Hon'ble Prakash Krishna, J.:-
Challenging the legality and validity of the judgment and decree dated 4-12-1989 passed in SCC suit no. 3 of 1989, the present revision under Section 25 of the Provincial Small Cause Courts Act, has been filed by the defendant tenant.
The plaintiff opposite parties instituted SCC suit no. 3 of 1989, against the present applicant on the allegations that the plaintiff no. 1 is the owner and landlady of the disputed shop situate in Mohalla Sabitganj District Etawah. By means of a sale deed dated 16-8-1976, the plaintiffs who are the husband and wife, purchased the property in a dilapidated condition. After getting the existing constructions demolished, the present shop was constructed subsequently and was let out for the first time on 31-8-1979, to the defendant Om Prakash, on a monthly rent of Rs. 300/-. The shop was never let out to any other person prior to the aforestated date and the construction was completed in March, 1979. The suit having been filed within 10 years from the date of construction, the provisions of U.P. Act No. 13 of 1972 are not attracted.
The suit was contested on the pleas inter alia that the shop in question is a 'new construction' within the meaning of Section 2(2) of U.P. Act No. 13 of 1972 and as such, the provisions of U.P. Act No. 13 of 1972 are applicable thereto. The defendant tenant claimed that the rent has been deposited in misc. case no. 133 of 1986 and, therefore, the defendant is not a defaulter and is not liable for eviction. The benefit of Section 114 of the Transfer of Property Act, was also claimed.
The parties led evidence in support of their respective cases. The plaintiffs produced the sale deed dated 16-8-1976 and the deed of tenancy between the parties, carbon copy of notice dated 24-10-1986 etc. In reply, the defendant applicant filed seven documents in the form of rent receipts, receipt of money orders, money orders coupons, copy of tender etc.
The trial court by its judgment dated 4-12-1989, on the basis of the material on record, reached to the conclusion that the shop in question is a 'new construction' and as such the provisions of U.P. Act No. 13 of 172, are not applicable to it. The shop was let out for the first time after new construction to the defendant tenant and from the said date, the period of 10 years till the institution of the suit has not expired, therefore, in view of Explanation I to Section 2(2) of U.P. Act No. 13 of 1972, the shop in question is exempt from the operation of the said Act. It was further found that the benefit as available under Section 114 of the Transfer of Property Act, cannot be extended to the defendant as the said benefit is available when the lease is determined by forfeiture for non-payment of the rent. The notice determining the tenancy in the present case not being of determination by forfeiture, the defendant tenant is not entitled to get the benefit of Section 114 of the Transfer of Property Act. The suit for eviction and delivery of possession was ultimately decreed by the judgment under revision.
Sri Ashutosh Srivastava, learned counsel for the applicant, in support of the revision, submits the following two points for consideration. Firstly, the notice determining the tenancy stood waived as the landlords opposite parties have given a notice demanding the arrears of rent during the pendency of the present revision. Secondly, the finding on the question of non-applicability of provisions of U.P. Act No. 13 of 1972 is vitiated as the trial court has failed to consider the statement of one of the witnesses produced by the defendant tenant, in this behalf.
Considered the aforesaid submissions of the learned counsel for the applicant and perused the record.
Taking the first point first, it may be noticed at the very outset that the said point was not urged before the court below and it could not have been urged there for the reason that the said point has been cropped up during the pendency of the present revision. Along with the application and affidavit, a copy of the notice dated 26-10-1995 (given during the pendency of the present revision by the plaintiffs opposite parties) has been annexed. The submission is that since in the said notice, the plaintiffs opposite parties have treated the defendant applicant as tenant of the disputed shop, the earlier notice determining the tenancy, according to the learned counsel, stands waived. This being so, the decree for eviction passed against the applicant is liable to be set aside, submits the learned counsel for the defendant tenant. In this connection reliance has been placed by him on certain decisions. Before adverting to those decisions, it would be apt to notice the contents of the said notice in brief. In paragraph-1 of the notice it has been stated that the applicant is a tenant on their behalf on payment of monthly rent of Rs. 300/-, besides the taxes. In paragraph-2, month to month tenancy has been mentioned. In paragraph-3 thereof, it has been claimed that the applicant is in arrears of house tax since the year 1979, which he has failed to clear in-spite of the demand and notice. Further, in paragraph-4, arrears of rent since January 1995, has been claimed. The landlords asked him not to deposit the rent in the court but to pay the same to them directly but to no effect. Further complaint is that the defendant applicant is not depositing the rent even in the ejectment case. Elaborating the arguments, learned counsel for the applicant submits that there is a clear admission, admitting the applicant as a tenant in the notice and as such, the earlier notice stood waived.
