Patna High Court
Puran Mal Jaiswal vs Onkar Nath Choudhary And Ors. on 7 October, 1958
Equivalent citations: AIR1959PAT128, 1958(6)BLJR766, ILR 38 PAT 247, AIR 1959 PATNA 128
Author: V. Ramaswami
Bench: V. Ramaswami
JUDGMENT Kanhaiya Singh, J.
1. These two consolidated appeals by the defendant from the concurrent decisions of the Courts below arise out of two suits for ejectment and recovery of damages for use and occupation and will be disposed of by one judgment.
2. The suits relate to a house standing on survey plot 1162 appertaining to khata 163 situate In the town of Buxar and the defendant appellant is in occupation of it. The plaintiffs claim to nave become the landlords of the house by virtue of a deed of surrender executed in their favour by their mother, Kamala Devi, and their maternal grand mother Sumitra Devi their maternal grand father, Balram Prasad Das, having predecesed his wife Sumitra without any issue other than the plaintiffs mother.
They asserted that the defendants were tenants of the house in suit at a monthly rental of Rs. 7. Their case is that the defendants defaulted in payment of rent and in fact paid no rent since after February 1946. On 1-6-1946, they served the defendants with a notice to quit the house by 30-6-1946, and deliver to them vacant possession. The defendants refused to vacate the house.
Thereupon, the plaintiffs instituted on 29-11-1946, Title Suit 185 of 1946 giving rise to Second Appeal 323 of 1952, and in the prayer to the plaint they asked (a) for ejectment of the defendants and for an order for delivering up of vacant possession, (b) for a decree for Rs. 70 on account of the arrear of rent from February 1946 till the date of the suit at the rate of Rs. 7 per month, (c) for compensation for use and occupation of the premises at the rate of Re. 1 per day from July 1946 to the date of the suit, and (d) for a decree for future mesne profits until the date of delivery of possession.
3. On 1-12-19,49, the plaintiffs instituted Money Suit 245 of 1949, giving rise to second Appeal 324 of 1952, on the same allegation and prayed for decree for arrear of rent from December 1946 till November 1949 at the rate of Rs. 7 per month and for compensation for use and occupation for the same period, that is, from December 1946 till November 1949 at the rate of Re. 1 per day, aggregating Rs. 1,080, the total claim in all being laid at Rs. 1,332.
4. The defence in both the suits was a denial of the relationship of landlord and tenant and a denial
-of the title of the plaintiffs. The defendants admitted that the house belonged to Sumitra Devi, the maternal grandmother of the plaintiffs, but denied that she had surrendered the house in their favour. They denied that their tenancy was a monthly tenancy and asserted permanent tenancy. They alleged that Sumitra had made a permanent settlement with them of the disputed house and the land on which it stood at an annual ground rent of Rs. 38. Alternatively, they pleaded permanent tenancy by adverse possession for more than twelve years. They also denied the service of notice to quit.
5. The Courts below overruled all the objections of the defendants and have given the plaintiffs decrees in both the suits.
6. It will be seen that in the title suit for ejectment the plaintiffs had also claimed arrears of rent from February 1946 to the date of the expiry of the notice, that is 30-6-1946, and for the subsequent period from 1-7-1946 to the date of suit (which, is 29-11-1946) they had claimed rent and also damages for use and occupation. Similarly, in the Money suit, they had claimed simultaneously both rent and damages for use and occupation for the same period, that is, from December 1946 till November 1949.
In other words, they had claimed rent for the period subsequent to the expiry of the notice to quit. After the close of the arguments in the Court of first instance, they however, filed a petition for amendment of the plaints by deleting the claim for rent for subsequent period, and this prayer was allowed. Accordingly, both the Courts gave the plaintiffs decree for ejectment and also for arrears of rent from February 1946 to June 1946 and for damages for use and occupation for the period subsequent to the expiry of the notice, but, in their opinion, the measure of the damages was the rate of rent.
