In the judgment rendered by Orissa High Court in Bhagabat Patnaik vs. Madhusudhan Panda, Section 113 has been interpreted to hold that since a valid notice to quit a lease or to determine a tenancy cannot be waived without the assent of the Landlord and the tenant both, the question as to whether such consent can be implied by acceptance of rent by the Landlord depends on the facts and circumstances of the case. An English Authority in Lawenthanfal vs. Banhoute 1947 (1) All England Law Report, page 116 was quoted to say that a new tenancy cannot be inferred on the issuance of second notice. It is in this context that it was observed that "a subsequent notice to quit is of no effect." It was held that a tenancy is not revived by anything short of a new tenancy and in order to create a new tenancy there must be an express or implied agreement to that effect.
26. The mere fact that the tenant continues in possession and rent is accepted and the suit is not instituted are insufficient circumstances for inferring an intention to create a new tenancy after expiration of the first. An english commentary "Landlord and Tenant", was quoted by the High Court thus:
"Generally speaking, giving a second notice to quit does not amount to a waiver of a notice previously given unless, with other circumstances, it is the basis for inferring an intention to create a new tenancy after the expiration of the first."
27. To the same effect are the decisions of the Punjab & Haryana High Court in Shiv Jeet Singh vs. Charan Singh (supra) and Bombay High Court in Nanaji Gajanan Upganlawar vs. Shabbir Husain Fida Hussain (supra). The illustrations to Section 113 of the Transfer of Property Act were considered and it was observed that merely because a second notice was given, the first notice cannot be deemed to have been waived. To create a new tenancy, there must be an express or an implied agreement to that effect, and such agreement cannot be unilateral. It has to be bilaterally agreed between the tenant and the landlord for extension of lease.
28. This High Court in Post Master General vs. District Judge (supra) and Waqf Allal Aulad (supra) has observed that the tenancy would stand terminated on the expiry of the notice period. The Landlord would be justified in receiving the rent for the notice period from the date of service of notice. But merely acceptance of such rent could not be treated as an implied or express consent to treat the lease/tenancy as subsisting on the part of the Landlord. If the Rent Control Act does not apply, then the tenant is liable to be simply evicted after termination of tenancy default or no default in payment of rent, it is wholly immaterial.
29. In a Full Bench decision in Gokaran Singh vs. 1st Additional District Judge (2000) 40, ALR 405, this Court had observed that even if Rent Control Act applies and in the notice a wrong period of default and a wrong rate of rent is mentioned, still notice does not become invalid.
30. In the facts and circumstances of the case as have been referred to in the impugned judgment dated 01.10.2011, the Trial Court has treated the First Notice dated 10/20.02.1998 as subsisting because the Landlord did not file the suit for ejectment in pursuance of the first notice but gave a second notice and then filed the suit. The learned Trial Court has observed that the second notice given again was an invalid notice, the suit for ejectment based thereon was liable to be rejected and has rejected the same.
31. This kind of reasoning can only be said to be perverse. In Swaroop Singh Gupta vs. S. Gagdish Singh (supra) the Supreme Court has observed that mere acceptance of rent for the period in between the issuance of two notices to vacate would not itself constitute an act on the part of the Landlord showing an evidence to treat the lease as subsisting. The fact remains that even after accepting the rent tendered the landlord filed a suit for eviction. It cannot therefore be said that by accepting the rent he intended to waive the notice and to treat the lease as subsisting. The second notice after which the suit was filed for ejectment was not treated as illegal by the Supreme Court only because the first notice to quit was held as determining the tenancy without creating a new tenancy, by the act of the Landlord to accept the rent in the meantime.
IN THE HIGH COURT OF ALLAHABAD
Civil Revision No. 564 of 2011
Decided On: 22.11.2018
Praveen Kumar Jain Vs. Jagdish Prasad Gupta and Ors.
Hon'ble Judges/Coram:
Sangeeta Chandra, J.
Citation: 2019 (132) ALR 357
1. This writ petition has been filed by the landlord against the erstwhile tenant Sri. Jagdish Prasad Gupta, and his heirs i.e. his widow, sons and daughters arrayed as respondent No. 1 to 1/7 and also against Gujarat Narmada Fertilizer Corporation Ltd., Regional Office, Agra, respondent No. 2.
