Karnataka High Court
Mr Haneef Sait vs Mr Syed Asif on 23 June, 2010
Equivalent citations: 2010 (3) AIR KAR R 676
Author: A.N.Venugopala Gowda
Bench: A.N.Venugopala Gowda
IN THE HIGH couRT OF KARNATAKA AT _
DATED Tl-EIS THE 23"' DAY or J0 _ '
BEFORE
THE l-EON'BLE MR. JUSTICE -..t_\__..N. v5,,N'uGoR»A'Lg.f:c;ovii;DA ff.
REGULAR FIRST ARiR.é:AL..uNo.7s§/21016,
BETWEEN: i ' it 0 Z
S/o. Mr.Ibra_h.i--mvS_ait;._ V '
R/a No.7, "'-!lIhi:te' Hogu-se"'_, 15' Main',
15' Brock,H.£3.VR*.-V-Layoiut, '
Bangalore..,,-'?5ES',0 043., ..
Mr. Haneef Sait, aged,..4.S_yeats,:,g 0 it
, ,. ,- _ ...APPELLANT
(By fsri G,R;l\rl~vohVa'n,, Adv.)__ _ *
AND: " "
M if. ' Eyed Rsif! 'aged '"34 "yea rs,
l\{1r.Syed EJ'aw_oo'd,
No'.52,'.0, "Modi Residency",
' i°iil.ler.s Road', Benson Town,
. B_ariga'l'oije 55-60 046.
RESPONDENT
A('E5_y Sf': 'i<,i.i4{Tishna, Adv.) .0 iv.Ti:'his RFA is filed under Order 41, R~1 of CPC, against the judgment and decree dated 17.2.2010, passed in
-..V"OS.No.17200/2006 on the file of the XXVI Addl. City Civii 'Judge, Mayo Hall, Bangalore, decreeing the suit for ejectment and damages.
This appeal coming on for admission this day, the Court delivered the following:
JQDGMENT This is an appeai by the _defenda_:"tt"'ch:ail.engi'ng decree of the Triai Court ordering iji'is..jejectrne'nt'"irenj*::t_he suit premises which is in 'h_is-occupation as"'the....ten3ant oi' the plaintiff.
2. It is a 'the defendant was a tenant of thie'p_iainf:if'f'a'n{;l thefr.erat- the premises in his occupation' 1'6.,:Q_§:3;O/-- p'erf_month. It is not in dispute thatithe plainvtifff3s.erv.ed-.__a .notice dated 18.9.2006 (Ex.P1) on the clefendantejV.gtern2l:na'ting his tenancy after expiry of fift;een_daygr., Pxgrieodeevfroeni the date of service of notice and that on failure to do so, legal action will be 'Vtaken:jrvjhefnetice having been served on the defendant, a reply y_§date7dAl6.10.20O6 (Ex.P3), enclosing with it, a cheque for 'es:.16,000/--, being the rent for the month of ~..V'VE3.e.ptember, 2006, was sent. The defendant did not vacate .r§the premises even after expiry of the period allowed under the notice (Ex.P--1) and therefore, suit 'gas instituted on 9.11.2006.
3. Written statement was fiied contesting.,frs~e suit, wherein, it was alleged that, on account of with the demand for more advance and enhan.,ced_i."re'rit,l' t~h_eI plaintiff caused the iegai noticezzonl frivoi'o_us'Aan_id--.ve:xati,_oi:s if ground, with an oblique motive toi..ev--i.ct the'..'de'fendaint"andp to iet out the suit premise'si.:t'o third".pe'rsons}:for higher advance and rent. ."Cther_.~'ail¢'g.,§fi§'ri-s, made in the plaint were denied. On accoun-t'V_o'f"fthé made to the plaint,'"'*ad:d;itioVnai-- "written"statement was fiied on 29.01.2010'.
_ .. 4,. 'V i'»he"iiriai'Court raised the following issues:
*..i_) Does plaintiff prove that he has vaiidiy V K terminated the tenancy of defendant? A '.'~"ii'j_'V.i5i)V Does defendant proves that this Court 'V has no jurisdiction to try the suit?
iii) Whether plaintiff is entitled for the reiiefs claimed in the plaint?
iv) What Decree or Order?
