Andhra HC (Pre-Telangana)
Gundu Preemsagar And Ors. vs Nagabandi Jayashankar on 20 November, 2001
Equivalent citations: 2002(1)ALD554, AIR 2002 (NOC) 169 (AP), 2002 A I H C 1998, (2002) 2 RENTLR 312, (2002) 1 ANDHLD 554, (2002) 1 RENCR 684, (2002) 1 ANDHWR 440
Author: S.B. Sinha
Bench: S.B. Sinha
JUDGMENT S.B. Sinha, C.J.
1. A learned single Judge of this Court by an order-dated 28-8-2001 has referred the following questions to a Division Bench.
1. Whether the ground of wilful default will not be available to a landlord even if the irregular payment or rents had been clearly established on the sole ground that the landlord had received the rents before the institution of the RCC despite the fact that the rents were received by the landlord on protest and without prejudice to his rights?
2. What is the effect of the ratio laid down in Dakaya Alias Dakaiah v. Anjani, , K.A. Ramesh and Ors. v. Susheela Bai, , and M. Bhaskar, v. J. Venkatarama Naidu, .
3. Whether doctrine of waiver can be made applicable in the facts and circumstances of the present case?
4. Whether running of business by a family member in the name of the firm will amount to sub-letting within the meaning of A.P. Buildings (Lease, Rent and Eviction) Control Act, 1960 in the light of the provisions of Indian partnership Act?
2. The revision petition arises out of an order of the learned Principal Senior Civil Judge, Warangal in RCA No. 5 of 1994 confirming an order of eviction passed by the learned Rent Controller, Warangal in RCC No. 49 of 1984.
3. Briefly noted, the facts are: The premises bearing No. 8/127/1 situated at Chowrasta Warangal has fallen to the share of the respondent-landlord in the family partition effected in terms of final decree dated 11-10-1973 in OS No. 48 of 1973 on the file of the Subordinate Judge, Warangal. One Gundu Chadramouli (died) was the tenant of the premises even prior to the partition. After partition he had executed lease deed on 29-6-1981 in favour of the respondent leasing the premises at Rs.500/-per month. The period of lease was for 11 months commencing from 1-7-1981 and ending by 31-5-1982. The purpose of lease was for running a printing press. Default in payment of even one-month rent was agreed to be considered as wilful default. By the end of October, 1981 the tenant fell in arrears of rent to a tune of Rs. 3,000/-i.e., for a period of six months ending 31-10-1981. The respondent addressed a letter to the tenant on 14-11-1981 calling upon him to pay the said amount and also to pay Rs. 6000/- as advance and requested him to credit the monthly rents to the account of the landlord in Canara Bank, Warangal. The tenant paid the amount on 15-8-1982 due upto 31-10-1981. Thereafter, the tenant paid the rents at irregular intervals i.e., Rs. 1500/- on 13-4-1982, Rs. 2000/- on 23-7-1982, Rs. 1000/- on 16-10-1982, Rs. 1000/- on 30-10-1982, Rs.2,000/- on 21-12-1983, Rs.2000/- on 20-3-1984 and Rs.2000/- on 31-3-1984 totalling to Rs.11,500/- upto 30-9-1983. The landlord, therefore, claims that he is a wilfi! defaulter. The lease had expired on 31-5-1982 and with effect from 1-6-1982, the lease shall be deemed to be from month to month.
4. The tenant was running the press as a partnership concern and it will amount to violation of sub-letting and thus same amounts to the terms of the lease. On 1-8-1984, the tenant had acknowledged the arrears of rent amounting to Rs.5,000/- from 1-10-1983 to 31-7-1984 and undertaken to deposit the same to the SB account of the respondent. On 3-8-1984 the landlord issued notice calling upon the tenant to pay the arrears of rent and to handover the vacant possession of the premises by 15-8-1984. Thereafter, the tenant sent a pay order for Rs.5000/- on 7-8-1984 to the advocate of the respondent representing arrears of rent upto 31-7-1984. He had not paid the rent for August, 1984 payable on or before 6-8-1984.