Thus, the plaintiffs claim for rent for the period subsequent to the expiration of notice was not allowed and could not be allowed in view of the amendment of the plaints. In the second appeals before us, the learned Government Advocate representing the appellants has put forward the argument that notwithstanding the amendment of the plaints the demand of rent accruing since the expiration of the notice to quit operated as a waiver of the notice, and the tenancy must be treated as still subsisting.
After the amendment of the plaints there is no factual basis for this contention. Assuming, however, that even after the amendment the legal effect of the demand of rent continued, I think, his contention is wholly untenable. In support of his contention he relied upon the decisions in Joges Suri Chowdhrain v. Mahomed Ebrahim, ILR 14 Cal 33, Sitanath Midda v. Basudeb Midda, 2 Cal LJ 540, Kalanand Singh v. Ganpat Singh, 16 Cal WN 104, Llewhelling v. Ali Asgar, 60 Ind Cas 476 (Pat) and Abdul Rashid Khan v. Safar All, AIR 1918 Cal 552 (2).
These cases are not the authority for the general proposition enunciated by him that mere demand of rent after notice to quit in all cases waived the notice and in effect created a new tenancy or continued the old tenancy. The first three cases are based upon the construction of relevant sections of the Bihar Tenancy Act, then in force, which provided for ejectment of the tenant, if there was default in payment of rent. In those circumstances it was held that if, after the right to determine the tenancy for default of payment of rent has accrued, the landlord sues for subsequent arrears, he treats the defendant as his tenant and the right acquired under the relevant sections must be taken to have been waived. The decision in the fourth case 60 Ind Cas 476 (Pat) was rested upon the construction of the mukarrari lease. One of the terms of the lease was as follows :
"In case of default, the maliks aforesaid, shall be at liberty to bring a suit for arrears of rent together with compensation at 25 per cept and for cancellation of this mokarari patta and to obtain decree therefor".
On the terms of the patta the plaintiffs were entitled to re-enter on default having been made by the defendants in the payment of rent for three successive instalments. The plaintiffs instituted suit for rent after they had become entitled to re-enter upon the land in consequence of the breach of the conditions. In these circumstances, their Lordships of the Patna High Court held that the right to re-enter for breach of a covenant in a lease is waived by the lessors' bringing an action for rent accruing subsequently to the breach with knowledge of its existence.
The present case falls not under the Bihar Tenancy Act but under the Transfer of Property Act, and the question whether or not there was waiver of the notice depends upon the true and correct interpretation of the relevant sections of the Transfer of Property Act, which I shall presently consider. The last case referred to by the learned Government Advocate AIR 1918 Cal 552 (2) no doubt contains observations which support his contention, but they are based upon Section 112 of the Transfer of Property Act. The full facts have not been given in the report. In that case also it was stipulated in the kabuliat that the tenant will be liable to ejectment if he failed to pay rent "through wickedness".
In that case the plaintiff based his cause of action in 1314. but in the suit for ejectment claimed rent for the years 1314 to 1319, No further fact is apparent from the report, and without discussion their Lordships of the Calcutta High Court, have laid down that by claiming rent subsequent to the, default in payment of rent which, according to the plaintiff, gave him cause of action for ejectment, the plaintiff must be taken to have waived the forfeiture under Section 112 of the Transfer of Property Act. In the present case, we are not concerned with Section 112. Section 111 of the Transfer of Property Act enumerates the grounds which determine a lease of immovable property. It provides that a lease of immovable property determines, inter alia :
"(g) by forfeiture; that is to say,-- (1) in case the lessee breaks an express condition which provides that on breach thereof the lessor may reenter * * *; or (2) in case the lessee renounces his character as such by setting up a title in a third person or by claiming title in himself; or (3) the lessee is adjudicated an insolvent and the lease provides that the lessor may re-enter on -the happening of such event; and in any of these cases the lessor or his transferee gives notice in writing to the "lessee of his intention to determine the lease;
(h) on the expiration of a notice to determine the lease, or to quit, or of intention to quit, the property leased, duly given by one party to the other."