5. Piaintiff deposed as PW.1 and Exs.P1 to P4 were marked. For defendant, DWs.1\®and 2 deposed. /' Written arguments were fiied by both Considering the rivat contentionsfiand after»vappreeiationllofy"V-_V the evidence,- the Trial Court h._eEd:_-~tthat';athe'''p'i'a*iifst.i\tf~:Ahas '' validly terminated the tenancy ofwlthe' defen'dantV_VVan_d the defendant has failed Court has no jurisdiction to try the...suit;*A.V:anyd .Vl'tre1aotiil"t:'r-.e_ piaintiff is entitled for the relief cg|.aimedA_in--.th:e decreed and the defendé3':n't'é}{y'ia_s directed possession of the suit prer€r1.i,s.e\ig;V:t_o 3 months, by paying from the date of suit till handgilng 'possession after deducting the payrnentsxmadelduring the pendency of the suit. Feeling detendant has filed this appeal.
G.R. Mohan, learned advocate, appearing for .the_ appeliant, contended that, the plaintiff's suit could : 'mt have been decreed because:
(i) The notice -~ Ex.P1 was invalid for the purpose of 5.106 of the Transfer of Property Act ('The Act' for short). K3
-4'.
(ii) The notice to quit was waived'--i:'b~yg"'*..the plaintiff by reason of accepi_a.nc'e.',j'g'~of cheque for Rs.16,000/-- _senjtV..Vva~!o:ng with E>c.P3 and also t,h'e"'r'ent agmount'«.paid~'«'from T V time to time during, th'_e"pend-evincy and the appe-«a_i. 'Learnedfc'olun.sVel .placedi* reliance on thehl"'decisio~n.s"in the case of CHOTtl~..V_MIA,»iiVs;~ ',,:l$1T";"i~.SUND'RIi AIR 1945 PATNA"--26o in/s~fim:A,RV PROMOTERS Vs. ,3_s,A,VA....sA}EN--DAP4A'M°R§i§ii3'? -- 2005 AIR 'f={,ANT;iHc;=z ~i884.Vi we learned counsel for the respondent --_ p'iai.ntiff,,:'contended that:
In U)
(ii) 'iflvvnotice compiying with the requirements of 5.106 of the Act vide Ex.P1 was served on 4"~.V"_;.the defendant giving fifteen days' clear notice to vacate the premises, which was acknowledged and in view of the reply sent as per E><.P3, the suit was instituted.
The cheque sent aiong with Ex.P3 is rental arrears due for the month of September, 2006, which the plaintiff accepted and encashed under protest a d a specific reply /,9 (V)
8. (5) factual foundation for it pleadings. In the absence .o_f:a~-n appropriate' pleading and a di'st'inct issue, jthere 'canVl'be'j' it no adjudication. ' The questior:.._Tasg to" w.hethj'eru7.th'e" person giving__ the not.ice-_h'as by.' his,_act7 shown an indication_to__treat"t.he.'iease as subsisting is essentigaiiy /of fact and in _ ga_:'conci~:;ision the said aspect of rnat_te.r, --t"I'lA9V,'v must consider ail angdllcircumstances and the rnere thatwrleint has been tendered and ' Court during the pendency _4 V V'of.'the* p'r_;oceedings cannot be determinative 'V _:in'1asx'much as the plaintiff filed / instituted A 't'h"e"s'uit and prosecuted the suit for relief which shows that he never intended to waive the notice to quit and treat the lease as subsisting. Support was derived from the decisions of the Apex Court, to which a reference would be made hereunder.
The foiiowing points arise for determination:
Whether, there is a valid termination of tenancy of the defendafi under Ex.P1? /
(ii) Whether, the plaintiff waived hi4s..vv_ri.ght by accepting the amount paid by t_h.e*defe'nd'ant aiong with the_ reply notice -- Ei;.P3i»fafnd --'els'o the amount paid mo_nthly, the.. 'Courts,' during the pendencyof the"m=atter?~..
