Karnataka High Court
Sri Jaleel Sab vs Sri M Surendra Nayak on 22 March, 2016
Author: A.N.Venugopala Gowda
Bench: A.N.Venugopala Gowda
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 22ND DAY OF MARCH, 2016
BEFORE
THE HON'BLE MR. JUSTICE A.N.VENUGOPALA GOWDA
REGULAR SECOND APPEAL NO.1698/2014
BETWEEN:
Sri Jaleel Sab,
S/o. Sri Hassan Sab,
65 years, Vegetable Merchant,
R/o. N.J. Manzil, I Cross,
Tippu Nagar Right side
Shimoga - 577 201.
...APPELLANT
(By Sri Mohan Kumar T., Adv.)
AND:
Sri M. Surendra Nayak,
S/o. Sri Rangappa Nayak, 52 years,
R/o. Seebinakere
Thirthahalli Taluk,
Shimoga District - 577 432.
...RESPONDENT
(By Sri B.S. Prasad, Adv.)
This RSA is filed under S.100 of CPC against the
Judgment and Decree dated 07.06.2014 passed in
R.A.No.55/2013 on the file of Senior Civil Judge and JMFC,
Thirthahalli, dismissing the appeal and confirming the
Judgment and Decree dated 10.04.2013 passed in
O.S.No.97/2010 on the file of Additional Civil Judge and
JMFC, Thirthahalli.
2
This RSA coming on for admission this day, the Court
delivered the following:
JUDGMENT
This appeal has been filed against the decree dated 07.06.2014 passed in R.A.No.55/2013 by the Senior Civil Judge and JMFC, Thirthahalli, by which, the judgment and decree dated 10.04.2013 passed in O.S.No.97/2010 by the Additional Civil Judge and JMFC, Thirthahalli, was affirmed.
2. Heard Sri Mohan Kumar T., learned advocate for the appellant and Sri B.S. Prasad, learned advocate for the respondent and perused the record. There is delay of 66 days in filing the appeal. I.A.No.1 was filed for condonation. Having regard to the facts stated in the affidavit, I.A.No.1 is allowed and the delay in filing the appeal is condoned.
3. Suit was instituted to pass a decree for recovery of possession, damages and cost. By filing written statement, suit was contested. Based on the pleadings, 8 issues were raised. During trial, the plaintiff 3 got himself examined as PW.1 and marked 7 documents as Exs.P-1 to P-7. The defendant got himself examined as DW.1. After appreciation of the record with reference to the rival contentions, suit was decreed.
4. The defendant, feeling aggrieved by the said decree filed an appeal under Section 96 r/w Order 41 Rule 1 CPC. Having regard to the rival contentions and the record of the suit, following points were raised by the learned Appellate Judge for consideration:
"1) Whether the appellant proves that the order under appeal is opposed to law, facts and probabilities of the case pleaded and hence it needs interference by this Court?
2) What Order?"
5. On independent assessment of the evidence, the appeal was dismissed by a judgment dated 07.06.2014 and the decree passed by the Trial Court was affirmed.
6. There is no dispute with regard to jural relationship between the parties. There is also no dispute with regard to the non-payment of the rent for the period 4 from 03.03.2008 to 03.04.2010. Prior to the institution of the suit, there is lawful termination of tenancy.
7. By placing reliance on the decision reported in AIR 2015 KARNATAKA 128, learned advocate for the appellant contended that the appellant having remained in occupation of the suit premises, continued to pay the rent i.e., after service of quit notice and the same having been received during the pendency of suit and also the first appeal, there is waiver and hence the impugned decrees are liable to be interfered with.
8. In HANEEF SAIT Vs. SYED ASIF, reported in (2011) 1 Kar.L.J. 258, an identical contention was considered by raising the following point for determination:
"8(ii) Whether, the plaintiff waived his right by accepting the amount paid by the defendant along with the reply notice - Ex.P3 and also the amount paid monthly, in the Courts, during the pendency of the matter?"
The said point was answered as follows:
"11. Waiver is not a pure question of law. Waiver is a question of fact and must be properly pleaded and proved. No plea of waiver can be allowed to be raised unless it is pleaded and factual foundation for it is 5 laid in the pleadings. In the absence of appropriate pleading, there can be no distinct issue. Hence, there can be no adjudication of such issue. Adjudication of a dispute by a Civil Court in a civil suit between the parties are governed by the rules of pleadings. Indisputedly, the plea of waiver was not taken by the defendant in his written statement or the additional written statement. There is also no ground regarding waiver, raised in the appeal memorandum. Sri G.R. Mohan, raised the ground only during the arguments. Thus, Sri K. Krishna, is justified in objecting for the ground of waiver being raised for determination. Though I find merit in the objection raised by Sri K. Krishna, still, I would prefer to examine the merit of the contention.
12. In the case of CHOTU MIA, it was held that, acceptance of rent which has accrued due subsequent to the forfeiture and prior to the institution of a suit in ejectment operates as a waiver of the forfeiture.
13. In the case of M/s. Amar Promoters, the lessor received the rents tendered by the appellants from time to time, during the pendency of the suit, without prejudice to its suit claim. Question No.III considered reads as follows:
"Whether receipt of rent by the plaintiff/lessor, accruing subsequent to suit, would result in a waiver of forfeiture, even though such receipt is declared to be "without prejudice to the suit claim"?
Considering the rival contentions it was held as follows:
""Rent" as defined under Section 105 of the Act is the consideration under a contract of lease. Upon termination of the contract
- it would be a contradiction in terms to receive any further consideration. The lessor having chosen to recover damages or compensation for use and occupation of the premises, under the occupation of the lessee, seeks to do so through the medium of the Court. A voluntary and independent act on the part of the lessor to receive sums paid as rent by the lessee cannot be appropriated as being compensation for use and occupation which has not been determined or considered by the Court. Hence receipt of "rent" accruing subsequent to suit would amount to a waiver of forfeiture as contemplated under 6 Section 112 of the T.P. Act. Receipt of such rent stated to be without prejudice to the suit claim is immaterial".
