Madras High Court
Sri Kayaroganaswamy Neelayadhatchi vs Nagapattinam Co-Operative on 12 March, 2012
Author: M.Venugopal
Bench: M.Venugopal
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 12.03.2012 CORAM THE HONOURABLE MR.JUSTICE M.VENUGOPAL S.A.No.1631 of 2001 Sri Kayaroganaswamy Neelayadhatchi Amman Devasthanam represented by its Executive Officer, Neela Sannadhi, Nagapattinam Town & Munsifi. ... Appellant/Appellant/Plaintiff Vs. Nagapattinam Co-operative Housing Society Limited represented by its Secretary T.S.No.1737, Amaranandeeswarar Sannadhi, Neela East Street, Nagapattinam Town & Munsifi. ... Respondent/Respondent/Defendant Appeal filed under Section 100 of the Civil Procedure Code against the Judgment and Decree dated 20.09.1996 made in A.S.No.99 of 1996 on the file of the Learned Additional Subordinate Judge, Nagapattinam, confirming the Judgment and Decree dated 04.01.1995 made in O.S.No.107 of 1992 on the file of the Learned District Munsif, Nagapattinam. For Appellant : Mr.R.N.Kothandaraman For Respondent : Mr.K.M.Nalinishree J U D G M E N T
The Appellant/Plaintiff has projected the instant Second Appeal as against the Judgment and Decree dated 20.09.1996 in A.S.No.99 of 1996 passed by the Learned Additional Subordinate Judge, Nagapattinam, in affirming the Judgment and Decree dated 04.01.1995 in O.S.No.107 of 1992 passed by the Learned District Munsif, Nagapattinam.
2.The First Appellate Court viz., the Learned Additional Subordinate Judge, Nagapattinam, while passing the Judgment in A.S.No.99 of 1996 (filed by the Appellant/Temple), on 20.09.1996, has inter alia observed that 'as per Section 106 of the Transfer of Property Act, Ex.A.2 Notice has been issued and as per Section 111(h) of the Tenancy Agreement, Ex.A.2 Notice has been terminated on 31.12.1987 and that the Respondent/Defendant has been in enjoyment of the suit property and that the Respondent/Defendant has paid the rent in respect of the place as per Section 116, which has been accepted by the Appellant and as such, it is to be construed that as per Section 113, the Appellant/Plaintiff has given up the initiation of further proceedings and based on Ex.A.2 Notice, the relief prayed for by the Appellant/Plaintiff that the Respondent/Defendant is to vacate and hand over possession, cannot be granted and further opined that the Appellant/Plaintiff is not entitled to obtain the relief of recovery of arrears of rent in respect of the suit property and consequently, dismissed the Appeal without costs, thereby, affirming the Judgment and Decree passed by the trial Court in the main suit.'
3.Before the trial Court, in the main suit, 1 to 4 Issues have been framed for adjudication. On behalf of the Appellant/Plaintiff, Witness PW1 has been examined and Ex.A.1 to Ex.A.3 have been marked. On the side of the Respondent/Defendant, Witness DW1 has been examined and no documents have been marked.
4.The trial Court, on a scrutiny of the entire oral and documentary evidence available on record, has come to a consequent conclusion that since the plea of rental arrears has not been established through the evidence of PW1 on behalf of the Appellant/ Plaintiff with the aid of documents satisfactorily and out of Rs.150 rent, less payment of Rs.85/- made by the Respondent/Defendant, the out standing amount cannot be construed as arrears of rent and the same has not been proved to the satisfaction of the Court either through documents or through the evidence of PW1 and on that basis, the relief prayed for by the Appellant/Plaintiff that the Co-operative Housing Society should vacate from the place, cannot be granted in favour of the Appellant/Plaintiff. Moreover, it also held that after a long delay, the Appellant/Plaintiff has claimed a sum of Rs.10,458.60 and that it has not been proved firmly that on what manner, the Respondent/ Defendant has agreed to pay the enhanced rent of Rs.150/- and also it is not established that there has been any agreement between the parties and therefore, held that the Respondent/Defendant is not liable to pay the outstanding amount and dismissed the suit without costs.
5.At the time of admission of the Second Appeal, this Court has formulated the following substantial question of law for determination.
Whether the Plaintiff by accepting the Rent had waived the notice issued under Section 106 of the Transfer of Property Act?
6.The Contentions, Discussions and Findings on substantial question of law:
The Learned Counsel for the Appellant/Plaintiff submits that the trial Court as well as the First Appellate Court have committed an error in coming to the conclusion that the Appellant/Plaintiff (Temple) cannot legally make a claim of enhanced rent from the Respondent/Defendant (Tenant).
