Sanjiv And Others v. Mahabir Digambar Jain Mandir

Shashi Kant Gupta, J.—

1. This writ petition is directed against the judgment and order dated 31.3.2012 passed by the District Judge, Baghpat (Annexure No. 1) whereby the judgment and order dated 12.11.2010 passed by the Judge, Small Causes Court/Civil Judge (Senior Division), Baghpat was set aside and the suit filed by the petitioner for arrears of rent and ejectment was decreed.

2. Brief facts of the case as set out in the writ petition are as follows;

3. One Surendra Singh was the original tenant of the shop in dispute who expired on 5.4.2004 and the tenancy was inherited by the present petitioners. A notice for termination of tenancy under Section 106 of the Transfer of Property Act (in short "TP Act") was issued to the petitioners by the respondent on 28.11.2005 whereby arrears of rent was demanded and it was stated that the petitioners have sub-let the disputed premises. It was further stated that up act no. 13 of 1972 (in short "act") is not applicable to the disputed premises. The said notice was received by the petitioners on 30.11.2005. The petitioners paid the entire arrears of rent/damages to the respondent on 8.12.2005 i.e. before the expiry of the notice.

4. Thereafter, on 15.2.2006 a SCC Suit was filed by the respondent on the grounds of non-payment of rent and subletting. It was stated in the paragraph 7 of the plaint as follows;

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5. The aforesaid averment made in para 7 of the plaint that up act no. 13 of 1972 was not applicable, was admitted by the petitioners in paragraph 7 of their written statement. Thus, there is no dispute about the fact that the up act no. 13 of 1972 is not applicable to the premises in dispute.

6. The trial court by its judgment order dated 12.11.2010 dismissed the suit on this ground that the respondent had waived the notice of termination of tenancy by accepting the rent from the petitioners and there was no sub-letting of the disputed premises.

7. Feeling aggrieved and dissatisfied with the said judgment and order, the respondent filed a SCC Revision. The revisional court by judgment and order 31.3.2012 allowed the said revision. Hence, the present writ petition.

8. Learned counsel for the petitioner has submitted that the findings recorded by the revisional court is illegal and against the provision of Chapter V of the Transfer of Property Act, inasmuch as the aforesaid notice dated 28.11.2005 was waived by the landlord by accepting the arrears of rent before the expiry of notice as well as regularly accepting the rent during the pendency of the suit. It was further submitted by the learned counsel for the petitioner that the acceptance of arrears of rent within ten days of notice dated 28.11.2005 by money order dated 8.12.2005 itself is sufficient to protect the tenancy of petitioners and the revisional court erred in holding that notice was not waived.

9. Per contra, learned counsel for the respondent submitted that admittedly the provisions of UP Act No. 13 of 1972 is not applicable in the present matter, therefore the tenancy can be terminated by a simple notice under section 106 of tp act and the question with regard to committing default in payment of rent is wholly irrelevant. It was further submitted that mere acceptance of rent before the expiry of the notice issued under section 106 of the tp act will not amount to waiver of notice but the same will be treated as acceptance of damages for the period as claimed by the respondent in pursuance of the notice dated 28.11.2005. Learned counsel for the parties have also referred to the oral evidences adduced by the their witnesses.

10. Heard the learned counsel for the parties and perused the record.

11. It is admitted by the learned counsel for the parties that there is no dispute about the fact that the up act no. 13 of 1972 is not applicable to the disputed premises. It has also been admitted by the parties that in pursuance of the notice issued under Section 106 TP Act, the rent of Rs. 6239/- was paid by the petitioners to the respondent by money order on 8.12.2005. It was also not disputed that the notice of termination of tenancy was given on 28.11.2005 and the entire arrears of rent of Rs. 6239/- was paid by the petitioner through money order on 8.12.2005 which was accepted by the respondent on 13.2.2005 i.e. before the expiry of the tenancy.