2. The revisionist has challenged the judgment and order dated 01.10.2011 passed by the Judge Small Causes/Special Judge (SC/ST Act), Etah, in Small Causes Suit No. 04 of 1998 Praveen Kumar Jain vs. Jagdish Prasad Gupta and another) rejecting the suit for eviction filed by the tenant.
3. The facts necessary for a decision of the controversy are to the effect that the revisionist being owner of godown surrounded by a boundary wall (hereinafter referred to as a suit property) rented it out to Sri. Jagdish Prasad Gupta, since deceased, on monthly rent of Rs. 13,000/- excluding taxes and electricity charges. It has been contended that when the respondent No. 1 failed to fulfill the conditions of the tenancy, the revisionist gave a legal notice on 20.02.1998 under Section 106 of the Transfer of Property Act, mentioning therein that the tenant had been in arrears of rent w.e.f. 01.1.1998 and had also caused damage to the suit property and despite repeated requests had not carried out the repairs thereof, and had also not paid Rs. 7,680 i.e. the expenses relating to some building materials used for repairs. The revisionist did not wish to continue the tenancy of the respondent No. 01 and therefore, directed him to pay the arrears of rent as well as Rs. 7,680/- along with interest thereon, and vacate the premises within 30 days. On failure to pay and to vacate damages at the rate of 25,000/- per month would be payable for which the Landlord would have to institute a civil suit in the competent Court and the cost of litigation would also be payable.
4. After receiving the said legal notice, the respondent No. 1 agreed to fulfil the terms of tenancy and paid rent of the suit property for the month of January & February 1998. However, the respondent No. 1 again defaulted in March 1998 which forced the revisionist to give a legal notice on 17.07.1998, under Section 106 of the Transfer of Property Act. On failure to deposit rent and to vacate the premises and also for subletting thereof to respondent No. 2, Small Causes Suit No. 04 of 1998 was instituted with a prayer for ejectment and possession of the suit property as well as arrears of the rent and damages along with interest. The respondent No. 1 appeared and filed his written statement on 22.12.1991. The application was filed by the revisionist controverting the allegations made by the respondent No. 1. However, it has been submitted that the suit was dismissed by the learned Court below vide judgment and order dated 01.10.2011.
5. Sri. Anadi Krishna Narayan, learned counsel for the revisionist has submitted before this Court that after taking evidence, five issues were framed by the learned Trial Court. Issue No. 1 was to the effect as to whether the U.P. Act No. 13 of 1972 was applicable to the suit property. It was held by the learned Trial Court that since the agreed rate of rent was more than Rs. 2000/- per month, the U.P. Act No. 13 of 1972 was clearly not applicable. Issue No. 2 related to whether the suit was maintainable in the absence of co-owners to the suit property not being impleaded as plaintiffs nor such co-owners issuing notice jointly to the tenant to vacate The learned Trial Court placing reliance upon two judgments of the Hon'ble Supreme Court in Mohinder Prasad Jain vs. Manohar Lal Jain 2006 (SCC) ALR 506 and M/S. India Umbrella Manufacturing Company vs. Bhagabandei Agarwalla MANU/SC/0002/2004 : AIR 2004 Supreme Court, 1321, held that one of the co-owners can file a suit for eviction of the tenant based on the doctrine of agency. One co-owner filing a suit for eviction against the tenant does so on his own behalf in his own right and as an agent of the other co-owners whose consent is assumed as taken unless it is shown by the tenant that the other co-owner was not agreeable to ejectment of the tenant and the suit was filed in spite of their disagreement. The learned Trial Court has also placed reliance upon a judgment of this Court in Giriraj Kesore vs. Triloki Nath AIR 1998, Allahabad 305, which held that one of the co-owners is competent to serve notice under Section 106 of the Transfer of Property Act and also competent to maintain a suit in pursuance of such notice.
6. The third issue framed by the learned Trial Court related to whether the respondent No. 1 was guilty of subletting the property without the consent of the owner or having caused substantial damage to the same, thus, being liable to ejectment on this ground. The learned Trial Court held that since U.P. Act No. 13 of 1972 was inapplicable to the suit property, the question of having sublet the property having caused substantial and structural damage to the same would not be relevant for issuing a decree of eviction.