7.The Learned Counsel for the Appellant/Plaintiff (Temple) contends that both the Courts below have incorrectly held that the Respondent/Defendant is not liable to pay the enhanced rent to the Appellant/Plaintiff Temple in the absence of Respondent/Defendant's express consent for such an increase.
8.It is the further contention of the Learned Counsel for the Appellant/Plaintiff Temple that both the Courts below have erroneously held that the suit for eviction against the Respondent/Defendant is not maintainable, as there is waiver of notice of termination of tenancy.
9.Advancing his arguments, it is the submission of the Learned Counsel for the Appellant/Plaintiff Temple that both the Courts below have erroneously held that the notice of termination of tenancy has been waived by the Appellant/Plaintiff Temple for the reasons of acceptance of payment of the amount sent by the Respondent/Defendant (Tenant) at the old rate of rent.
10.Yet another submission made by the Learned Counsel for the Appellant/Temple is that the Courts below should have treated the Respondent/Defendant as a tenant by 'Holding Over' and after termination of his tenancy, any payment made by him in respect of his occupation, can only be treated as damages for use and occupation and therefore, there is no waiver and a Decree in favour of the Appellant/Plaintiff should have been passed by both the Courts.
11.Lastly, the Learned Counsel for the Appellant/Plaintiff contends that both the Courts should have decreed the suit filed by the Appellant/Plaintiff for eviction in the absence of any positive conduct on the part of the Appellant/Plaintiff to treat the termination notice as waived or the payments made has been accepted as rent without any reservation as any payment has been accepted always without prejudice.
12.In response, the Learned Counsel for the Respondent/ Defendant submits that the trial Court as well as the First Appellate Court has dealt with the entire gamut of the matter by looking into the oral and documentary evidence available on record and have come to the categorical conclusion that the Appellant/Plaintiff Temple has not established that it is entitled to claim the relief of ejectment against the Respondent/Defendant and further, both the Courts have gone to the extent of observing that on behalf of the Appellant/Plaintiff, it has not been established that the Respondent/Defendant has arrears of rent (over and above, a sum of Rs.85/- paid by the Respondent/Defendant). Furthermore, it is not established that between the parties, there has been an agreement to the effect that the Respondent/Defendant has agreed to pay a monthly rent of Rs.150/- and as such, it is held that the Appellant/Plaintiff cannot claim the arrears of rent from the Respondent/Defendant and dismissed the suit and the Appeal on merits, which need not be interfered with by this Court, sitting in Second Appeal, at this distance point of time.
13.For a better appreciation of the merits of the case, it is useful for this Court to make a reference to the pleadings projected by the parties.
14.In the Plaint, the Appellant/Plaintiff has averred that it is the owner of the Plaint schedule building, which has been leased out to the Respondent/Defendant (Society) some years ago and the original period fixed having expired, the Respondent/Defendant is continuing in possession as a tenant. The payment of rent is according to the English Calendar month. The Appellant/Plaintiff has been successful in raising the rent after long lapse of years and till August 1976, the rent has been only Rs.85/- per month.
15.The Government of Tamil Nadu finding that the rent for the Temple building has been low, constituted a Fair committee to determine the rent for each building and the said Committee in respect of the Appellant/Temple has determined the Fair rent for the Plaint schedule building at Rs.150/- per month, which has been informed to the Respondent/Defendant (Society). However, the Respondent/ Defendant has been continuing to pay the rent only @ Rs.85/- per month. The increased rent determined by the Committee is to come to the effect from the month of September 1976 onwards, which is payable by the Respondent/Defendant.
16.The suit building is situated in an important locality and as against the rent so fixed, the affected tenant has got a right of Appeal. The Respondent/Defendant has not filed any objection by filing Appeal. On being informed about the increased the rent, the Respondent/Defendant paid the rent amounts through Cheque only and avoided the direct payment to the Appellant. The amounts paid have been duly credited in D.C.B., maintained by the Appellant/Plaintiff. The arrear amount ending with July 1989 comes to Rs.10,458.60, which sum the Respondent/defendant is liable to pay. The Appellant/Plaintiff has caused a notice on 20.11.1987, terminating the tenancy and vacant possession has been demanded from the Respondent/Defendant. The Respondent/Defendant has not given any reply though it acknowledged the notice issued on 23.11.1987. Therefore, the Appellant/Plaintiff has filed the present suit against the Respondent/Defendant praying for a Decree of ejectment, directing the Respondent/Defendant to put the plaint schedule building in possession of the temple, also to pass a Decree against the Respondent/Defendant for a sum of Rs.10,458.60 and for issuance of direction to the Respondent/Defendant to pay the rent or damages for use and occupation of the premises at the rate of Rs.150/- per month till delivery of possession.
