Document Fragment View

Matching Fragments

22. The principle underlying the waiver of forfeiture of a tenancy is that the lessor by some act has indicated an intention to treat the lease as still subsisting. It is illustrated by Section 112, T.P. Act, which provides that a forfeiture under Clause (g) of Section 111 of the Act is waived by acceptance of rent which has become due since the forfeiture, or by distress for such rent, or by any other act on the part of the lessor showing an intention to treat the lease as subsisting. There is a relevant exception to this section, namely, where rent is accepted after the institution of a suit to eject the lessee on the ground of forfeiture. Apparently, once the lessor has made his intention of terminating the relationship clear by instituting a suit for ejectment, his acceptance of rent is not to be interpreted in the manner indicated in the section. This exception is not extended by Section 113, T.P. Act, to waiver of a notice to quit, but the view has been expressed by a Judge of this Court that the inclusion in a suit for ejectment of a claim to such rent would not have the effect of waiver: Shah Wali Ahmad v. Hussaini Begam, 2 Pat. L. J. 595 : (A.I.R. (4) 1917 Pat. 469). These sections are concerned with waiver before the landlord has obtained a decree for ejectment. Here, we are concerned with a case where the landlord has actually got an order for ejectment and has filed a petition for execution in order to give effect to it. Act III [3] does not contain any special provisions to enable the landlord to recover his arrears of rent. He has for this purpose to go to the civil Courts and he has done so in the present case. I have indicated above that the legal position of the tenant after the Controller has passed an order under Section 11, directing him to vacate the building is uncertain. He may or may not continue as a tenant. In these circumstances, if the landlord, in his suit, describes as rent the sum which he claims to recover from him on account of his occupation of the building subsequent to the order of the Controller, it cannot be said that he shows thereby an intention to continue the tenancy and to waive his rights under the order of the Controller. A copy of the plaint in the suit was produced before us, and it certainly does not indicate any such intention.