Section 113 of the Transfer of Property Act, provides for waiver of notice to quit. It says that a notice given under Section 111 is waived, with express or implied consent of the person to whom it is given, by any act on the part of a person giving, it shows an intention to treat the lease as subsisting. A bare perusal of Section 113 of the Transfer of Property Act, would show that a notice can be waived upon the consent of both the parties i.e. the lessor and the lessee. The expression used in the said provision "with express or implied consent of the person to whom it is given" signifies that there should be a consent express or implied on the part of the lessee also. 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 facts enabling him to take effectual action for the enforcement of such rights. See Associated Hotels of India Vs. S.B. Sardar Ranjit Singh, AIR 1968 S.C. 933.
There are catena of cases wherein, it has been held to constitute waiver under Section 113, mere tender and acceptance of rent are not sufficient. These two actions show an intention on the part of the landlords to treat the lease as subsisting. Whenever there is an acceptance by the landlord for any sum tendered by the tenant as rent, the court is obliged to look to such acceptance in the light of the last of such requirement of Section 113 as to whether this acceptance has shown an intention on the part of the landlord to treat the lease as subsisting. Reference can be made to New India Assurance Co. Ltd. Vs. Ghanshyam Das, AIR 1997 Allahabad 383.
In C. Albert Morris Vs. K. Chandrasekaran and others, 2006(1) ARC 519, the Apex Court has examined its earlier judgment on the point and has held that consensus of judicial opinion in this country is that a mere continuance in occupation of the demised premises after the expiry of the lease, notwithstanding the receipt of an amount by the landlord would not create a tenancy so as to confer on the erstwhile tenant the status of a tenant or a right to be in possession.
More appropriately in Sarup Singh Gupta Vs. s. jagdish singh, 2006(3) arc 320, the apex court interpreted section 113 of the transfer of property act and observed as follows:-
".......A mere perusal of Section 113 leaves no room for doubt that in a given case, a notice given under Section 111, clause (h), may be treated as having been waived, but the necessary condition is that there must be some act on the part of the person giving the notice evincing an intention to treat the lease as subsisting. Of course, the express or implied consent of the person to whom such notice is given must also be established. The question as to whether the person giving the notice has by his act shown an intention to treat the lease as subsisting is essentially a question of fact. In reaching a conclusion on this aspect of the matter, the court must consider all relevant facts and circumstances, and the mere fact that rent has been tendered and accepted, cannot be determinative."
In the case, referred to above, the landlord even after accepting the rent tendered, filed a suit for eviction and even while prosecuting the suit accepted the rent, which was paid to him by the tenant. Even on these facts, the plea of waiver of notice was not accepted. The Court observed that the fact that in any event, even if, the rent was neither tendered nor accepted, the landlord in the event of success would be entitled to the payment of arrears of rent, cannot be ignored. There being no other fact or circumstance to support the plea of waiver, the said plea was rejected.
Keeping in view the above ratio, in the background of mind, the facts of the case which are not in dispute, may be examined. In the present case, while admitting the revision, a conditional stay order on the condition of deposit of monthly rent was passed by this Court on 19-12-1989. The said order is reproduced below:-
"Issue notice.
The ejectment of the applicant from the premises in dispute shall remain stayed provided he deposits the entire decretal amount along with costs due under the decree within a period of one month from today and keeps on depositing the future damages with effect from January 1990 by every 10th day of the succeeding month. In the event of non-compliance of any of the aforesaid conditions, this stay order shall stand vacated automatically.