17.In the Written Statement filed by the Respondent/Defendant (Society), it is averred that the Appellant/Plaintiff has unilaterally increased the monthly rent from Rs.85/- to Rs.150/- and the unilateral entries made in D.C.B. Register of the Appellant/Plaintiff will not amount to a concluded contract between the parties or any enhancement in rent. The Secretary of the Society has issued a reply on 13.10.1976 to the Appellant/Plaintiff's Lawyer notice dated 29.09.1976 objecting to the unilateral increase of monthly rent. On 04.11.1977, the Executive Officer of the Appellant/Plaintiff issued a letter to the Secretary of the Respondent/Defendant Society claiming arrears of rent till 30.10.1977 at the rate of increasing rent of Rs.150/- per month. The Respondent/Society has been only paying the monthly rent of Rs.85/- notwithstanding the issuance of notices and exchange of correspondence between the parties.
18.The Executive Officer of the Appellant/Plaintiff on 01.08.1984 issued a Lawyer Notice to the Respondent/Defendant Society claiming payment of increased rent at the rate of Rs.150/- per month on and from 01.11.1976, in and by which the Respondent/Defendant is said to be in arrears of rent of Rs.5,330/- till 30.06.1983 and Rs.1,800/- from 01.07.1983 to 30.06.1984. The Respondent/Defendant is said to be in arrears of rent of Rs.7,130/- and a sum of Rs.1,020/- alone has been paid on 13.07.1984. The Appellant/Plaintiff by the notice dated 01.08.1984 terminated the tenancy ending with 31.08.1984. The Respondent/Defendant Society has caused a reply on 09.08.1984 through his Lawyer repudiating the claim of the Appellant/Plaintiff praying for enhanced rent. Even after reply, the Respondent/Defendant has been paying the rent to the Appellant/Plaintiff and that the Appellant/Plaintiff has accepted the rent at the rate of Rs.85/- per month. Another Lawyer notice dated 20.11.1987 has been issued by the Appellant/Plaintiff claiming arrears of rent at the rate of Rs.150/- per month. But, the Temple has not chosen to quantify the arrears of rent payable by the Respondent/Defendant. On 20.08.1991, again a demand of arrears of rent amount to Rs.11,953.60 at the rate of Rs.150/- per month has been made by the Appellant/Plaintiff. The rent till October 1992 has been paid by the Respondent/Defendant to the Temple. Every time a demand has been made by the Appellant/Plaintiff for payment of rent has been increased at the rate of Rs.150/- per month, the Respondent/ Defendant (Society) has repudiated the same. The claim of arrears of rent for more than three years are also barred by limitation.
19.The suit before the trial Court has been filed during September 1989 and thereafter, the Temple is accepting the rent at the old rate of Rs.85/- per month and the rent has been paid till October 1992. The Appellant/Plaintiff by its own conduct in accepting the rent after issuance of more than one notice to quit and also having accepted the rent for several months before the issue of last notice to quit and also after filing of the suit into Court must be deemed to have waived the notice to quit. To put it differently, the Respondent/Defendant's tenancy over the suit property has not been determined because of the waiver of the notice. The Appellant/Plaintiff is not entitled to claim the enhanced rent at the rate of 150/- per month and further, he is also not entitled to the relief of possession.
20.It is the evidence of PW1 (Accountant of the Temple) that the suit building belongs to the Appellant/Plaintiff and that the same has been let out for rent to the Respondent/Defendant and till 1976, the monthly rent has been at Rs.85/- and thereafter, the Government of Tamil Nadu, since the rent for temple properties are liable to fix a fair rent, has formed a Committee and the Committee has inspected the suit building and determined the rent at Rs.150/- and also that the Respondent/Defendant has been given the information about the said fixation of rent and thereafter, the same has not been intimidated in writing.
21.It is the further evidence of PW1 that till July 1989, the arrears of rent due from the Respondent/Defendant is Rs.10,458.60 and that D.C.B. Register copy in respect of the Respondent/Defendant is Ex.A.1 and Ex.A.2 is the notice dated 20.11.1987 and Ex.A.3 is the Acknowledgment Card.
22.PW1 (in his Cross examination) has deposed that the higher officials have inspected the property and after inspection, they have claimed an increased rent of Rs.150/- from July 1976 and after issuance of the Lawyer's Notice till the date of filing of the case, they have received a sum of Rs.85/- as rent and they have not issued a new notice and filed a case.