Section 112 provides :
"A forfeiture, under Section 111, Clause (g), is waived by acceptance of rent which has become due since the forfeiture, or hy distress for such rent, or by any other act on the part of the lessor showing an intention to treat the lease as subsisting :
Provided that the lessor is aware that the forfeiture has been incurred :
Provided also that, where rent is accepted after the institution of a suit to eject the lessee on the ground of forfeiture, such acceptance is not a waiver."
Two things are quite obvious. This section is intended only for the benefit of the landlord and whether or not there was a waiver of forfeiture depends upon the action of only one party, namely, the landlord independent of the tenant. Further acceptance of rent which has become due since the forfeiture constitutes waivor. But it a suit for ejectment of the lessee on the ground of forfeiture has, in the meantime, been instituted, the acceptance of rent after the institution of the suit will not amount to waiver. In this case, we are not concerned with the forfeiture of the tenancy.
The defendants no doubt repudiated the tenancy and denied the relationship of landlord and tenant, which would constitute forfeiture, as provided in Clause (g) of Section 111. The present suit, however, is not based upon forfeiture, but upon Clause (h) of Section 111, which provides for determination of the tenancy by notice to quit. How a notice in such cases is waived is provided in Section 113. Therefore, whether or not there was waiver of the notice in the instant case depends upon the correct interpretation of Section 113 which provides as follows :
"A notice given under Section 111, Clause (h) is waived with the express or implied consent of the person to whom it is given, by any act on the part of the person giving it showing an intention to treat the lease as subsisting."
The most important thing to notice is that waiver of notice to quit does not, like waiver of forfeiture, depend upon the will of one party, namely, the landlord, but upon the consent of both, the landlord and the tenant. There cannot be waiver of notice to quit under Section 113 without the express or implied consent of the person to whom the notice is given. The distinction between waiver of forfeiture and waiver of notice to quit has been clearly brought out in the following illuminating passage in Woodfall on landlord and Tenant, Twenty-fifth Edition, at page 1052;
"Once a valid notice to quit has been served the tenancy will automatically come to an end upon the expiry of such notice. However, the parties may by agreement, express or implied, create a new tenancy on the expiration of the old. This is what is sometimes termed 'waiving' or 'withdrawing' a notice to quit. There is this difference between a determination of a tenancy by a notice to quit and a forfeiture; in the former case the tenancy is put an end to by the agreement of the parties, which determination of the tenancy cannot be waived without the assent of both; but in the case of a forfeiture the lease is voidable only at the election of the lessor: in the one case the estate continues though voidable, in the other tenancy is at an end", The same distinction has been manifested in sections 112 and 113. When consent of both the landlord and tenant, express or implied, is a prerequisite to waiver, as envisaged in Section 113, the demand of rent for the period subsequent to the expiration of the notice does not ipso facto constitute waiver.
The plaintiffs no doubt demanded rent, but there was no express or implied consent of the defendants to the continuance of the lease. On the contrary, the defendants renounced their? character as tenants by setting up a title in a third person and also disclaimed all liability for payment of rent to the plaintiffs. Where there is a repudiation of the tenancy and disclaimer of, the title of the landlord by the tenant, a mere demand of rent for the period subsequent to the expiration of the notice cannot constitute waiver of notice to quit, for the simple reason that in such a case there can be no question of consent of the tenants either express or implied to the waiving of the determination of the tenancy. Therefore, on the plain meaning of Section 113 there was no waiver, in the circumstances of the present case.