5. On behalf of the revision petitioner it was contended that while replying to the notice issued by the landlord, the tenant had sent a draft pay order on 7-8-1984 for a sum of Rs. 5,000/- and the same having been accepted prior to filing of the eviction petition, no cause of action arose for filing a petition on the ground of wilful default. Reliance in this connection has been placed on the decision of the Supreme Court in Dakaya (supra), Jyothi Automobiles, Hyderabad v. Khet Bai and Anr., , and Ms. Sana Optics, Rep. By Partner Abdul Kareem v. Shyam Sunder Bhargava, . It was further urged on behalf of the petitioner that though there were irregular payments, but the same was used to be accepted by the landlord without any demur and thus mere irregularity of payment of rent cannot be termed as wilful default. Reliance in this connection has been placed on Premchand Ranka v. Vasanthraj Khatod and Ors., 1992 (1) An. WR 41 SC and A.J.D 'Souza v. Dr. K.C. Govind Rao, 1990 (1) ALT 52 (NRC).
6. As regards the question of subtenancy, it was submitted having regard to the provisions of Section 4 of the Indian Partnership Act, and original tenant had never parted with the possession of the premises as a firm had been constituted with one of the family members. If was further submitted that the burden of proving subletting and sub-tenancy and the proof of essential ingredient of parting with possession lies on the landlord. Reliance in this connection has been placed on the decisions in Sri Sai Baba Cloth Emporium, Adoni v. Kolli Sanjeevamma, , Jagadish Prasad v. Smt. Angoori Devi, , Jagan Nath (Deceased) Through LRs v. Chanderbhan, and P. Rajanna v. Keddy @ Chinnamma Devi, 1995(3) ALD 922.
7. The learned Counsel appearing on behalf of the respondent, on the other hand, would submit that rent control legislation being a special legislation, the object therefor must be sought to be achieved having regard to the conduct of the parties. Learned Counsel would contend that there was a statutory obligation on the part of the tenant to pay rent regularly and wilful default within the meaning of the Act would be presumed if no rent is paid in terms of the provisions contained therein. Acceptance of rent by the landlord despite default on the part of the tenant before institution of suit would not constitute waiver. Reliance in this connection has been placed on J. Puspalatha Devi v. Shyam Sunder, 2001 (2) DT 213, N. Srinivas v. K. Kamalamma, , and M. Bhaskar v. J. Venkatarama Naidu (supra). In any event, such amount having been received by the landlord without prejudice to his rights, the doctrine of waiver will have no application. It was further contended that even during the pendency of the proceeding also, the tenant defaulted in payment of rent and on that ground too, a decree for eviction could be passed. It had been pointed out that the practice of irregular payment of rent and acceptance thereof by the landlord having not been pleased earlier, such a plea cannot be allowed to be urged at this stage.
8. A concurrent finding of fact had been recorded by both the Courts below upon appreciation of evidence holding that the tenants are liable to be evicted on the ground of wilful default as also on the ground of sub-letting the premises. The fact that the original tenant Sri Chandramouli was in possession of the premises is not in dispute. It is also not in dispute that in the partition of the family properties, the schedule premises fell to the share of the respondent. The fact that in terms of the agreement dated 29-6-1981, the rent is payable in advance on or before 5th of each month is also not disputed. It is further not in dispute that there were irregular payment of rents by the petitioners. From the finding of the learned Courts below, it appears that Ex.A2 notice was issued calling upon the original tenant to pay arrears of Rs. 3,000/-to the father of the respondent apart from depositing of Rs. 6,000/- as advance. Though the receipt of the said notice had been denied in the counter, in course of evidence, the tenant had taken a plea that the said letter was addressed to their father and petitioner acknowledged the receipt of Rs. 3,000/- towards rent and Rs. 6,000/- as advance and instructing their deceased father to obtain receipts for the said amounts from him. In other words, although receipt of Ex.A2 itself was denied, but the tenants now contend that an amount of Rs. 6,000/-was lying in deposit with the landlord. They had also taken a plea to the effect that the payment of Rs. 5,000/- made upon receipt of legal notice would amount to double payment. On analysing the aforementioned evidence, learned Courts below recorded a finding of fact to the effect that the tenants had no intention to pay rent for ten months from October, 1983 to July, 1984 and paid the same after receipt of the legal notice and the same would amount to wilful default.
