, which is a piece of social welfare legislation, should not be construed strictly. He rightly said that there is nothing in section 13 to indicate that the equitable principles of waiver are excluded.

84. In C. Swamy v. Suryanarayana (18) (1970) II An. W.R 173 a Bench of this Court in a way recognised that the principle of waiver would apply to a case under section 13. Their Lordships said:

“The right of the landlord is not taken away merely because by the date of the filing of the petition the rent was paid by the tenant, unless the conduct of the landlord amounted to waiver.

85. Let us then consider the other decisions of this Court striking a discordant note. The first decision to be considered is Kotaiah v. Kotamma (19) (1959) II An. W.R 463. In that case the contention was that the provision calling upon the applicant to make the deposit is only directory and not mandatory since non-compliance is not made penal. Without, however, holding that the section is mandatory, the learned Judges observed:

“The payment of rent within the stipulated time is a contractual obligation. A default in that behalf incurs the consequences mentioned in Section 13. Surely failure to pay rent in time is a default within the contemplation of Section 13.”

86. It was further held that notwithstanding the eviction of the tenant on the ground that he has failed to pay the contractual rent during the pendency of a petition to fix fair rent, the proceedings of fair rent can be continued. We are unable to understand how this decision can be said to be contrary to what we have said above. It is not an authority for or against the proposition which we have considered. The ratio of this case is limited to what we have said above.

87. The next case is Veerabhadrayya v. Tahsildar (20). 1960 A.L.T 227.

That was also a case where the question for consideration was whether during the pendency of the application for the fixation of the fair rent, the contractual rent ought to be paid. “It is only while answering that question, the learned single Judge made the following observations:

“While conferring certain rights on the tenants, they, to large extent, abridge the rights of the landlord. In such a case rights and liabilities of the landlords and tenants alike must be strictly construed.”

88. We have said enough about the principles of construction. This case, however, cannot be said to be an authority either for or against the two points which we have considered and answered. The learned Judge was unconcerned with either of them.

89. In Venkataraju v. Pothuraju (21), (1961) I An. W.R 381 Seshachalapati, J. held:

“That those provisions (sections 13 and 17) are mandatory and should be complied with in terms has recently been held by a Bench of this Court in Kotaiah v. Kotamma (19) (1959) 2. An. W.R 463 and any infraction of the mandatory obligation of a tenant to pay the rent within one month from the date stipulated in the lease deed should entail the necessary consequence of eviction……… In view of the fact that the provisions of the section (Section 13(a) are absolute and mandatory, the payment of rent and arrears pleaded by the tenants is not in confirmity with the provisions of that Section……… The adjustment in this case, of rents from out of the proceeds of the sugarcane can at best be payment of rent at irregular intervals. Such a payment could not relieve the tenant of the peremptory obligation to comply with the terms of Section 13(a) of the Act.”

90. No arguments relating to the application of principles of waiver was advanced or considered. If the implication of judgment is that in spite of the landlord agreeing to receive rent by irregular payment, but under an arrangement entered into, the principles of waiver would not apply, then we are bound to say that we disagree with that view. We have already discussed about the mandatory nature of Section 13 and its scope and effect.

91. We then consider Parasuramulu v. Suryanarayanamurthy (22). (1961) II An. W.R 312. A learned single Judge considered the argument that the landlord accepted the rent even after the expiry of the period and consequently under the general law that person cannot be allowed to approbate and reprobate. Once the landlord accepted the amount, he is deemed to have condoned the default, and as such estopped from raising the contention that the petitioner is at default. Following Jetha Bhulchand v. F.C Grace (23) A.I.R 1923 Calcutta 227 and Kanto M. Mullick v. Jyotish Ch. Mukherjee (24), A.I.R 1949 Calcutta 571, the learned Judge held that there is sufficient indication in the Act itself which will show that the provisions of any existing law are not applicable to the conditions prescribed for eviction in Section 13. Acceptance of rent even after the grace period has expired, therefore, can be of no avail to the tenant and it will not be open to him to say that the landlord is estopped because he has accepted rent. He further said that the control order itself makes no reference to any waiver, as is to be found in section 112 of the Transfer of Property Act in respect of acceptance of rent subsequently. It is clear that the question of waiver does not arise. The tenant must at all times comply with the order and must at all times not fall into arrears with regard to his rent. If he does and forfeiture is once incurred, subsequent acceptance of rent by the landlord does not act as waiver so as to entitle the tenant to the protection of the Rent Control Order.

92. We have previously considered each of the said reasonings employed by the learned judge, and for the reasons which we have given and in spite of profound respect for the learned Judge, we find ourselves unable to share the view. No argument seems to have been advanced on the basic principles of waiver and the equitable considerations arising therefrom. It was not contended that although section 112, Transfer of Property Act may not apply, yet the conduct of the landlord in accepting the rent after breach can be governed by the equitable doctrine of waiver.

93. That apart we think the two Calcutta decisions on which reliance was placed by the leared Judge can easily be distinguished on the ground that the Act considered by the Calcutta High Court was not in pari materia with the provisions of the Act under His Lordship's consideration. It should be particularly noted that the Calcutta view was exclusively based on sub-clause (4) of clause 9 of Calcutta House Rent Control Order. It reads:

“No tenant shall be entitled to the benefit of this paragraph in respect of any house, unless he pays the rent due by him in respect of such house to the full extent allowable by the Order by the 15th day of the month next following that for which the rent is payable.”