23.DW1 (Secretary of the Respondent Society) in his evidence has stated that at the time of his joining of service, the monthly rent for the suit building has been Rs.45/-. Later, it has been increased gradually and indeed, the rent is of Rs.85/- per month and there is no arrears of monthly rent and they sent the monthly rent by Cheque through Registered Post and likewise, they are paying two or three months and the H.R.& C.E. Department higher officials have not inspected the suit building during the year 1976 and that they have not received any notice in this regard and after inspection, no agreement has been entered into by them with the Appellant/Plaintiff in regard to the monthly rent of Rs.150/- and they continued to remain as tenant with the Appellant/Plaintiff on payment of monthly rent of Rs.85/- and after issuance of Ex.A.2 Notice, no notice has come to the Society and since the claim of monthly rent of Rs.150/- is unilateral, the same will not bind the Respondent/Defendant, as such, they are not liable to pay the rent from 1976 at the rate of Rs.150/- per month.
24.In Ex.A.2, the Appellant/Plaintiff's Lawyer notice dated 20.11.1987, addressed to the Secretary of the Respondent/Defendant Society, it is among other things mentioned that the suit building belongs to the Appellant/Plaintiff and that the Respondent/Defendant has entered into an agreement of tenancy to locate its office in the said premises some years ago and that the tenancy is according to the English Calendar month and further that, the rent originally fixed has been at Rs.85/- per month and moreover, the Fair Rent Committee has fixed the fair rent for premises as Rs.150/- per month from the month of September 1976 and that the rents have been paid by the Respondent/Defendant, on that basis, thereafter and on scrutiny of the accounts, the Respondent/Defendant has an arrear ending with the month of October 1987 amounting to a sum of Rs.9,520/-.
25.That apart in Ex.A.2 notice dated 20.11.1987, it is mentioned that the Respondent/Defendant has accumulated huge arrears and in spite of several demands, he has not cared to settle the matter amicably. Furthermore, it is also averred in Ex.A.2 Notice, dated 20.11.1987 that the Appellant/Plaintiff has determined the Lease, leave or grant ending with the midnight of 31st December 1987 and that the vacant possession of the premises will have to be handed over on the next day.
26.It is to be noted that as per the ingredients of Section 106 of the Transfer of Property Act, a notice to quit is undoubtedly a technical rule. The notice cannot be construed in a pedantic and impractical fashion. A Court of Law is to construe the quit notice in such a fashion that it should be defective or defeated owing to inaccuracies either in the language of the notice in regard to the description of premises or the name of the tenant etc. Notice to quit even with wrong details may still be good and effective so long as the receiver has not been misled.
27.In a case where there is a clear proof of Holding Over after the expiry of the original term contained in the Lease, the provisions of Section 106 of Transfer of Property Act would operate and a notice to quit is absolutely necessary as per decision Madhavan Vydiar v. Janaki, AIR 1973 Ker. 278.
28.A notice is an initial step in the early stage of a suit. In case of holding over after the expiry of the original lease, notice is very much essential, as opined by this Court. The notice terminating the tenancy should be in regard to the property leased out and not in respect of a portion of the lease. A notice to quit must be construed not with the desire to find faults in it, which would render it defective, but it must be construed ut res magis valeat quam pereat as per decision Bhagbandas Agarwalla v. Bhagwandas Kanu, AIR 1977 SC 1120.
29.A notice ought not to be read in a hyper-critical manner, nor must its interpretation being crippled by pedagogic pendantism or over refined subtletly. Per contra, it should not be interpreted in a manner so as to find fault with it, but only in a fashion so as to ascertain whether the individual receiving the notice understood the same. Also, a notice must clearly and without any doubt must convey the desire of the landlord to terminate the tenancy. A landlord who issues notice must express his intention that, from a specified date the relationship of lessor and lessee shall come to an end. But, based on the spirit of the notice, the intention will depend upon, in the considered opinion of this Court. Ordinarily, if the intention of the notice is to clear namely calling upon the tenant to vacate the premises, the fact that there is also a demand to pay the arrears of rent does not invalidate the notice as per decision Suraj Prasad v. Kusumlata Sinha, AIR 1973 All 198.
30.In P Ratnam v. Vimalchandra, AIR 1973 Bom 111, it is held that 'where, however, the notice is invalid, it does not terminate the tenancy and the landlord, on discovering this invalidity on the allegations made in the defendant's statement, can withdraw the suit and file a suit without permission of the Court.'
31.As per General Law and in cases where the tenancy is regulated by the provisions of the Transfer of Property Act, once the tenancy comes to an end by determination of Lease as per Section 111 of the Transfer of Property Act, the right of the tenant to continue in possession of the premises comes to an end, and for any period, he continues to occupy the premises, he is liable to pay damages for use and occupation. A tenancy at will or at a sufferance is decided by demand for possession or, by an entry by the landlord without notice or, by the tenant quitting.
32.Section 113 of the Transfer of Property Act speaks of 'Waiver of Notice to Quit'. Admittedly, a waiver is an intentional relinquishment of a known right. There can be no waiver, unless the individual 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 as per decision of the Honourable Supreme Court Associated Hotels of India Ltd v. SB Sardar Ranjit Singh, AIR 1968 SC 933.