9. It was contended that there used to be a long-standing practice of accepting the irregular payment of rents by the landlord without any demur and such long-standing practice of accepting irregular payments should be treated as an implied agreement and the same does not constitute wilful default.
10. The said plea cannot be allowed to be raised in this proceeding as no pleading therefor had been raised. In a suit for eviction on any ground specified under Section 10(2) of the Act, it is for the plaintiff to prove that grounds for eviction of the tenant exists.
11. It is not in dispute that the petitioner paid an amount of Rs. 11,500/- towards the arrears due for the period from November, 1981 to September, 1983 and a receipt thereof was issued by the landlord under Ex.B3 dated 1-8-1984. It is also not in dispute that an amount of Rs. 5,000/- was paid towards rent due for the period from 1-10-1983 to 31-7-1984 by way of pay order and a receipt thereof was issued by the landlord under Ex.B4 dated 11-8-1984. Admittedly, the eviction petition was presented on 27-8-1984. Therefore, by the time the eviction petition was filed the entire arrears due upto 31-7-1984 were paid to the landlord. If the decisions of the Apex Court in Dakaya and Ramesh (supra) are applied, the eviction petition is not maintainable as the entire payment is made and accepted by the tenant before the institution of the suit.
12. The provisions of Sections 10(1), 10(2)(i) and Section 11 of the A.P. Buildings (lease, Rent and Eviction) Control Act, 1960, (for short 'the Act') read thus:
10. Eviction of tenants :--(1) A tenant shall not be evicted whether in execution of a decree or otherwise except in accordance with the provisions of this section or Sections 12 and 13.
Provided that where the tenant denies the title of the landlord or claims right of permanent tenancy, the Controller shall decide whether the denial or claim is bona fide and if he records a finding to that effect, the landlord shall be entitled to sue for eviction of the tenant in a civil Court and the Court may pass a decree for eviction on any of the grounds mentioned in the said sections, notwithstanding that the Court finds that such denial does not involve forfeiture of the lease or that the claim is unfounded.
(2) A landlord who seeks to evict his tenant shall apply to the Controller for a direction in that behalf. If the Controller, after giving the tenant a reasonable opportunity of showing cause against the application, is satisfied --
(i) that the tenant has not paid or tendered the rent due by him in respect of the building within fifteen days after the expiry for the time fixed in the agreement of tenancy with the landlord or in the absence of any such agreement, by the last day of the month next following that for which the rent in payable; or
(ii) that the tenant has, in the Andhra Area, after the 23rd October, 1945, and in the Telangana area after the commencement of the Hyderabad House Rent Controller Order of 1353 Fasli, without the written consent of the landlord--
(a) transferred his right under the lease or sub-let the entire building or any portion thereof if the lease does not confer on him any right to do so; or
(b) used the building for a purpose other than that for which it was leased; or xxxxx The Controller shall make an order directing the tenant to put the landlord in possession of the building and if the Controller is not so satisfied, he shall make an order rejecting the application.
Provided that in any case falling under Clause (i), if the Controller is satisfied that the tenant's default to pay or tender the rent was not wilful, he may, notwithstanding anything in Section 11, give the tenant a reasonable time, not exceeding fifteen days, to pay or tender the rent due by him to the landlord upto the date of such payment or tender and on such payment or tender, the application shall be rejected.
11. Payment or deposit of rent daring the pendency of proceedings for eviction :--(1) No tenant against whom an application for eviction has been made by a landlord under Section 10, shall be entitled to contest the application before the Controller under that section, or to prefer any appeal under Section 20 against any order made by the Controller on the application, unless he has paid to the landlord or deposits with the Controller or the appellate authority, as the case may be, all arrears of rent due in respect of the building upto the date of payment or deposit and continues to pay or deposit any rent which may subsequently become due in respect of the building, until the termination of the proceedings before the Controller or the appellate authority, as the case may be.
(2) The deposit of rent under Sub-section (1) shall be made within the time and in the manner prescribed.
(3) Where there is any dispute as to the amount of rent to be paid or deposited under Sub-section (1) the Controller or the appellate authority, as the case may be, shall on application made to him either by the tenant or by the landlord and after making such inquiry as he deems necessary, determine summarily the rent to be so paid or deposited.