7. Further, as will appear from the above the question whether or not there was waiver of notice to quit is purely a question of intention of) the parties. It is quite manifest from the provisions of Section 113 that in order to constitute waiver there must be an intention not only on the part of the lessor but also on the lessee to treat the lease as subsisting. In order, therefore, to determine whether or not in a particular case there was waiver of notice to quit one has to see whether from the conduct of the landlord and tenant, by demand and acceptance of rent or by demand followed by express promise to pay, or otherwise an intention to treat the lease as subsisting can be inferred, and this would certainly depend upon the facts and circumstances of each case.
When it is a question of intention, it is plain that not even the payment and acceptance of rent, by the landlord after the notice to quit, much less a mere demand of rent, necessarily waives the notice. The question under Section 113 is whether the act of landlord, manifested either by acceptance of rent or by demand of rent, is such as necessarily leads to the inference that there was an intention of creating a renewal of the tenancy or as treating the tenant as still subsisting. Therefore, neither the acceptance of rent nor the demand of rent is conclusive on the question of waiver. It is a question of fact to be determined in each case. To quote Woodfall' again.
"A demand of rent accruing subsequently to the expiration of a notice to quit is not necessarily a waiver of the notice, but is a question of intention which ought to be left to the jury." (pages 1052-1053).
Therefore, the contention of the learned Government Advocate that mere demand of rent operates as waiver cannot be accepted as correct. It is purely a question of inference from the facts established in a case. In these cases the plaintiffs had claimed not only rent but also damages for use and occupation of the land for the period subsequent to the expiration of the notice. It seems that the plaintiffs thought that because of the refusal of the defendants to vacate the house after they were asked by a notice to quit, they were entitled not only to damages for use and occupation for the same period does not unequivocally show that there was an intention on the part of the plaintiffs to waive the notice and treat the tenancy as subsisting.
The plaintiffs were entitled to damages for use and occupation for the period subsequent to the expiry of the notice, and if to the claim for damages was super-added a claim for rent also, it was not an absolute and unqualified demand of rent which could inevitably lead to the inference of waiver of notice. As against this demand there are other circumstances which militate against the theory of waiver. The plaintiffs instituted a suit for ejectment and actively prosecuted it.
The defendants did not insist upon the plaintiffs withdrawing their claim. If the defendants thought that there was waiver in the eye of law or they wanted to continue the tenancy, they would have proposed to the plaintiffs to withdraw the suit for ejectment and enter into an agreement that they would also make the payment. Had they done so, the position would have been different. In these circumstances, it cannot, in my opinion, be said that the plaintiffs had waived the rights asserted by them not only by the notice to quit, but also by instituting the suit for ejectment.
When the tenancy has been legally determined by a notice to quit and a suit also is instituted by the landlords for the eviction of the tenants, a mere combination of the claim for both rent and damages for the period subsequent to the expiration of the notice does not operate as waiver of the notice. The view I have taken above finds support from the decision of this Court in Shah Wali Ahmad v. Mt. Hussaini Beghum, 2 Pat LJ 595: (AIR 1917 Pat 469).
In this case their Lordships have held that where future rent is claimed and accepted after the notice to quit has been served and the ejectment proceedings instituted then the claim and acceptance of future rent amounts to waiver of the initial step and the proceedings upon which the right to eject depends. This decision shows that mere claim of rent for the period subsequent to the expiry of the notice does not constitute a waiver of the notice to quit in point of law. The same view was taken by the Bombay High Court in Navpitlal Chuni Lal v. Baburao (No. 1), AIR 1945 Bom 132.
In this case their Lordships of the Bombay High Court have held that it is not in every case that the payment and acceptance of rent by the landlord after the notice to quit of necessity waives the notice and that the question under Section 113 whether the act of the landlord (whether it is a receipt of the amount sent as rent or is the receipt of the amount sent without any statement at all) was one from which one can impute to the landlord the intention of creating a renewal of the tenancy or treating the tenancy as still subsisting is a question of fact A similar view has been expressed by the Nagpur High Court in Ilahibux v. Munir Khan ILR (1954) Nag 147: (AIR 1953 Nag 219). Hence, in my opinion, in the instant case the mere demand of rent does not in law ipso facto operate as a waiver of the plaintiffs' claim to ejectment.