33.Section 113 of the Transfer of Property Act permits the waiver of notice by the express or implied consent of the individual upon whom it is served. The waiver is express if it is made with the express consent of the person upon whom the notice is served. It is implied when, though it is not made with the express consent of the person upon whom it is served, yet the tenant, on receipt of the same, continues in possession of the demised premises, and the landlord acquiesces in his possession and receives rent.
34.To constitute a waiver as per Section 113 of the Transfer of Property Act, the landlord not only ought to have the knowledge of the fact that its conduct of accepting the rent amounts to waiver, but also that it should have the intention to treat the lease as subsisting.
35.At this juncture, this Court worth recalls the decision Chotey Lal v. Sheo Shankar, A.I.R. (38) 1951 Allahabad 478, wherein at 478 and 479, it is held as follows:
Illustration (a) to the Section 113 shows that in order that acceptance of rent may amount to a waiver of the notice the rent accepted must be for a period after the notice.
The effect of a second notice to quit under S.113 and of a waiver of forfeiture under S.112 is that the determination of the lease under Cls (g) and (h) of Section 111 does not take effect, because it is waived and the previous tenancy continues as before. The tenancy that runs after the waiver is not a fresh tenancy but is the same old tenancy that existed before the events mentioned in Clauses (g) and (h) of Section 111 happened.
In this respect the position of 'holding over' under S.116 is different. Under the doctrine of 'holding over', the previous tenancy is actually determined and thereafter fresh tenancy is by operation of law, on account of certain conduct of the parties, presumed to have come into existence. There is no fresh tenancy under the operation of Ss. 112 and 113.
In this view of the matter, the mere fact that a second notice to quit is given when the first notice is found defective or is waived does not affect the permission which had been granted by the District Magistrate or the Town Rationing Officer under the U.P. Act III( (3) of 1947 unless, of course, the permission was conditional and the condition is broken.
36.This Court aptly points out the decision Kapur Chand v. Kanji, AIR 1959 ANDHRA PRADESH 346, at Page 347 wherein it is held as follows:
Even where the tenant sets up the permanent tenancy or a lease for a particular period or in contradistinction to a tenancy from month to month or from year to year and is not able to establish that, he would not be debarred from putting forward the plea of waiver if he can establish that the landlord accepted rents subsequent to the expiration of the period of tenancy.
Where the tenant in his written statement put forward a tenancy of a period of 10 years but was not able to establish it, by force of Section 106 it being a tenancy of a residential building the tenancy would be deemed to be from month to month. If in such a case the landlord accepted rent for seven months successively for the period after the notice to quit the circumstance goes to show that the landlord intended to treat the terminated tenancy as continuing. Case law discussed.
37.Apart from the above decisions, this Court cites the following decisions:
(a)In Saleh Bros. v. K.Rajendran and another, AIR 1970 MADRAS 165, at Page 165 and 166, it is held as follows:
The law relating to waiver of forfeiture and waiver of notice to quit, I am of the view that the law is the same in England and in India : (1912) 24 Mad LJ 263 and AIR 1968 SC 471, Rel. On AIR 1957 Cal 627, Dissent. From.
The principle underlying Section 112, that after the landlord had elected to avail himself of the forfeiture and had given notice in writing to the lessee of his intention to determine the lease and followed it up by a suit in ejectment there is no waiver, would equally apply to Section 113 where the landlord has instituted a suit in ejectment, preceded by the issue of notice determining the lease. The absence of a corresponding proviso, in Section 113 is, of no significance and does not manifest any intention on the part of the Legislature to make any difference.
Under Section 111 (h) the lease is determined on the expiration of the notice which can be given by the unilateral choice of one of the parties, there being nothing further to be done by the other party. The issue of such a notice, of its own force and without anything more, after the expiry of the period, determines the lease.
Acceptance of rent which has become due since the forfeiture is regarded as waiver of forfeiture under the main operative portion of Section 112, because the acceptance of rent is an affirmance that the lease was subsisting at the time when the rent became due after the forfeiture. But this acceptance of rent, after the suit in ejectment is filed, is not regarded as a waiver, because, once the matter has come to the Court, the election has become irrevocable. The only thing necessary under the second proviso is that there must be an unequivocal demand for possession in a proceeding instituted in the Court.