12. The SCC Suit was filed on 15.2.2006 for ejectment and damages on two grounds; subletting and non payment of rent. The arrears of rent/damages was deposited by the petitioner during the pendency of the suit which was withdrawn by the respondent. The suit was dismissed by the trial court on the ground that by accepting the rent after the issuance of notice would amount to waiver of notice as provided under section 113 of the tp act. It was further held by the trial court that there was neither any sub-letting nor any default in payment of rent. The said judgment and order was set aside by the revisional court and it was held that mere acceptance of rent after the issuance of notice under Section 106 TP Act will not amount to waiver of notice but the same will be treated as acceptance of damages for the period as claimed by the respondent in the notice dated 28.11.2005.

13. The main contention of the learned counsel for the petitioner is that the suit was filed on the grounds of non-payment of rent and sub-letting. The trial court has recorded categorical finding that the petitioner neither committed default in payment of rent nor there was any sub-letting. Therefore, the tenant was not liable to be evicted from the premises in dispute. The next contention of the learned counsel for the petitioner is that notice issued under Section 106 TP Act dated 28.11.2005 was waived by the landlord by accepting the rent.

14. The contention of the learned counsel for the petitioner is wholly misconceived and cannot be accepted. In the instant case, notice to quit was given on 28.11.2005. In pursuance to the notice, the petitioners-tenant paid rent of Rs. 6239/- which was accepted by the landlord. The suit was filed on 15.2.2006. The question is whether this by itself constitute an act on the part of the landlord showing an intention to treat the lease as subsisting.

15. In a similar matter, the Apex Court in the case of Sarup Singh Gupta Vs. S. Jagdish Singh, 2006-Law (SC)-3048 has held as follows;

"In our view, mere acceptance of rent did not by itself constituted an act of the nature envisaged by Section 113, Transfer of Property Act showing an Intention to treat the lease as subsisting. The fact remains that even after accepting the rent tendered, the landlord did file a suit for eviction, and even while prosecuting the suit accepted rent which was being paid to him by the tenant It cannot, therefore, be said that by accepting rent, he intended to waive the notice to quit and to treat the lease as subsisting."

16. This Court in the case of Om Prakash Vs. Mst. Khairunnisa and another, 2009 (3) ARC 18 has held as follows;

"9. 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.

10. 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 : 1997 (2) ARC 53.

11. 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.

12. 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."

13. 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."

17. This Court in Amir Zia and others Vs. State Bank of India, 2006 (3) ARC 63, has held as follows;

7. The first question mooted in the revision is whether the findings of the court below that by acceptance of rent by the plaintiff, notice terminating the tenancy stood waived or not. It is not in dispute that the plaintiff Gyasuddinby means of notice dated 26.9.1989 (Exhibit-1) which was served on the defendant on the next date vide (Exhibit-2) terminated the tenancy. It has come on record that the monthly rent was Rs. 3,000 out of it the Bank used to credit a sum of Rs. 2,000 per month towards loan account by crediting it and Rs. 1,000 were used to be paid to the deceased Ghyasuddin-plaintiff. The amount thus credited in the loan account after receipt of notice has been held by the court below as payment to the plaintiff and, therefore, it concluded that the notice terminating tenancy stood waived. The case of the plaintiff was that the amount thus received after notice was by way of damages as the defendant Bank failed to vacate the disputed premises after termination of tenancy. The trial court has correctly noticed the statement of P.W. 1 Jamaluddinthat the amount received was towards damages. Before the trial court certain decisions such as Smt. Sharda Sharma v. Guladevi ; Ram Kishan and Anr. v. Jhanand Das 1986 (1) ARC 276; New India Insurance Company v. Ghanshyam Das, 1996 (2) ARC 53 : 1997 (3) AWC 1935 and Anis Ahmad v. Special Judge/Additional District Judge Saharanpur 1997 (2) ARC 32 : 1997 (Supp) AWC 215, were cited to show that mere acceptance by a landlord of the amount tendered by the tenant after termination of tenancy during the pendency of suit for ejectment does not amount to waiver. A waiver is intentional relinquishment of known right. The tenant after termination of tenancy if fails to vacate the premises after expiry of period of tenancy and sends the amount of rent through money order, the acceptance of such money order by the landlord would not amount to waiver. Acceptance of money order treating it as damages for illegal occupation cannot constitute as waiver.