8. It was next contended by learned Government Advocate that the suit was barred under 'this Bihar Buildings (Lease, Rent and Eviction) Control Act. He conceded that under the amended S.M. of the said Act the Civil Court is competent to entertain a suit for ejectment. Before the amendment the Controller had been invested with power to eject the tenant on the application of the landlord on the grounds set forth in Section 11. Now, this jurisdiction has been taken away from the Controller and conferred upon the Civil Court, and, therefore, under the amended Section 11 a tenant is liable to be evicted in execution of a decree passed try the Court. The submission of the learned Government Advocate is that nevertheless the ejectment must be sought on the grounds mentioned in Section 11, and determination of a tenancy by notice to quit is not one of the grounds specified in Section 11 for eviction of the defendants. I am unable to accept his contention as correct. It will be seen that the amended Section 11 provides for eviction of a tenant on the ground of non-payment of rent. Clause (d) of Section 11, which is relevant, lays down as follows:
"Where the amount of two months rent lawfully payable by the tenant and due from him is in arrears by not having been paid within the time fixed by contract or, in the absence of such contract, by the last day of the month next following that for which the rent is payable or by not having been validity' remitted or deposited in accordance with section 13;"
In this case also the defendants had defaulted to pay the rent, and, according to the plaintiffs, they ad not paid a single farthing since after February. 1946, and they have defaulted for more than two months. In fact, the plaintiffs have claimed also arrears of rent from February 1946 till the date of the expiry of the notice, that is till 30th June. 1946. The default in payment of rent for more than two months was certainly a valid ground for the eviction of the defendants. Therefore, it cannot be said that the suit is based only on determination of the tenancy by notice to quit.
It is true that the cause of action is seated to have arisen on 1-6-1946 when the notice was given, and on 30-6-1946, the date of the expiry of the notice. But the facts alleged in the plaint cannot be ignored. Cause of action, however, is not only the infringement of the right at a particular moment. The expressions 'cause of action' and 'part of the cause of action' must be taken as meaning, respectively, the material facts and any material fact in the case for the plaintiff. (See Dhanraj Mills Ltd. Liability Co. v. Narsingh Prasad, AIR 1949 Pat 270.) In Chand Koer v. Pratab Singh, ILR 16 Cal 98 at p. 102 their Lordships of the Privy Council have laid down as follows:
"Now the cause of action has no relation whatever to the defence which may be set up by the defendant, nor does it depend upon the character of the relief prayed for by the plaintiff. It refers entirely to the grounds set forth in the plaint as the cause of action or, in other words, to the media upon which the plaintiff asks the Court to arrive at a conclusion in his favour."
In Arthur Butlar and Co. Ltd. v. District Board of Gaya, AIR 1947 Pat 134 a Division Bench of this Court has laid down that a cause of action should ordinarily mean the fact or facts which compel plaintiff to bring an action in Court, but it is generally accepted that the expression means, everything which, if not proved, gives the defendant an immediate right to judgment--every fact which is material to be proved to entitle the plaintiff to succeed and every fact which the defendant could have a right to traverse.
Therefore, if the entire plaint is taken into account, the plaintiffs had clearly alleged that the defendants had defaulted in the payment of ren and that was one of the reasons for the plaintiffs to determine the tenancy by notice to quit. Therefore, the non-payment of rent for more than two months, was also one of the grounds for ejectment of the defendants, and accordingly the Bihar Buildings (Lease, Rent and Eviction) Control Act does not create a bar to the maintainability of the title suit
9. It follows that the decisions of the Courts below are correct, and there is no merit in these anneals. They are accordingly dismissed with costs;
V. Ramaswami, C.J.
10. I agree.