The principle that once an election has been made and the lease determined the election is irrevocable, would apply even when the election is not followed by a suit in ejectment and if the lessor had merely given a notice in writing of his intention to determine the lease as provided in Section 111 (g). If rent is subsequently received by the lessor, the rights of the parties will have to be determined in accordance with the provisions of Section 116 of the Transfer of Property Act. The determination of the lease referred to in Section 116 will certainly include the determination of he lease as a result of the lessor electing to take advantage of the forfeiture and determining the lease by giving notice in writing under Section 111 (g). Once the lease is determined by the issue of the requisite notice, a contractual relationship thereafter can arise only with the consent of both the parties. The irrevocable character of the election must follow in either case.
The plain language of Section 113 indicates that a waiver does not ipso facto result from any act of omission or commission on the part of the lessor, but the act must be such as clear evidence of the lessor's intention to treat the lease as subsisting. It is the intention of the lessor to treat the lease as subsisting which is the predominant and deciding factor in bringing about a waiver and not any particular act by itself. Illustration (a) must, therefore, be understood and applied in consonance with the principle underlying the section with due reference to the intention of the lessor. There is no warrant for the view that me e receipt of rent, whatever may be the intention of the lessor, should of its own force, divorced from the circumstances of the case, be regarded as amounting to a waiver.
Section 113 consists of two limbs:(a) the express or implied consent of the person to whom notice is given and (b) "the act of the person giving the notice showing the intention to treat the lease as subsisting." In order to constitute a waiver, both the limbs must concurrently operate, which means, that an act by itself and of its own force, without reference to the intention of the parties, cannot bring about a waiver. So much is quite clear from the plain language of the section, which embodies the basic principles, and I find no justification for reading the Illustrations as being repugnant to the section. Every effort should be made to interpret the Illustration in conformity with the main section. The principle underlying Section 116 of the Act will also apply in applying Section 113 as this is also a case of continuance of the lease restoring the old tenancy.
The preponderance of the weight of authority is that in addition to the receipt of rent by the landlord there should be proof that the receipt was with the intention to treat the lease as subsisting. According to the decisions, there should be either an express contract or conduct of the parties justifying the inference that, after the determination of the contractual tenancy, the landlord's intention was that the occupation of the premises was as a tenant. Whether the conduct of the party justified such an inference would undoubtedly turn upon the facts and circumstances of each case. AIR 1926 Cal 763. Dissent. From.
The circumstance that in the receipts issued by the owner, the word 'rent' is used is not decisive of the question. Case Law referred.
(b)In Padam Chand Garg v. Atar Singh Rikshawala, AIR 1972 ALLAHABAD 217, it is laid down that Where pending Second Appeal against dismissal of ejectment suit landlord writes to the tenant that he would withdraw the appeal and that the tenant should pay him rent due till then within 30 days, failing which he would be liable to ejectment the only inference possible is that the landlord waived first notice of termination and created a fresh tenancy in favour of defendant.
(c)In Sudhir Kumar Paul v. Sm.Indu Prova Ghose and others, AIR 1976 CALCUTTA 274, at Page 276 in Para 9, it is observed and held as follows:
9.Mr. Mukherjee next contended that his client should be treated as a statutory tenant within the meaning of Section 2 (II) of the West Bengal Premises Rent Control Act, 1950 and the contractual tenancy ceased to subsist as and from the date of the expiry of the first notice. We have already pointed out that the, earlier notice in the instant case had been waived. Consequently, the question of a statutory tenancy having come into operation did not arise. We may in this connection refer to the decision of the Supreme Court in the case of Ranjit Chandra Chowdhury v. Mohitosh Mukherjee, (AIR 1969 SC 1187). Mr. Mukherjee sought to rely on the decision of the Supreme Court in the case of Ganga Datt Murarka v. Kartick Chandra Das, (AIR 1961 SC 1067) and drew our attention to the observation made by the Supreme Court at page 1069 where it was observed that it was well settled that where a contractual tenancy to which the Rent Control legislation applies, has expired by efflux of time or by determination by notice to quit and the tenant continues is possession of the premises, acceptance of rent from the tenant by the landlord after the expiration or determination of the contractual tenancy will not afford ground for holding that the landlord had assented to a new contractual tenancy. The Supreme Court there followed the earlier decision of the Federal Court in the case of Kai Khushroo v. Bai Jerbai, (AIR 1949 FC 124). Ganga Dutt's case came to be interpreted by the Supreme Court in Ranjit Choudhury's case (Supra) and the Supreme Court pointed out that landlord accepting rent after termination of a tenancy does not assent to the creation of a new contractual tenancy tout to the continuation of the old tenancy. Their Lordships thereafter referred to Happy Homes' case (AIR 1968 SC 471) pointing out 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. In the instant case, as we have already pointed out, there was implied consent on the part of the tenant to waive the first notice, with the result the old tenancy must be deemed to have continued and by the subsequent notice, that tenancy was sought to be terminated. In Ranjit Choudhury's case, the tenant was served with a notice to quit dated August 11, 1955 requiring him to quit and vacate with the expiry of the month of August, 1955. Thereafter the landlord accepted rent upto September, 1955 and went on accepting rent from November, 1955 to February, 1956. Thereafter he served the second notice on February 9, 1956 requiring the tenant to quit and deliver up possession with the expiry of the month of February, 1956. The Supreme Court held that the landlord by accepting rent did not expressly assent to the creation of a new tenancy but the old tenancy continued, presumably under the same terms and conditions. We have already referred to the fact that the tenant appellant in the instant case before the expiry of the period referred to in the first notice, indicated his intention to continue in occupation of the premises thereby impliedly consenting to waive the notice and had actually continued in occupation of the premises after the expiry of the period stipulated: in the said notice and the landlord by issuing a subsequent notice on May 10, 1955 indicated his intention to treat the old lease as subsisting. The contention of Mr. Mukherjee that the appellant became a statutory tenant after the expiry of the first notice cannot, therefore, be accepted.