8. Learned trial court noticed and appreciated the legal position but has committed an illegality while applying it on the facts of the present case. The relevant portion of the judgment of the trial court is reproduced below:

"The above cited case law clearly indicated that the waiver of notice can be taken when the landlord accepts it with a certain intention and that intention should be communicated to the tenant. in this case after the termination of the tenancy, deceased Ghayasuddln plaintiff accepted the amount for the period from 27.10.1989 to 31.10.1989 but he did not convey his intention to the defendant if it was taken as a damage or as rent while it was his duty to have conveyed it or should have conveyed his protest. Thus it cannot be said that the plaintiff Ghayasuddin deceased had not waived the notice."

The mistake in the aforesaid order is apparent on the face of record, inasmuch as there is nothing to indicate that the deceased Ghyasuddin accepted the amount intentionally as rent with a clear understanding to waive the notice. The mode of payment of rent has already been indicated above and the Bank by crediting to the loan account of Ghyasuddin cannot urge that notice stood waived at the in stance of the deceased Ghyasuddin. It would not be out of place to mention here that legal position is crystal clear.

9. In a recent Judgment the Apex Court has examined the question of waiver of notice to quit where rent has been accepted by the landlord after service of notice to quit and before initiation of any eviction proceeding in Swaroop Singh Gupta v. Jagdish Singh . It considered Section 113 of T.P. Act as well as decision of Calcutta High Court in Manik Lal Chaudhary v. Khadam Das AIR 1926 Cal 763 and held that there must be some act on the part of lessor evidencing the intention to treat lease as subsisting the Court while deciding the question of waiver must consider all relevant facts and circumstances of the case "and mere fact that rent has been detained and accepted cannot be determinative". in the case in hand except that the rent was accepted by the lessor after giving notice to quit there is no material on record to show that the lessor by his any action expressed the intention to treat lease as subsisting. Relevant portion from the aforesaid decision of Apex Court is quoted below:

"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 conditions is that there must be some act on the part of the person giving the notice evidencing 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."

18. Legal position as emerging from the aforesaid authorities is that a mere acceptance of rent did not by itself constitute an act of the nature as contemplated by Section 113 Transfer of Property Act showing an intention to treat the lease as subsisting. The fact remains that even after accepting the rent tendered, the landlord did file a suit for eviction, and even while prosecuting the suit accepted rent which was being paid to him by the tenant it cannot, therefore, be said that by accepting rent, he intended to waive the notice to quit and to treat the lease as subsisting. The respondent-landlord was absolutely within its rights to receive the rent. Mere acceptance of rent before the expiry of the notice issue under section 106 of the tp act will not amount to waiver of notice.

19. In this connection, it is relevant at this stage to refer the decision of this Court in the case of Yashpal Lala Shiv Narain Vs. Allahatala Malik Waqf Azakhan

and others (AIR 2006 All 115) wherein it was observed in paragraphs No. 129, 130 and 131 as follows;

129. Again, as noted above, the Money-Order sent on 4th September 1996 by the petitioner (defendant) along with reply- notice dated 4th September, 1996 (Annexure 4 to the Writ Petition) was in respect of rent for the period upto 31st August, 1996, as is evident from the said reply-notice dated 4th September 1996 (Annexure 4 to the Writ, Petition). As the petitioner (defendant) was liable to pay rent for the period upto 29th September, 1996, the acceptance of the said Money-Order on 9th September, 1996 by the respondent (plaintiff-landlord) in respect of rent for the period upto 31st August 1996 would not amount to waiver of notice under Section 106 read with Section 111 (h) of the Transfer of Property Act.

130. Reference in this regard may be made to illustration (a) to Section 113 of the Transfer of Property Act. The said illustration (a) is reproduced below:

"(a) 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"

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131. It is evident from the said illustration that when the rent, which has become due since the "expiration of the notice" - is accepted then the notice stands waived. Therefore, if the rent, which becomes due for the period after the expiration of 30 days from the date of service of notice under Section 106 read with Section 111 (h) of the Transfer of Property Act, is accepted, then the notice stands waived. However, if the rent in respect of the period upto 30 days from the date of service of notice under Section 106 read with Section 111 (h) of the Transfer of Property Act, is accepted, then there is no question of waiver of the said notice because the said rent would be for the period before the "expiration of the notice".

