Sudhir Narain, J.:— The petitioner seeks writ of certiorari quashing the order dated 8.2.1994 passed by Judge Small Causes Court, Saharanpur, respondent No. 2 decreeing the suit of the plaintiff-respondent and judgment dated 10.4-1997 passed by respondent No. 1 dismissing the revision against the aforesaid order.
2. The petitioner was tenant of Shop No. 47 situate in Qasba Deoband, district Saharanpur on monthly rent of Rs. 30/- and respondent No. 3 is landlord. Respondent No. 3 filed S.C.C Suit No. 12 of 1984 on 16th August, 1984 in the Court of Judge Small Causes Court, Saharanpur on the allegation that the petitioner failed to pay arrears of rent since 1st July, 1982. He had sent composite notice on 20th March, 1984 demanding arrears of rent and terminating the tenancy. The petitioner did not comply with the notice. It was further stated that the shop in question was constructed in the year 1978 but it was assessed for the first time in the year 1982 and the provisions of U.P Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 (hereinafter referred to as the Act) were not applicable. The petitioner filed written statement. It was stated that he did not receive the notice alleged to have been sent by the landlord. He was tenant for the last 7 years and the provisions of the Act were applicable. It was denied that he was in arrears of rent since 1st July, 1982. He had paid rent by various money orders for the period which covered upto August, 1984.
3. The Judge Small Causes Court held that the shop was constructed in the year 1978 but it was assessed for the first time in the year 1982. The provisions of the Act were not applicable. The petitioner was served with a notice. The petitioner had paid rent upto the period May, 1983. The suit was decreed for recovery of arrears of rent, ejectment and damages for use in occupation. The petitioner filed revision against this judgment. Respondent No. 1 has dismissed the revision by the impugned order dated 18.4.1997 These judgments have been challenged in the present writ petition.
4. Sri L.N Pandey, learned counsel for the petitioner, has not assailed the finding recorded by the court below that the provisions of U.P Act No. XIII of 1972 are not applicable. Learned counsel for the petitioner urged that after the notice was sent by the respondent No. 3 on 20th March, 1984 he had accepted Rs. 90/- as rent sent by the petitioner in June, 1984. The amount having been accepted after the notice was sent by respondent No. 3, the said notice shall be treated as waived. He has placed reliance upon the decision Ram Dayal v. Jwala Prasad . AIR 1966 Alld. 623., wherein the Court held that if the landlord accepts rent for a period subsequent to the notice, in that circumstances the notice can be treated as waived.
5. A landlord can waive the notice as provided under Section 113 of Transfer of Property Act which provides that the 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. The person claiming that the notice has been waived has to satisfy two essential ingredients (i) the intention of the landlord was to treat the lease as subsisting, and (ii) he had a knowledge of the fact that this conduct amounts to waiver.
6. In Associated Hotels of India Ltd. v. S.B Sardar Ranjit Singh . AIR 1968 SC 933., the Hon'ble Supreme Court made the following observation:
“A waiver is an intentional relinquishment of a known right. There can be no waiver unless the person against whom the waiver is claimed had full knowledge of his rights and of facts enabling him to take effectual action for the enforcement of such rights. (See Dhankdhari Singh v. Nathima Sahu . 1907 7 Cal WN 848 at P. 852.)”
7. In Ram Krishna v. Jhaman Das . 1986 1 ARC 276., it was held that if the landlord accepts the rent after the institution of the suit for the period subsequent to the, date of termination of tenancy, it cannot be held that he has waived the notice.
8. In Gulab Singh Rawat v. District Judge, Uttar Kashi . 1984 1 ARC 468., it was held that if the landlord accepts the rent from the tenant after expiry of the time granted to the tenant for vacating the premises, it would not amount waiver of termination of tenancy unless it is proved that a fresh contract of tenancy was entered into between the landlord and tenant.
9. If the landlord accepts the rent for the period subsequent to the date of termination of tenancy, that does not amount waiver of notice, unless there are other compelling circumstances to indicate that there was intention of the landlord to treat the lease as subsisting.
10. In the present case the plaintiff-respondent filed suit for recovery of arrears of rent and ejectment on 16.8.1984 and in Para 8 of the plaint he stated that the defendant had sent Rs. 90/- by Money Order in the month of June 1984 and he had adjusted the said amount towards rent. According to the petitioner Rs. 90/- was sent in the month of June 1984 as rent for the period June 1984 to August 1984. The contention of the plaintiff was that he accepted various Money Orders under protest and the period for which the rent was mentioned in the Money Order Coupon was not taken as correct. He had admitted only the acceptance of the amount given in the Money Order but not the period for which it was given. In these circumstances it cannot be a said that there was any intention on the part of plaintiff-respondent to treat the lease as subsisting or he waived the notice sent to the petitioner.
11. The next submission of the learned counsel for the petitioner is that the notice was not served upon the petitioner as he never refused to accept the notice. The notice was sent by registered post and was returned with the endorsement ‘refused to accept’. The Judge Small Causes Court recorded a finding, on consideration of evidence, that the notice shall be deemed to have been served. This finding was confirmed by the revisional court. This finding does not suffer from any manifest error of law.
12. The last submission of the learned counsel for the petitioner is that the rent has been paid for the period upto August 1984. The rent was paid by Money Order and the period for which the rent was being sent was mentioned in the Money Order Coupon. The version of the landlord was that the Money Order was received but the period mentioned was not correct.
13. The Judge Small Causes Court recorded a finding, after consideration of the evidence, that the rent was due against the petitioner since May 1984. It is a finding of fact and it does not require any interference. Even otherwise the difference of amount, according to the petitioner, will be Rs. 440/-. The rate of rent is Rs. 30/- per month. The courts below have recorded a finding that the accommodation in dispute was not governed by the provisions of U.P Act No. XIII of 1972. The petitioner shall be liable for eviction after termination of tenancy. There is no merit in the writ petition. It is accordingly dismissed.
14. Petition Dismissed.
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