The defendant would be entitled to get adjustment of the amount already deposited by him."
Under the aforesaid order, the applicant was obliged to deposit the monthly rent in the court. He continued to deposit the rent and rent was not tendered inspite of willingness of the landlords to accept it directly.
Now the question of effect of notice dated 26-10-1995 given during the pendency of revision in the light of Section 113 of Transfer of Property Act, as submitted by the applicant's counsel, may be examined. Through this notice, the plaintiffs landlords have demanded arrears of house tax due since 1979, vide para-3. In para-4 of the said notice, it has been stated that the rent is due since January 1,1995 and the same may be paid to them directly as he was advised earlier, but the applicant is neither paying the rent to them directly nor depositing the same in the court even in the eviction case.
Sri Ashutosh Srivastava, learned counsel for the applicant very fairly accepts that in pursuance of the aforestated notice, no money was tendered by the defendant applicant to the plaintiff landlords. In other words, the defendant applicant failed to comply with notices given to him. This being so, it is difficult to understand as to how by mere giving of a notice, which was not acted upon by the noticee, would amount the waiver of notice to quit. The plaintiffs landlords are hotly contesting the revision and entitled to receive damages for the use and occupation of the disputed property so long as its vacant possession is not handed over to them. There is neither any circumstance available on the record nor was urged except the fact of giving the notice dated 26-10-1995, to show the intention express or implied on the part of the plaintiffs landlords that the notice has been waived. The present case is still worst in as much as no rent was tendered in pursuance of the aforesaid notice to the landlords by the defendant applicant. The second requirement to constitute waiver of notice that there should be consent of the tenant express or implied to waive the notice, is also absent in the present case.
Now, I will consider the cases relied upon by the learned counsel for the applicant. The first case is Ranjit Chandra Chaudhary Vs, Mohitosh Mukherjee, AIR 1969 Supreme Court 1187. Reference was made to a portion of paragraph-8 of the report in particular. The said paragraph does not advance the case of the applicant as it says only this much that under Section 113 of the Transfer of Property Act, a notice is waived by an act on the part of the person giving it showing an intention to treat the lease as subsisting provided there is express or implied consent of the person to whom it is given. There is no quarrel about the said proposition.
Reliance was then placed on Lalloo Bhai Chhagan Lal Vs. Nawal and others, 1978 (4) ALR 369, wherein it has been held that institution of suit does not take away the right of the parties to waive the notice to quit the property leased and to continue the lease. The said decision should be read and understood in the light of the subsequent decisions of the Apex Court, already referred to hereinabove.
In the case of Padam Chand Garg Vs. Atar Singh Rikshawala, AIR 1972 Allahabad 217, the plaintiff landlord had written a letter to the tenant in a pending second appeal against dismissal of eviction suit to pay him the rent due till then. On these facts, it was held that the notice stood waived. The said case is distinguishable, as there was no decree for eviction and there was a clear intention on the part of the landlord to waive the notice, which is not so here.
The case of Tayabali Jaffarbhai Tankiwala Vs. Messrs. Asha & Co. and another, 1970(1) Supreme Court Cases 46 is also distinguishable in as much as on the facts of that case it was found by the Court that the plaintiff landlord was fully alive to distinction between the rent and damages for use and occupation. In that case earlier a notice was given terminating the tenancy on the ground of non-payment of rent. a second notice was given for vacant possession on the ground that it was required for personal use and occupation by the landlord. On the facts of that case it was found that the landlord showed his clear intention to waive and condone the ground of default. The ratio laid down therein should be understood in the peculiar facts and circumstances of that case.
The last case relied upon is Dahyabhai Limjibhai and others Vs. Amarchand Jagjivan and another, AIR 1971 Gujrat 73 wherein it has been held that waiver of notice is purely a question of fact and the said question cannot be decided in writ petition, specially when there are no materials on the record. The said case does not support in any manner the stand of the applicant.
Upshot of the above discussion is that there is no waiver of notice in the present case in view of the judgment of the Apex Court in Sarup Singh Gupta Vs. S. Jagdish Singh (Supra).