20. In the present case, notice under section 106 of the tp act was received by the petitioner on 28.11.2005 and the amount of rent was paid by the petitioner by money order on 8.12.2005 which was received by the respondent landlord on 13.2.2005. It would not amount to waiver merely because the rent was paid by the tenant within 10 days and it was accepted by the landlord before the "Expiration of Notice". To constitute waiver under section 113 of the tp act mere tender and acceptance of rent are not sufficient, there must be an intention on the part of the landlord to treat the lease as subsisting. In the present case even after accepting the rent tendered, the landlord did file a suit for eviction it cannot therefore be said by accepting rent he intended to waive the notice to quit and to treat the lease as subsisting.

21. Learned counsel for the petitioner has relied upon the decision of this Court in the case of Vinod Kumar Rastogi Vs. VIIth Additional District and Sessions Judge, Allahabad, 2003-TLALL-0-2954.

22. I am afraid to say that the aforementioned case has no bearing on the case in hand and clearly distinguishable on facts. In the present case there is no written lease agreement and the tenancy was not terminated by forfeiture under section 111, clause (g) of the TP Act, therefore, Section 114 of the TP Act, would not be applicable and the petitioners cannot get any benefit of deposit.

23. In this connection, I am also fortified in my view by the decision of this Court in the case of Yashpal Lala Shiv Narain v. Allatala Tala Malik Waqf Ajakhan Mus (supra), wherein this Court has held as follows;

"76. Hence, in view of the aforesaid, it follows that for the applicability of Section 111 (g), Category (1), and, as such, of Section 114 of the Transfer of Property Act, it is necessary that the lease must be in writing containing the express condition as per the requirements of Section 111 (g), Category (1). In case, there is no written lease-deed, the provisions of section 11l (g), category (1), and, as such, of Section 114 of the Transfer of Property Act will not apply. The provisions of Section 111 (g), Category"

(1), and consequently, of Section 114 of the Transfer of Property Act are not applicable to oral lease. This view gets support from various judicial decisions.

77. In U.P. State Road Transport Corporation case 1981 All LJ 608 (supra) a learned Single Judge of this Court held as follows: (paragraphs 5 and 6 of the said A.L.J.);

"5. Section 114 of the Transfer of Property Act entitles a lessee for relief against forfeiture for non-payment of rent. In the instant case, there is no agreement of lease between the parties. The lease has not been forfeited for non-payment of rent. In the circumstances, Section 114 of the Transfer of Property Act does not apply."

24. The revisional court has given cogent, convincing and satisfactory reasons while passing the impugned order in favour of the landlord. The impugned order passed by the revisional court is neither perverse nor based on any extraneous or irrelevant material. This Court, while exercising its power under Article 226 of the Constitution of India, can not substitute its opinion for the opinion of the courts below unless it is found that the conclusion drawn by the courts below is manifestly illegal and perverse.

25. In view of what has been discussed, herein above, I do not find any illegality, infirmity or perversity in the impugned orders which may warrant any interference.

26. In the result, the writ petition fails and is dismissed.

27. Lastly, learned counsel for the petitioners urged that at least six months' time may be granted to the petitioners for vacating the premises in dispute so that in the meantime they can make alternative arrangement. The learned counsel for the respondent-landlord did not raise any objection to it.

28. As urged by the learned counsel for the petitioners, six months' time is granted to the petitioners to vacate the premises in dispute provided they give their undertaking in the form of an affidavit before the prescribed authority within one month from today specifically stating therein that they will handover the peaceful possession of the said accommodation to the respondent-landlord without inducting any third person within a period of six months from today and will pay the entire decretal amount including the damages within four weeks from today before the trial court. It is further provided that the petitioners shall deposit Rs. 500/- per month as rent/ damages w.e.f. May 2012 for use and occupation of the disputed premises by 7th of each succeeding month before the trial court for immediate payment to the landlord.

29. In case of default in compliance of the aforementioned conditions, the stay order shall stand automatically vacated and the respondent-landlord will be at liberty to evict the petitioner with the aid of the police force.

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