38.In Padam Chand v. Atar Singh, AIR 1972 All 217, it is held that the issuance of a second notice to quit operate as a waiver, as it shows that the lessee may rightfully remain in possession after the expiry of the first notice. The waiver of the notice is a bilateral act, showing an ad idem to continue the old contractual tenancy despite the notice.
39.In Mohanlal v. Vijai Narain, AIR 1961 Raj 136, it is held that if however the first notice is band in law, it has no operation whatsoever and does not call for any waiver.
40.When the person who issues the first notice, later, gives the second notice, the issuance of second notice is a waiver of first notice insofar as the person giving the notices is concerned.
41.In New India Assurance Company Limited v. Ghanshyam Das, AIR 1997 ALL 383, it is held that 'mere acceptance of sum under protest by landlord did not amount to waiver of notice in the absence of part of landlord's intention of continuing the tenancy.
42.One cannot brush aside the ingredients of Section 116 of the Transfer of Property Act, 1882, which refers to the effect of 'Holding Over'.
43.Section 116 places an important role after the determination of Lease. Firstly, the Lease must be determined. Thereafter, the principles of Holding Over will apply.
44.In Bhuneshwar Prasad v. Univer Commercial Bank, AIR 2000 SC 2796 (2798), it is held that the basis of Section 116 of the Transfer of Property Act is that a landlord is entitled to file a suit for ejectment and obtain a decree for possession and therefore, his acceptance of rent after expiry of lease is an unequivocal act referable to his desire to assent to the tenant continuing possession.
45.The effect of the second notice to quit under Section 113 of the Transfer of Property Act or a waiver of forfeiture as per Section 112 of the Transfer of Property Act is that the determination of the Lease under Clauses (a) and (b) of Section 116 of the Transfer of Property Act, does not take effect, because it is waived and the previous tenancy continues as before. The previous tenancy does not run as a fresh tenancy, but is the same as the old tenancy, as per decision Kamaksha v. Parwatibai, AIR 1960 Madhya Pradesh 192.
46.The term 'Holding Over' is employed in the meaning of retaining possession, as opined by this Court. If a tenant remains in a possession after determination of lease, the common law rule is that he is a tenant on sufferance. However, there is a difference between the tenant continuing in possession after the determination of the lease without the consent of the landlord, and a tenant doing so with the landlord's consent. The former one is called as 'tenant by sufferance', as per English law and the latter, group of tenants is described as a 'tenant holding over' or a 'tenant at will'. 'Holding Over' is equivalent to the retention of possession after expiry of lease/determination of lease but with the consent of the landlord whereas, on similar attendant circumstances, if the possession is without the consent of the landlord then, the same will come under the category of a 'tenant under sufferance'.
47.To bring a new tenancy into existence as per Section 116 of the Transfer of Property Act, there should be an agreement that on one side, there should be an offer of taking a fresh demise evidenced by the lessee's continuing occupation of the property after the expiry of the lease and on the other side, there must be a definite assent to this continuance of possession by the lessor/landlord, and that such an assent of the landlord cannot be assumed in the matter of tenancies to which the rent controls Acts apply by virtue of the immunity by eviction which a tenant enjoys even after the expiry of the lease. A tenancy of holding over is a creature of a bilateral, consensual act, and does not come into existence by a mere unilateral intendment or declaration of one of the parties.
48.A tenant continuing in possession after termination of the Lease cannot be dispossessed except by an authority of Law.
49.In V.Dhanapal Chettiar v. Yesodai Ammal, AIR 1979 SC 1745, it is held that once the tenancy of the lessee has been duly terminated by a notice, it would be wholly redundant to require a second notice to be issued to the lessee expressly mentioned the ground of forfeiture occasioned by denial of title.