Re: Point (i):
9. Under $.10? oi7_t'h.e Act,'-atlease':'ofjivmmoiveablév property from year to year_o_r":fo_r -any't'erm_'iexceeding one year can be made instrument. Any lease of this 1-cind wiouidhbe is created by a registered. of immoveabte pro a registered instrument or by arinoral' accompanied by delivery of possession, ..,V;ndi'spu'tedly, the lease of the suit property by ._the in of the defendant was for 11 months. lease agreement between the parties, has not' b_een,lA.iproduced. However, there is no dispute that, the , lease...was on month to month basis and for a term not "--..V"--ext:eeding one year. It is not the contention of the defendant that his lease was from year to year or for a period exceeding one year in which event, the lease could have been only by a registered instrument. The /;
' .-ble.ya'=.le'ase:'"from year to year terminable by six months contention is that, the lease term exceeded one year, since the lease agreed on 16.02.2005 for 11 mon_ths:,-«._,'_l'-was extended subsequentiy for 6 months and termination of tenancy effected un.de_r Ex;P'1"a.las'V'r'iot'.Valid".". The contention is unacceptable. lease_fro_m month to month and the l'nitia_lly agreedpelriordbeing for a term exceedirig, One yrc_-;§_.-_§"r:,..,_i_s'~lriot lihndisputle. Hence, the deeming provisionslof, the :first"'*Pjar;'t'io,f_ S.106 of the Act, cannot be attracted in"tl':e.fpre'se»nt'case'. inter alia, that in the absence of a contract betwAe.esn«...the parties, a lease of immoveable __for man.i._.ifacturing purposes shall be deemed to I .' inotice.' the present case, there is clear admission that, the..lea_se in question was not from year to year or for a x_ije--r,iod exceeding one year. The lease in question will fail in the second half of S106, requiring fifteen days' notice of termination. A lease from month to month or a lease other than a lease from year to year is terminable by 10 fifteen days' notice. Hence, the notice present case, is a valid notice to yqyuit. The in the notice was not comp|ied:=,wit_h,,.§rvh'ich-.,is- c'i'e:ar froiin ' the reply at Ex.P3. It is after.._the expiry of days'. period, the suit for ejectme.nt'ayy'as_»instituted the Court on 9.11.2006. .Henc-e_,fthe;_V:co_nt'ention~regarding invaiidity of the termination is:faiia_cious.B_ hi it Re: point at i5_'1igEluestion of iaw. Waiver is a question' be properly pieaded and proyed.VVV'"~i\loi~ 'uiaiver can be aiiowed to be raised it__is pié'ad..edvand factuai foundation for it is laid in ' In the absence of appropriate pleading, "there can be no distinct issue. Hence, there can be no adjuidiiication of such issue. Adjudication of a dispute by a C"iv,ii Court in a civii suit between the parties are governed by the ruies of pleadings. Indisputediy, the plea of waiver was not taken by the defendant in his written statement or the additionai written statement. Thergis also no ground r 11 regarding waiver, raised in the appeai memorai1dun*j.,,.""V,Sri GR. Mohan, raised the ground oniy during Thus, Sri K. Krishna, is justified ii-n"'obj.ecti_,ng'_.io'rVlthe of waiver being raised for dete.rmir.--at'ion.ll"' merit in the objection raised'-by~~.Sri K". K_ri's.hn'-a,'V;s,ti"i'i',"'I":would' V prefer to examine the .rnerit..o*f the 'contenti'on..
12. In the case.,o_f-.Ci?l.C?iU"M,iA5..'if,s'upra) it was held ' that, acceptance»i'of ha"sacc~rued due subsequent to themfo'rfesiture?jVandpriorltowthe institution of a suit in ejectrhent operates 'ias.,waiver of the forfeiture. ' l' 13. V In case of M/S.AMAR PROMOTERS (supra), l_vesst3V%:r"~.{veceived the rents tendered by the appellants ._ tAo'~t'i'me, during the pendency of the suit, without p'r'eju.d:ice:"to its suit claim. Question l\io.III considered V is .reads'"as foliows:
"Whether receipt of rent by the piaintiff/iessor, accruing subsequent to suit, would resuit in a waiver of forfeiture, even though such receipt is deciared to be "without prejudice to the suit clairn"? , .
If 12 Considering the rivai contentions it was held . "Rent" as defined under Section 10_S'is the consideration under a ;cont_ra'ct ' termination of the,cont'ra_c't-_,_3-- contradiction in te'rms..,_ toA"receiv'e_ further' consideration. The iessbrhaving"c.hosenV}to recover damages or cotr'I'aens'atio,An" forbuge andlocvcupation of the premises, under"iti§e:" of the iessee, seeks todo softhlroujghi'thVie_V_med:i.u*m of the Court. A volu4ntarv}'i'a__rid,w'independe.ntfact" on the part of the iessor.;:_t'o,'V.re'ceive7.'jsurn.s= p'a,id'las rent by the lessee b*é::i§t.;a--pp'rop-riatéd'was being compensation for tuse' ando-cjcup'alti,oi:.. which has not been determined or._gco,ns'id~er'ed* Court. Hence receipt of "rent"
accruing'..s'ubseqb.ent to suit would amount to a ,_.wai,ver Ao'f~vfo.rfeiture as contempiated under Section 1«12,:of. the T.P.Act. Receipt of such rent stated to be E".