Now I take up the second point relating to the date of construction of the disputed shop. It is not in dispute that the said property was purchased by the plaintiffs opposite parties by means of a sale deed dated 16-8-1976. The case of the plaintiffs landlords is that by means of the said sale deed, the property in dilapidated condition was purchased, wherein a new construction was raised in the form of a shop and was let out to the defendant applicant for the first time on 31-8-1979. The suit has been instituted within a period of 10 years from that date. The argument of the defendant applicant is that in the sale deed, it is mentioned that it was in occupation of a tenant. Further argument is that before letting it out to the defendant applicant, it was in occupation of one Ram Babu. The court below has found that Ram Babu has not been produced by the defendant applicant. Even according to the statement of defendant applicant, Ram Babu remained as tenant of the disputed shop for a period of one-two years. It has been found that even if, the said statement is accepted as a gospel truth, Ram Babu entered into occupation on or after 31-8-1977, the defendant tenant admittedly became the tenant of the disputed shop thereafter. The suit was filed on 1-1-1987. The period of 10 years did not complete from 31-8-1977 to 1-1-1987. At this juncture, the learned counsel for the applicant submits that the statement of one of his witness namely Munney Baris, was not considered by the trial court. A copy of the statement has been filed as Annexure-2 to the affidavit filed in support of the stay application. He has stated that he was the tenant in a nearby shop since the year 1977-78 and had seen Ram Babu as tenant in the disputed shop. A bare perusal of the said statement would show that the witness is not sure about the period during which Ram Babu remained in occupation of the disputed shop as a tenant. The statement of the witness does not find corroboration from any other material. A perusal of the statement shows that he has given the statement on the basis of perception. He could not state as to for what period and on what rent Ram Babu was there. The statement given by him demonstrates that Ram Babu was there for one or two years prior to the present applicant's occupation. Taking the said statement on its face value, the trial judge has rightly observed that it could lead to us to August 1977, at the most, when the shop was constructed and the suit was filed within 10 years therefrom on 1-1-1987. Except the above, learned counsel for the applicant could not point out any illegality or perversity in the appreciation of evidence as done by the trial court. There being no positive material on the record from the side of the defendant applicant that the shop in question was constructed more than 10 years earlier from the date of the suit, the finding recorded by the trial court does not call for any interference under Section 25 of the Provincial Small Cause Courts Act. The witness has accepted that earlier there was a kothari with wooden roof. The said kothari has been replaced by a shop which is bigger in size i.e. length and breadth. Height of the shop has also been raised and wooden roof has been replaced by lintal. From the statement of the witness itself, it is evident that a 'new construction' has taken place and the learned counsel for the applicant rightly did not urge before this Court that no 'new construction' was raised by the plaintiffs landlords after purchase of the property in question. There being no municipal assessment, the date of first occupation is the relevant date for the purpose of determination of the date of construction, as provided under Section 2(2) of U. P. Act No. 13 of 1972.
Viewed as above, I find no merit in the second submission also of the learned counsel for the applicant. The finding recorded by the trial court that the suit has been filed within 10 years from the date of construction is, therefore, call for no interference. The plaint was filed on 1-1-1987.
No other point was pressed.
In view of the above discussions, the judgment and decree of the court below do not call for any interference and deserve to be confirmed.
The revision, therefore, is dismissed with costs. However, time to vacate the disputed accommodation is granted upto 31-12-2009, provided the applicant files an undertaking on affidavit before the trial court that he will vacate the disputed shop or on before that date and will hand over its peaceful vacant possession to the plaintiffs opposite parties. The applicant shall also pay/deposit the entire arrears of rent and damages for the use and occupation at the decreed rate within a period of one month after adjusting the amount, if any, already deposited. The applicant shall also pay the damages for use and occupation of the disputed accommodation at the rate of Rs. 2,500/- per month for the period from August, 2009 to December, 2009, in advance, within a period of one month. If the applicant fails to vacate the disputed accommodation on or before the aforesaid date, the applicant would be liable to pay the damages at the rate of Rs. 5,000/- per month from the date of judgment till the date of actual delivery of possession.