50.Mere continuance in possession after determination of the term of the lease does not create a tenancy by Holding Over. The Lease must also prove that the Lessor accepted the rent or otherwise assented to the Lessee's continuance in possession as per Mohamed Ahmed Amohi v. Nirmal Chandra Roy, AIR 1978 Cal 312.
51.In Shri Sangameshwara Swamy Temple, Sangamjarlamudi, rep. by its Chairman v. The Principal Distt. Munsif, Tenah, (1997) 1 An LT 779, it is held that 'The principle of tenancy holding over under Section 116 of the Transfer of Property Act is applicable to tenancy law, which was applicable to temple lands would continue to be operative.
52.The word 'Rent' is not an inclusive one. The term 'Rent' in ordinary parlance specifies a return in money or kind for enjoyment of a specific property held by a person from or under another. It is a periodical payment on specified occasion.
53.The payment made in relation to the occupation of a property which in parties eyes and in law, are regarded as a 'Rent'. After all, the rent means the agreed rent or the actual rent and not a fair rent, as opined by this Court. Further, any unilateral or self-serving increase of monthly rent in respect of a demised property by the Appellant/Landlord without the assent or consent of a tenant, cannot be term as 'Agreed Rent' or 'Actual Rent' in the eye of law, as opined by this Court.
54.As far as the instant case on hand, PW1 has clearly deposed that Ex.A.2 notice dated 20.11.1987 has been issued to the Respondent/Defendant. Further, DW1 has also deposed that they have issued reply notice to the notice issued by the Appellant/Plaintiff dated 29.09.1976 and further, they have issued a reply notice dated 09.08.1984 to the notice issued by the Appellant/Plaintiff, dated 01.08.1984 and finally only the Appellant/Plaintiff has issued Ex.A.2 notice, dated 20.11.1987, for which they have issued a reply notice etc., and thereafter, the Appellant/Plaintiff has received the rent paid by the Respondent/Defendant.
55.Obviously, from September 1976 and thereafter during August 1984 and later in December 1987, the Appellant/Plaintiff has caused issuance of notice to the Respondent/Defendant and the Appellant/ Plaintiff has received the old rent of Rs.85/- paid by the Respondent/Defendant to the Temple.
56.Be that as it may, on going through the Ex.A.2 notice dated 20.11.1987, this Court is of the considered view that the Appellant/Plaintiff has referred to the Fair Committee fixing the fair rent for Plaint schedule building at the rate of Rs.150/- per month from September 1976 and that the Respondent/Defendant has been in arrears till October 1987 of a sum of Rs.9,520/- and that it has not settled the matter and has accumulated huge arrears of rent and that the Appellant/Plaintiff has determined the lease with the midnight of 31.07.1987 and further, the Respondent/Defendant has been called upon to hand over the vacant possession of the premises on the next day. As per Section 113 of the Transfer of Property Act acceptance of rent may amount to waiver, if a landlord accepts the rent for a period after issuance of notice. In the present case on hand, as spoken to by DW1, the Appellant/Plaintiff has issued notice to the Respondent/Defendant even as early as on 29.09.1976 for which a reply notice has been issued by the Respondent/Defendant and again, for the notice issued by the Appellant/Plaintiff dated 01.08.1984, the Respondent/Defendant has issued a reply notice dated 09.08.1984 and lastly, Ex.A.2 notice dated 20.11.1987 has been issued by the Appellant/Plaintiff to the Respondent/Defendant, etc.
57.The acceptance of rent after issuance of notice dated 29.09.1976 by the Appellant/Plaintiff shows an intention on its part to treat the lease as a subsisting one and therefore, this Court, on the facts and circumstances of the case, holds that the conduct of the Appellant/Plaintiff in accepting the rent paid by the Respondent/Tenant, amounts to waiver and also by the conduct of the Temple, the intention to treat the lease as subsisting is quite manifest and very much floats on the surface by taking a conspectus look at the attendant facts and circumstances of the case in an integral fashion. Viewed in that perspective, the substantial question of law is answered against the Appellant/Plaintiff.
In the result, the Second Appeal is dismissed leaving the parties to bear their own costs. Consequently, the Judgment and Decree of the Learned Additional Subordinate Judge, Nagapattinam in A.S.No.99 of 1996, dated 20.09.1996, as well the Judgment and Decree of the Learned District Munsif, Nagapattinam in O.S.No.107 of 1992, dated 04.01.1995, are confirmed by this Court for the reasons assigned in this Appeal.
12.03.2012
Index : Yes/No
Internet : Yes/No
mps
To
1.The Additional Subordinate Judge, Nagapattinam.
2.The District Munsif, Nagapattinam.
M.VENUGOPAL.J,
mps
Pre-delivery Judgment in
S.A.No.1631 of 2001
12.03.2012