if 'V-,w--itVho.Au-t.--iprejudice to the suit claim is immateria The s'aid'question was answered as foliows:
"Receipt of rent subsequent to institution of suit, even though stated to be without prejudice to the suit claim, results in waiver of forfeiture even if it couid be said that such a forfeiture was irnpiiedly averred in the suit". \Q/K Z , J 14 2905, one of the contentions urged by the iessee' on expiry of origina! period of lease, acce*ptan,ce.:o--fV rentq cieariy showed an 'assent' on i;he,_-part "oft the"i'e:ssoir::,s_t«o continue the tease. Aftereirriahkingjura"referevn'i:§.to 116 of the Act, the Apex Court"'has.,heid 'asiiifoiioysis:
"We fuily a9ree_fwith._ th_e.iHigh':"Court and the first appeiiate Court of period of iease,:..m:er_e ar;A_cepta,rice,xof'_j_V~rent"'§'for the subsequent .the_ie.sseve continued to occupy the 'said to be a conduct signdiifytng_,,V_'a.ssent*.'_to_the continuance of the lessee zeven after'e_xpiiry_::'ofjiease period".
In"-'t.he.»case of c. ALBERT MORRIS vs. ;VK.CH,OiN~D'P._:IXSEKARAN R OTHERS - (2005) 1 scc 228, it * has b¢e:ii*h¢:id as foiiows:
.. are, therefore, of the opinion that mere acceptance of rent by the iandiord, the first respondent herein, from the tenant in possession after the tease has been determined either by effiux of time or by notice to quit wouid not create a tenancy so as to confer on the efiatwhiie tenant the ./ 16 dismissed and the orders were again questio_n-ed"b'efo~re Apex Court, wherein it was contended that,'i'i~~n7gvi'ewV"of they provision under Section 113 of the the' rent by the respondent/iand_lo~r.d even Vafterivefi'e.ct.i_ng _.notice:* under Section 111, ,__ciause,___4(xiiA).,__an1ount«edLto_V?waiver of notice to quit withinvthxe'me_an%i_ng"offV$:e'cti'on 113 of the Act and it was further in the case was on account: the iandiord, who thereby evincing an intention as subsisting. It was aiso emphaisisied fiiing the suit, the iandiord conti'nL:ed to' the rent tendered by the. tenant and piaced on the decision reported in AIR 1926 The said contention did not receive aR'ccep.tanc'e. It was heid as foliows:
V""i!\ mere perusai of section 113 Ieavesno 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 'Etention to treat the 4 17 lease as subsisting. Of course, the e'xpres'sf--.__.o'r_v implied consent of the person to whonn_js~uch.::notice"is,' given must also be establ.l'shed'.i The-:questioniasllto whether the person olvinclftwhe. _notice-- has by" shown an intention tiotreat the leasei'a'slr..su..bs_i,stino essentially a ciuestionkiof fact.'-. reaching a conclusion on. this a_sfp'ect..'pfV""the rnatter, the Court must consider 'ail _._relevan3t factsyiland circumstances, and the_m_ere Zfact-tihat.rentl.'has"':be.en tendered and acce can he e:te.rrnin a«ti~ve".
the decision in the case of Shanti it-was held as follows:
'l'lin4_'tlhe iVnst"a.nt.- as we have noticed earlier, two gynotilcesyytofguli-t were given on 103' February, 1979 :,.,i-randx17"V*Ma-rch, 1979. The suit was fiied on June 2, tenant offered and the landlord accepted A for the months of April, May and thereafter. V__r'fhe'.~'guestion is whether this by itself constitute an ' " pact on the part of the landlord showing an intention to treat the lease as subsisting. In our view, mere acceutance of rent did not by itself constituted an act of the nature envisaged by section 113. Transfer of Prooertv Act showing an intention to treat the lease as subsisting. The fact remains that even after accepting the rent tendered, Ce landlord did file a
-/7 18 suit for eviction and even while prosecutin'g-«l.th--e__'3sa_id_ accepted rent which was being lthep' tenant. It cannot, therefore, A' be {said that by ' accepting rent, he intended to:iwaiv'e 'the no"t:.cei1.to quit and to treat thevlease asrsu"bsisti.i1'g;yV; c_ji;an'no_t'*. ignore the fact that event, e~.«.-en rent was neither tendered" nor',-accepted, theiandlord In the event of success wo.uid l3;ye:Veritgiti:ed.ypto the payment of the arrears of rent;_ '-To'V.avpoid"~a'n'§?.."'controversy. in the event.of'tet_r_L1ji_i_jiation..~of"!e:asie«..the"bVractice followed by coL='rts"'p_'«is:~i:o__ per-mi~t_ V_t'h_e:«'_:iandiord to receive each co.mpe;'nsatIon for the use and _o_c_cuAoa'tiinn_::'of the"-so_'rennises. an amount equal to the Amo'nthlv.w.r'e_l:ntl'i3avab'le by the tenant. It cannot. _ therefore'. -_be "said that mere acceptance of rent it iamounts..V:tpv;', waiver of notice to quit unless there by E""'lanv'*«other evidence to prove or establish that the it _"i».an':liiord.so intended. In the instant case, we find no or circumstance to support the plea of . ''--.wa'iver. On the contrary the filing of and prosecution V--of the eviction proceeding by the landlord suggests otherwise".