The said question was answered as follows:-
"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 could be said that such a forfeiture was impliedly averred in the suit".
14. Article 141 of the Constitution provides that the law declared by the Supreme Court shall be binding on all Courts within the territory of India. The principle underlying in this Article is salutary in the interest of the administration of justice. The Article promotes certainty and consistency. If there is divergence of opinion between the decisions of the High Courts and the Supreme Court, the decision of the Supreme Court is binding on the point.
15. The real question which has to be decided is, whether the later judgments of the Supreme Court, wherein the law has been declared are applicable to the case in hand or not? If on that point, the finding is in the affirmative, it may have to be held, with respect, the law laid down in the two decisions supra, need not be applied, in view of the mandate of Article 141 of the Constitution of India. Law declared by the Supreme Court:
16. In the case of Shanti Prasad Devi and Another v. Shankar Mahto and Others - AIR 2005 SC 2905, one of the contentions urged by the lessee was that, on expiry of original period of lease, acceptance of rent clearly showed an 'assent' on the part of the lessor to continue the lease. After making a reference to Section 116 of the Act, the Apex Court has held as follows:
"We fully agree with the High Court and the first appellate Court below that on expiry of period of lease, mere acceptance of rent for the subsequent months in which the lessee continued to occupy the lease premises cannot be said to be a conduct signifying 'assent' to the continuance of the lessee even after expiry of lease period".7
17. In the case of C. Albert Morris v. K.Chandrasekaran and Others - (2006) 1 SCC 228, it has been held as follows:
"We are, therefore, of the opinion that mere acceptance of rent by the landlord, the first respondent herein, from the tenant in possession after the lease has been determined either by efflux of time or by notice to quit 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. We answer this issue accordingly".
18. In the case of Sarup Singh Gupta v. S. Jagadish Singh and Others - 2006 AIR SCW 1966, the respondent after serving a notice upon the appellant terminating the lease, instituted a suit for eviction on 02.06.1979. Before filing this suit, two notices were given to the appellant on 10.02.1979 & 17.03.1979 and despite notice terminating the tenancy, the respondent accepted rent for the months of April and May 1979 and thereafter. The suit was decreed and the First & Second appeals filed thereafter were dismissed. Special Leave Petition, was also dismissed subject to the liberty granted to the appellant to seek a review from the High Court by moving an application, taking into consideration that although the plea of waiver of notice on the ground of rent having been continuously accepted by the landlord subsequent to the notice to quit was specifically raised in the High Court, it was neither noticed nor dealt with by the High Court. Review petition having been filed in the High Court was dismissed and the orders were again questioned before the Apex Court, wherein it was contended that, in view of the provision under Section 113 of the Act, the acceptance of rent by the respondent/landlord even after effecting notice under Section 111, clause (h), amounted to waiver of notice to quit within the meaning of Section 113 of the Act and it was further contended that, waiver in the case was on account of implied consent of the landlord, who accepted the rent despite the notice, thereby evincing an intention to treat the lease as subsisting. It was also emphasised that even after filing the suit, the landlord continued to accept the rent tendered by the tenant and reliance was placed on the decision in Manicklal Dey Chaudhuri v. 8 Kadambini Dassi, AIR 1926 Calcutta 763. The said contention did not receive acceptance. It was held 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".
Reference was made to the decision in the case of Shanti Prasad and it was held as follows:
"In the instant case, as we have noticed earlier, two notices to quit were given on 10th February, 1979 and 17th March, 1979. The suit was filed on June 2, 1979. The tenant offered and the landlord accepted the rent for the months of April, May and thereafter. 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. 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 said 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. We cannot ignore the fact that in any event, even if rent was neither tendered nor accepted, the landlord in the event of success would be entitled to the payment of the arrears of rent. To avoid any controversy, in the event of termination of lease the practice followed by courts is to permit the landlord to receive each month by way of compensation for the use and occupation of the premises, an amount equal to the monthly rent payable by the tenant. It cannot, therefore, be said that mere acceptance of rent amounts to waiver of notice to quit unless there by any other evidence to prove or establish that the landlord so intended. In the instant case, we find no other fact or circumstance to support the plea of waiver. On the contrary the filing of and prosecution of the eviction proceeding by the landlord suggests otherwise".
(emphasis supplied) 9 In view of the categorical declaration of law by the Apex Court that, "a mere acceptance of rent does not amount to waiver of notice to quit, unless there is other evidence to prove or establish that the landlord so intended", with respect, I would follow the ratio of law declared by the Apex Court, which incidentally is in later point of time, to the two decisions on which learned counsel for the appellant placed reliance."
9. SLP (Civil) No.28446/2010 filed against the said decision has been rejected on 22.11.2010.
10. There is no reference made to the aforesaid decision, while deciding the case reported in AIR 2015 KARNATAKA 128 and hence the same is not a binding precedent. The present case is identical to the case decided by this court, reported in (2011) 1 Kar.L.J. 258.
11. Both courts below have recorded finding of fact with regard to lawful termination of tenancy and the defendant being in arrears of rent. Said concurrent finding does not require interference, as there is nothing on record to show that they are perverse, being based on no evidence or contrary to the evidence on record. 10
In view of the above, I do not find justification to interfere with the impugned decrees. Appeal being devoid of substantial question of law is rejected. However, time to vacate the suit schedule premises and deliver vacant possession by the appellant is extended upto 30.09.2016.
Sd/-
JUDGE ca