94. It is upon this provision of law that it was held that the principle of waiver was excluded from the operation of the Order. We have noticed that there is no such provision in the Act. Section 13 is far from clause 9(4) of the Calcutta Order.

95. We then go to Ramachandra Rao v. Venkata Lakshminarayana (1). (1963 II An. W.R 235). The contention in that case was that since the landlord received the rent for the subsequent year 1959-1960 without any protest, he must be deemed to have waived his right to get the tenant evicted. The question that arose for determination was whether it was permissible to apply an equitable rule of construction having regard to the hardship which was felt and to import into the provisions of Section 13 the qualifying words ‘failed to pay’ as ‘wilfully failed to pay’ and secondly, whether the mere acceptance of the rent for the year 1959-1960 without protest amounts to waiver. The learned Judges said:

“As has been repeatedly observed that where the rights are being abridged by legislation the Legislature is accredited with an anxiety to circumscribe the limits within which those rights are restricted, hence in construing such statutes the Courts having cognizance of the matter would place a strict interpretation on the provisions which are declared to be mandatory.”

96. We do not desire to say anything more than what we have already said about the strict construction of the mandatory character of section 13 of the Act.

97. It was further observed:

“The Legislature took into consideration that the mere default of payment within the stipulated period would not entitle the landlord to terminate the lease or evict the tenant but further gave the tenant one more month's time as a period of grace within which the tenant could pay the amount. When it came to specifying the ground as in Section 13(e) the Legislature used the word ‘Wilfully’, as it is quite possible in certain cases where there is conflict between two persons setting up title, the tenant may want to protect himself by saying that he will pay the rent to such of those persons as may establish their title, which might be considered to be a denial of the title of the person from whom he has taken the lease, but at the same time that may not be a wilful denial of title. If the Legislature intended to use that word or any other word, it could have used it in relation to grounds specified in Section 13(a). We cannot, therefore, read ‘failed to pay’ occurring in Section 13(a) as ‘wilfully failed to pay’ or as ‘deliberately failed to pay’.”

98. Even after a careful reading of the Judgment, we cannot find that their Lordships have considered at any stage the question as to whether the equitable principles of the waiver would apply to cases under section 13. Nor the learned Judges considered the question as to whether the tenant must be in arrears on the date of the application. This decision, therefore, cannot be considered as an authority either for or against the contentions which have been raised and have been answered by us. It is, however, quite relevant to note that in that case the finding was that not only the payment was not made within the period of one month from the stipulated date but the tenant paid Rs. 20 less. He was thus in arrears of rent even on the date of application.

99. With great respect to the learned Judges, we find ourselves unable to share the view that the payment by itself cannot be construed as a waiver entitling the tenant to continue his possession. We have said already that if the landlord knowing the breach accepted the rent subsequent to the breach, in law he would be deemed to have waived his right of action.

100. At this stage we must say that Subba Rao v. Sundaramma (25) (1959) II An. W.R 135 referred to in the said Judgment was, in our view, rightly decided.

101. The last case to which we must refer is Venugopala Swamy Temple v. Anjaneyulu (26). A.I.R 1969 Andhra Pradesh 18. Kumarayya, J. (as he then was) following the earlier decisions referred to above said:—

“In that event, considerations of hardship or expediency or any other equitable consideration will not at all stand in his way. Nor can the right conferred on him under the specific provisions of Sec. 13 in any way be whittled down or adversely affected by the application of any principles of general law. Provision of Sec. 13, it may be noted, is mandatory, and has to be obeyed in full. Of course it must be strictly construed and rights granted thereunder will be fully enforced.”

102. The comments which we have made in regard to earlier decisions following which this decision has been given would apply equally to this decision also. For the reasons we have already given, with due respect to the learned Judge, we cannot persuade overselves to agree with this view.

103. And now we come closer to the problems of the present case. These problems of course have to be resolved in the light of what we have stated in regard to the position of law as we comprehend it to be.

104. The Tahsildar found that the rents were accepted by the landlord subsequent to the default and that there were no arrears due from the tenant on the day when the eviction petition was filed by the landlord. We are satisfied that although the case set up by the tenant has not been fully established, even then the landlord accepted the rent for all the four years admittedly subsequent to the grace period within which the rent ought to have been paid under section 13 of the Act. The landlord knew well that the tenant has committed a default and has failed to pay the rent within the prescribed time. Even then he accepted the rent and continued the tenant in possession on the same terms and conditions. The old tenancy thus, as a result of the receipt of rent, continued. The legal consequence of so receiving the rent for all the four years and particularly for the last year is that the landlord must be deemed to have waived and in fact waived his right to determine the tenancy and evict the tenant by filing the application to the Tahsildar under Section 13(a) of the Act. Since admittedly no arrears were due to the landlord on the day when he filed the application. It was not maintainable. The Tahsildar, in our view was right in his conclusion that it would not be just to evict the tenant. We do not think the Sub Collector was right in disagreeing with that view and allowing the appeal.

105. We would accordingly allow the revision petition and set aside the order of the Sub Collector, Rajahmundry and agreeing with the conclusion of the Tahsildar dismiss the petition of the landlord filed under Section 13(a) of the Act. The tenant will get his costs throughout.