(Emphasis supplied) In view of the categorical declaration of law by the Apex Court that, "a mere acceptance of rent does not 2/ 3.9 amount to waiver of notice to quit, uniess there"is"--«oth'er evidence to prove or establish that intended", with respect, I wouldirriie.iiow.'_"the"'ratio' lawu' .1 declared by the Apex Court, wh'ieh7li_Ancidelnta'iiy_ point of time, to the two..::d;;cisio"ris_ (svupjrahfon 'which' Eearned counsel for the appeill~ant--pl'a.ced reli--anc,ef
19. Indisputediy,'-1peiaintiff sa'e::il\,§',_:__.:«§jl"'t,'e;-rmination notice dated terifnin-athinlg the tenancy of the defendant atfjt"e_r'V'efit-piry5'ofu"i'5.'..da\,{s'*period from the date of service defendant was liable to pay the rent for'*th%e~."ot_".~'iSeptember 2006. The defendant on 0.l6fi0.._Z.Q06 (Ex.P--3). Along with the said repiy, ' aha.1fo_rw.arideid_ the cheque for Rs.16,000/-, being the rent 'Kf.o'r' of September 2006. By accepting the rent or seeteihber zoos, the plaintiff did not waive his right. 2 instead, he instituted the suit on 09.11.2006. In the light of the said circumstances and the decisions of the Apex Court noticed supra, it has to be heid that, mere acceptance of rent after the period o%ermination of / I 20 tenancy does not amount to waiver of notice to ..q:ii't«.»_l'-The defendant has not proved the fact that, rent of September 2006, the piain.tif_f_wai-veld the other hand, the rent receivecfawafs during which the defendant's'"tenancy :su.b_si'stlefig~.....1t only."
after expiry of 15 days pergipodfl'andw»__after of notice (Ex.P-1), the terminla'tiuo'n..tool§'elffé¢i_..lg.'e,,'Vin the month of October 2006_.=-- V_.Defe'nci'a~rl't 'nor the 'plaintiff received to the institution of the The suit was fiied and activeiv"V--p:rosecute'd' foribejectment of the defendant. By mere accept'a.ncel of rent tendered in the court during 'p_elr1dencyl: "ofvthe matter, plaintiff did not intend to waive and treat the lease as subsisting. Point No.2 answered accordingly.
if the result, I pass the following:
0 R D E R For the foregoing reasons, this appeal is devoid of merit and hence, the same shall stand dismissed. Since the appellant has been in possession of tlxe premises, he / J( 21 should have some reasonable time to vacate the --p"rerniys'e,s. Hence, I direct that the decree for ejectmer:-ft:
executable against the defenda:rit"";'---appellant*VI.u,n"toi',.3'1.?' Oct. 2010 on condition that, the appe-'l_|lant to the respondent, regularl'y,,"'i*=rom "rnonth"to""..ffi'o~a'"it'h, and? amount of Rs.16,00Q,!; as and y§ra,y of «damages for use and occupation of the"oremi.ses:; fnlaintiff shall refund the security the date the .possession'Vc§«'gliyered by the defendant. It is:'--,rna_d-exV'cl--ear_:"that,_if~...t_l;ere were to be any arrears of damages4'piaya'iele',"..tii.e"pllailntiff is at liberty to deduct such arrgount and"refund the baiance amount.
--._I'ri the circumstances of the case, there will be no " order asto 'costs.
sal-
:UDG.E sac* Ksj/-