(4) If any tenant fails to pay or to deposit the rent as aforesaid, the Controller or the appellate authority, as the case may be, shall, unless the tenant shows sufficient cause to the contrary, stop all further proceedings and make an order directing the tenant to put the landlord in possession of the building.
(5) The amount deposited under Subsection (1) may, subject to such conditions as may be prescribed, be withdrawn by the landlord on application made by him in that behalf to the Controller or the appellate authority, as the case may be.
Re points 1 to 3 :
13. From the provisions of Section 10(2) of the Act it is evident that where a landlord seeks eviction of the tenant on the ground of default in payment or tendering the rent due by the tenant, before ordering eviction, the Rent Controller is required to record a finding to his satisfaction that the tenant had not paid or tendered the rent in respect of building within fifteen days after the expiry of the time fixed in the agreement of tenancy with the landlord or in the absence of any such agreement, by the last day of the month next following that for which the rent is payable. However, proviso under Sub-section (2) provides that in a case where the Rent Controller is satisfied that tenant's default to pay or tender the rent was not 'wilful', he may, notwithstanding anything in Section 11, give the tenant reasonable time of not exceeding fifteen days, to pay or tender the rent due by him to the landlord upto the date of such payment or tender and on such payment or tender, the application shall be rejected. Therefore, the satisfaction of the Rent Controller that whether a tenant has committed wilful default in payment of rent or tender of rent or not is essential for passing an order of rejection of the application for eviction. If the Rent Controller is satisfied that the default to pay or tender the rent was wilful, then he shall make an order directing the tenant to put the landlord in possession of the building. On the other hand, if the Rent Controller satisfies himself that the tenant's default to pay or tender the rent was not wilful, then, notwithstanding the provisions contained in Section 11, he shall give the tenant a reasonable time of not exceeding fifteen days, to pay or tender the rent due by him to the landlord upto the date of such payment or tender and on such payment or tender, the application for eviction shall be rejected.
14. The term 'wilful' or what constitutes 'wilful default, however, has not been defined under the Act. In S.Sundaram v. V.R. Pattabhiraman, , the Apex Court upon referring to 'A Dictionary of Law by L.B Curzon.' Words and Phases Volume 45, Webster's Third New International Dictionary and Block's Law Dictionary stated :
Thus, a consensus of the meaning of the words 'wilful default, appears to indicate that default in order to be wilful must be intentional, deliberate, calculated and conscious, with full knowledge of legal consequences flowing therefrom. Taking for instance a case where a tenant commits default after default despite oral demands or reminders and fails to pay the rent without any just or lawful cause, it cannot be said that he is not guilty of wilful default because such a course of conduct manifestly amounts to wilful default as contemplated either by the Act or by other Acts referred to above.
15. Interpreting the term 'wilful' as above, the Apex Court in Sundaram 's case held that default per se cannot be construed as wilful and keeping in mind the beneficial purpose of the Rent Act to protect the eviction of the tenant, if the payment has been made before the institution of the suit, the cause of action for instituting the suit, will vanish. Therefore, according to the Apex Court, if the payment has been made before the institution of the suit, the same would not amount to 'wilful default'.
16. The above ratio was followed by the Apex Court in Dakaya Alias Dakaiah v. Anjani (supra), wherein the tenant on receipt of demand of payment from the landlord, paid the arrears by way of bank draft before the institution of the proceedings. The Apex Court held that eviction cannot be ordered in such a case.
17. The Apex Court had again the occasion to consider the said question under the provisions of the Act in K.A. Ramesh v. Susheela Bai (supra). In the said case, the tenant therein sent a bank draft for the arrears of rent from July, 1988 onwards on 2-2-1989 and it was encashed by the landlord. Eviction petition was filed on 6-2-1989. The Apex Court held that once the bank draft for the full amount of arrears was encashed by the landlord, the eviction proceedings would become infructuous. Referring to the proviso appended to Section 10(2) it was held:
....by sending a bank draft on 2-2-1989 when there was no litigation between the parties, full payment of arrears was tendered. That was accepted and realised pending the eviction proceedings. This clearly shows that there was no default at all much less wilful default on the part of the tenants in paying the rent for the months from July, 1988/12/1988. Consequently, the eviction proceedings were not required to be proceeded any further as the aforesaid proviso shows that even if the rent was not paid, there was a locus poenilentiae with the appellant-tenants to get a reasonable time not exceeding fifteen days for paying up the arrears by showing that default was not wilful and if during the time granted by the Court the default was made good, the application for possession, in that eventuality, has to be rejected.....
18. In M. Bhaskar v. Venkatarama Naidu, (supra), the Apex Court held that where the landlord was evading the payment of rent, the procedure prescribed under Section 8 of the Act has to be followed by issuing notice to the landlord to name the bank and if he does not name the bank the tenant has to file an application before the Rent Controller under Section 8 of the Act. It was also held that omission to avail of the procedure under Section 11 does not disentitle the landlord to seek eviction for wilful default.
19. Sub-section (1) of Section 11 provides that no tenant shall be entitled to contest in the eviction proceedings initiated against him or to prefer an appeal under Section 20 against an order of eviction passed by the Rent Controller under Section 10 unless he has paid to the landlord or deposits with the Controller or the appellate authority, as the case may be, all arrears of rent due upto date of payment or deposit and continues to pay or deposit any rent which may subsequently become due until the termination of the proceedings before the Controller or the appellate authority, as case may be. Sub-section (4) of Section 11 provides that if the tenant fails to comply with the provisions of Sub-section (1), unless sufficient cause is shown to the contrary, the Rent Controller or the appellate authority, as the case may, shall stop all further proceedings and make an order of eviction. Therefore, it was obligatory on the part of the landlord to file an appropriate application whereupon only a direction to the tenant for handing over the possession of the tenanted premises can be granted to the landlord. In K.A. Ramesh's case, it was argued that even pending the proceedings there could be default on the part of the tenants as they had not paid rent during the pendency of the proceedings and therefore a statutory right arose to the landlord to get all further proceedings stopped and for a direction to the tenants to put the landlord in possession of the building, Rejecting the said contention, it was held:
We fail to appreciate how this contention can be pressed into service on the peculiar facts of this case. As we have seen earlier, the eviction proceedings have themselves become infructuous once the bank draft dated 2-2-1989 for the full amount of arrears was already got encashed by the respondents, That apart, even if there was any default pending such proceedings, it was open to the respondents to enforce the statutory right available to them under Section 11(1) read with Section 11(4) of the Act for getting all further proceedings stopped before the Rent Controller and for asking immediate decree for possession, and/or in appeal of the appellant-tenants to request the appellate Court to dismiss the appeal and put the respondent-landlords forthwith in possession on account of such default. Nothing of this sort was done by the respondents. If they had tried to enforce this right, the appellants would have got an opportunity to show to the trial Court or the appellate Court, as the case may be, that there was sufficient cause for not passing such an order under Section 11(4) of the Act. That opportunity never became available to the appellants as the respondents did not invoke this provision. It can, therefore easily be said that the respondents waived this right available to them under the statute presumably because they themselves were satisfied on getting full payment of arrears of rent by encashing the bank draft dated 2-2-1989.
20. The aforesaid decision was followed by the Apex Court in C. Chandramohan v. Sengottaiyan, , wherein it was held:
.....Having accepted the rent deposited, the appellant cannot legitimately contend that the respondents committed default in payment of rent for that period. That being the position, on the date the appellant filed eviction petitions against the respondents, cause of action on the ground of wilful default in payment of rent was not subsisting to claim their eviction from the premises.
21. The question as to what constitute wilful default and whether a default on the part of the tenant to deposit rent during the pendency of the proceedings in terms of Section 11 of the Act would entitle the landlord to file a suit for eviction has also been considered in details by a Full Bench of this Court in Vinukonda Venkata Ramana v. Mootha Venkateswara Rao, ILR 2001 A.P. 309 (FB), wherein the decisions in Dakaya (supra) and K.A. Ramesh (supra) had been considered.
22. In P.N. Rao v. K. Radhakrishnamavharylu, , a Full Bench of this Court however relying upon the decision in Mangilal v. Sugan Chand, , took the view that the tenant cannot contend that the right of the landlord to seek eviction on ground of defualt is lost merely because he pays or tenders the rent due by him subsequently. It was held:
It is not correct to say that in order to succeed in the petition for eviction there must be a subsisting liability on the date of the eviction petition and it cannot be contended that the eviction petition was not maintainable merely because the landlord received the rent prior to the eviction petition.
23. In Mangilal (supra), the Supreme Court was considering the provisions of Madhya Pradesh Accommodation Control Act. These provisions are in addition to those of the Transfer of Property Act. Under the said provisions, before a tenant can be evicted by a landlord, he must comply both with the provisions of Section 106 of the T.P. Act and those of Section 4 of M.P. Accommodation Control Act. Section 4 of the said Act provides that no suit shall be filed in any civil Court against a tenant for eviction except on one or more of the grounds mentioned therein. Clause (a) of Section 4 empowers the landlord to file a suit for eviction if the tenant has failed to make payment to the landlord of any arrears of rent within one month of the service upon him of a written notice of demand from the landlord. In the case before the Supreme Court the tenant fell in arrears of rent for 12 months. The landlord issued a notice on 11-4-1959 calling upon the tenant to pay the arrears within one month from the date of service and also calling upon him to vacate the premises by 30th April, 1959. Upon service of the said notice, the tenant sent a cheque for the entire arrears of rent due and the landlord encashed the said cheque. The landlord again issued notice on 9-7-1959 requiring the tenant to vacate the premises. The Apex Court held that the language used by the Legislature should be given its natural interpretation and it should not be interpreted on basis of ideas derived from other laws intended to give protection to tenants from eviction by landlords. The Apex Court noticed the distinction in phraseology used in Section 4(a) vis-a-vis analogous provisions contained in Bombay Rent, Hotel and Lodging House Rates (Control) Act, 1947 and the West Bengal Premises Act, 1956 and held that in the latter Acts, the protection given to tenants was more extensive and therein a provision has been made that the tenant who is in arrears of rent may be given time to pay the arrears even after the institution of the suit. It was held:
In furnishing the ground under Section 4(a) for eviction to the landlord, the legislature intended to give protection only to a tenant who was diligent and regular enough in the matter of payment of rent. Indeed, while it is open to a legislature to give wide protection to even defaulting tenants, it does not follow from it that whenever it gives protection, it must be deemed to have given him the protection of widest amplitude.
24. Referring to the provisions of Section 106 of the TP Act it was observed:
The effect of Clause (a) of Section 4 is merely to remove the bar created by the opening words of Section 4 on the right which a landlord has under Section 106 of the Transfer of Property Act to terminate a tenancy of a tenant from month to month by giving a notice terminating his tenancy. It does not convert a periodic tenancy into one of fixed or indefinite duration nor insert therein a clause of re-entry on the ground of non-payment of rent. The character of the tenancy as one from month to month remains; but to it is added a condition that the unfettered right to terminate the tenancy conferred by Section 106 will be exercisable only if one of the grounds set out in Section 4 of the Accommodation Act is shown to exist.
xxxxx Indeed, the notice of 11-4-1959 as it stands, could not by itself have furnished the plaintiffs with the right to institute a suit. Till they acquired that right, not only were they entitled to accept the rent which accrued due from month to month but the defendant was himself liable to pay the rent whenever it fell due till the relationship of landlord and tenant was put an end to. Therefore, from the sole circumstance of acceptance of rent after 11-4-1959 waiver cannot at all be inferred. We are, therefore, unable to accept the argument of the learned Additional Solicitor-General that by cashing the cheque for Rs. 1,320-00 the plaintiff waived all rights which accrued to them under the notice dated 11-4-1959. As we have already said, no right under Section 106 of the Transfer of property Act had accrued to them because of the ineffectiveness of the notice insofar as the termination of tenancy was concerned and, therefore, no question of waiver with respect to that part of the notice arises. So far as the right accruing under Section 4(a) of the Accommodation Act is concerned, the defendant having been under liability to pay rent even after the giving of notice the acceptance of the rent by the plaintiffs would not be itself operate as waiver.
25. Considering the above decisions, a Full Bench of this Court in Vinukonda Venkata Ramana v. Moolha Venkateswara Rao held that the decision of the Apex Court in Dakaya being directly on the point must prevail over the other decisions of the Apex Court and accordingly held that the decision in P.N. Rao's case is no longer a good taw. The question whether default made subsequent to the filing of the eviction petition can be made a ground for ordering eviction was held affirmative in Dakaya subject to the fulfilment of conditions laid down in Section 11 of the Act. In Mangilal, the Supreme Court was considering the provisions of Madhya Pradesh Accommodation Control Act with reference to TP Act. Unlike the case in Mangilal the proviso under Section 10(2) of the Act empowers the Rent Controller to afford reasonable opportunity of not exceeding fifteen days to pay or tender the rent due by the tenant to the landlord if he is satisfied that the default was not wilful notwithstanding the provisions contained in Section 11 of the Act even after the institution of the eviction proceedings.
26. It was contended by the learned Counsel appearing for the respondent that the landlord had received the rents offered by the tenant subsequent to 1-8-1984 under protest. In his evidence also the landlord had stated that he received whatever rent tendered prior to 11-8-1984 without protest and only from the date of Ex.B4 dated 11-8-1984 he had mentioned the words under protest in the receipts issued to the tenant. However, in view of the decisions of the Apex Court in Dakaya and K.A. Ramesh and the Full Bench decision of this Court in Vinukonda Venkata Ramana v. Mootha Venkateswara Rao, since the entire payments due were made before the institution of the suit i.e., 27-8-1984 the cause of action for instituting the suit is not available to the landlord even though he received the amounts under protest and without prejudice to his rights.
27. In M/s. Sana Optics v. Shyam Sander Bhargava this Court held that where the landlord received the rents paid at irregular intervals without objection, the default cannot be termed as wilful default. To the same effect is the decision in Jyoti Automobiles v. Khet Bai. In both the cases, this Court followed the decisions of the Apex Court in Sundaram Pillai, Dakaya and K.A. Ramesh.
28. It is true that in Dakaya and Ramesh cases, the Supreme Court has not dealt with the issue what would be the consequence if the landlord has received the amounts from the tenant under protest. But, in view of the clear pronouncements of the Apex Court that if the payment has been made before the institution of the suit, the cause of action for instituting the suit will vanish, by implication, it shall be construed that the receipt of amounts by the landlord under protest is of no consequence.
29. The tenant has a statutory duty to pay rent. Such rent must be a paid /deposited in terms of the provisions of the statute. Except in rare cases long-standing practice itself may not give rise to infer implied agreement contrary to the provisions of the Act.
30. The contention of the learned Counsel appearing for the petitioner that having regard to the provisions contained in Section 112 of the Transfer of Property Act, the principle of waiver would be applicable cannot be accepted. It is true that the said Act is a special law. It is also true that the provisions of the said Act will prevail over the provisions of the Transfer of Property Act. It may also be true that once a finding of fact was arrived at to the effect that the tenants failed to show that the rent had been paid/ tendered/deposited in terms of the provisions of the Act, he is liable to be evicted on the ground of wilful default. Rent Control Act is a beneficial legislation for the tenants. Section 112 of the Transfer of Property Act, in the facts and circumstances of this case, cannot be said to have any application. Waiver is a doctrine and not a concept, which emanates from the provisions of Transfer of Property Act. A person having a statutory right may waive the same. What would constitutes waiver would, however, depend on the fact situation obtaining in a given case.
31. However, once the plea of waiver has been taken, the same has to be proved. The conduct of the parties play an important role in determining the question. Whether in a given case, the plaintiff has waived his right of obtaining decree would depend upon the facts and circumstances of each case. In the event it is found as of fact that a landlord has accepted rent without prejudice to his rights and contentions and/or under protest, the same may not constitute waiver. It is a question of fact and cannot be allowed to be raised unless it is properly pleaded and proved.
32. In an unreported judgment of the Calcutta High Court (Mc Dennell Private Limited v. Property Company Private Limited), it was held:
Plea of waiver must be specifically raised. Such a plea had not been raised in this case before the learned trial Judge during hearing of the suit. The tenant has a duty to pay rent to the landlord and the landlord has a right to accept the same so long as the tenant is not evicted pursuant to a decree passed by a competent Court of law. Something more than mere payment of rent has to be shown for proving that the landlord has waived his right.
33. In order to constitute waiver, there must be voluntary and intentional relinquishment of a right. The essence of a waiver is estoppel and where there is no estoppel, there is no waiver. Estoppel and waiver are questions of conduct and must necessarily be determined on the facts of each case. (See Municipal Corporation of Greater Bombay v. Hakimwadi Tenants' Association, .
34. In view of the above, it is not necessary to refer to the decisions of this Court in J. Puspalathi Devi v. Shyam Sunder etc., relied on by the learned Counsel for the respondents.
In Re Point No. 4:
35. The essential ingredient as regards sub-letting is that the tenant should not part with the possession of the premises and the transfer of possession should be supported by consideration. Exclusive possession and receipt of rent are thus the basis fabric of sub-tenancy. Exclusive possession by third party and uninterrupted continuous possession would constitute subtenancy. (See In Shyam Sundar Ganeriwalla v. Delta International Limited, .
36. However, there cannot be any doubt whatsoever that the burden of making good a case of sub-letting is upon the landlord. Though the burden of proof as a matter of law remains constant throughout a trial the evidential burden which rests initially upon the party bearing legal burden, shifts, according as the weight of the evidence adduced by the party during the trial. Therefore, it appears that the matter of monetary consideration or rent in case of sub-letting may also be inferred or presumed in a given situation. The question ultimately, however, depends upon appreciation of evidence in each case. However, in the instant case, it has not been disputed that the tenant had not parted with his possession.
37. In Jagdish Prasad v. Angoori Devi, , the Apex Court held that sub-letting cannot be presumed on mere presence of persons other than tenant and the allegation has to be proved as a fact by the landlord. The landlord has not been able to establish that the tenant had patted with the possession of the premises and the third party was in uninterrupted exclusive possession of the premises. In M/s. Madras Bangalore Transport Company v. Inder Singh, , a firm carrying on transport business was in possession of premises as tenant. The firm established a limited company allowed the company to operate from its tenanted premises along with it. The Supreme Court held that although firm and company were separate legal entities, there was no subletting, assignment or parting with possession of the premises by the firm to the company and the company was a creature of the partners of the firm and was the very image of the firm. The limited company and the partnership firm were two only in name but one for practical purposes. In Jagan Nath v. Chander Bhan, , a tenant belonging to a joint Hindu family was carrying on proprietary business with the help of his sons in part of the residential-cum-commercial premises and after his retirement from the business his sons had taken over it by forming a partnership. It was held that user by other persons does not amount to parting with possession so long as the tenant retains the legal possession himself. There must be vesting of possession by the tenant in another person by divesting himself not only of physical possession but also of the right to possession. In view of the aforesaid decisions of the Apex Court, it cannot be said that running of a press as a partnership concern would amount to subletting or parting with the possession. To the same effect is the decision in Sri Sal Baba Cloth Emporium case. Section 4 of the Indian partnership Act clearly defines 'partnership' to mean the relation between persons who have agreed to share the profits of a business carried on by all or any of them acting for all. Therefore, the partnership business can be carried by any one of them.
38. Thus, if a person takes premises on lease and thereafter a firm of partnership has been started by appointing one of his family members as partners the same ipso fact proves that there has been no transfer of possession as thereby he retains possession with himself but only for the purpose of carrying on business his family members will be considered as partners. It is not the case of the parties that original tenant and/or his legal representatives have parted with the possession. He, even as a partner continues to be in possession of the property.
39. We answer the questions referred to by the learned single Judge as under:
1. Answered in the negative.
2. In view of the aforementioned decisions, acceptance of rent before institution of suit may disentitle the landlord from obtaining a decree for eviction. A decree on the ground of wilful default during the pendency of the suit must be obtained only on the basis of an application filed in this behalf by the landlord in terms of Section 11 of the Act.
3. Whether doctrine of waiver would be applicable or not would depend upon the facts and circumstances of each case and it is for the learned single Judge to record a finding as to whether the said principle can be pressed into service in the instant case having regard to the concurrent finding of fact arrived at by the Courts below.
4. Running of business by a family member in the name of a tenant (sic firm) would not amount to subletting in terms of the. provisions of the Act.
40. The matter is now remitted back to the learned single Judge as only some questions had been referred to before us. No costs.