7. It has been argued that it is with regard to the Issue No. 4, that the learned Trial Court has misdirected its energies. The Issue No. 4 as framed by learned Trial Court was whether the Notice issued on 17.07.1998 was illegal and suit filed on the basis thereof was not maintainable. It has been submitted by the learned counsel for the revisionist that by the impugned order dated 01.10.2011 passed in S.C.C. Suit No. 4 of 1998, the learned court below has wrongly held that since the first notice was not acted upon, it would not mean that it was waived altogether and it would continue to subsist, therefore, the second notice given to the tenant was invalid and the SCC Suit preferred for eviction of the tenant on the basis of the second notice could not have been filed and was not maintainable.
8. Learned counsel for the revisionist has read out the finding recorded by the learned court below with respect to issue no. 4 regarding validity of the notice issued for the second time on 17.07.1998. He has also submitted copies of the judgments relied upon by the learned court below.
9. Mr. Swapnil Kumar, learned counsel for the respondent has pointed out page 62 of the revision, which is a copy of the first notice annexed along with the Stay Application in the Revision and argued that the first notice dated 10.02.1998 states that the tenant is in arrears since January, 1998, whereas at page 65, which is the second notice dated 17.07.1998, there is no mention of the first notice issued by the land-lord, but mention has been made that the tenant is in arrears since 01.03.1998. It can therefore safely be assumed that the tenant had paid the rent for January and February, 1998 and it was accepted by the land-lord after the first notice was issued. He has submitted that the suit was not maintainable based upon the second notice. The first notice could not be said to have been waived by the action of the parties and his tenancy stood terminated in pursuance of the first notice itself and he became a "tenant at sufferance" or a "statutory tenant", who cannot be evicted except in accordance with law. The land-lord no doubt filed the SCC Suit for eviction, but he based the said suit on the second notice, which was invalid as the first notice was not waived.
10. Learned counsel for the respondent has relied upon the observations made by this Court and the Hon'ble Supreme Court referred to in the judgment impugned that mere acceptance of rent could not amount to waiver of notice. Learned court below therefore, committed no error in law in holding that the first notice was not waived and the suit could have been filed on the basis of the first notice, but could not have been filed on the basis of second notice, which was invalid notice. He has relied upon judgment rendered by this Court in Mahendra Pal Sharma (D) through legal heirs vs. IXth Additional District Judge, Aligarh and others, MANU/UP/0487/2011 : 2011 (5) AWC 5155.
11. In rejoinder, the learned counsel for the revisionist has submitted that in none of the judgments that have been cited and referred to in the order impugned, it has been held by any court that after the first notice, the landlord cannot send a second notice or the second notice cannot be made the basis for filing a suit for eviction of tenant. He has also read out section 111 (h) and section 113 of Transfer of Property Act and its illustrations to point out that where the lessor had given notice to the lessee initially on 10.02.1998, but thereafter had accepted the rent, the first notice stood waived.
12. Having heard the learned counsel for the petitioner and the learned counsel for the respondents, this Court has carefully perused the order impugned dated 01.10.2011 passed by the learned Trial Court. It is apparent from a perusal of the judgment impugned that the learned Trial Court has placed reliance upon several decisions of the Supreme Court and of various High Courts including this High Court to give a finding to the effect that initially notice dated 10/20.02.1998 had not been waived and was in existence, therefore, the second Notice No. 17/18.07.1998 had been illegally issued and the suit for ejectment could not have been based on the second notice by the plaintiff. The judgments relied upon by the learned Court below are as follows:
(i) Calcutta Credit Corporation Ltd. vs. Happy Home Pvt. Ltd., MANU/SC/0343/1967 : 1968 AIR (SC)471, 1968 (2) SCR 20.
(ii) Anand Nivas Private Ltd. vs. Anandji Kalyanjis Pedhi 1965 AIR (SC) 414.
(iii) R.V. Bhupal Prasad vs. State of Andhra Pradesh 1999 (5) SCC 698.
(iv) Sarup Singh Gupta vs. S. Jagdish Singh MANU/SC/8082/2006 : 2006 (4) SCC 205.
The judgments of this Court and of various High Courts on which reliance has been placed are as follows:
(i) Bhagbat Patnaik vs. Madhusudhan Panda 1965 AIR (Ori) 11.
(ii) Sivjit Singh vs. Charan Singh 1973 RCJ 14 (P & H).
(iii) Nanaji Gajanan Upaganlawar vs. Shabbir Husain Fida Hussain 2009 (1) CivCC, 549 (Bombay High Court).
(iv) Post Master General vs. District Judge AIR 2006, Allahabad (1).
(v) Waqf Allal Aulad/Waqf Alkh Allahatala Bijnor vs. 1st Additional District Judge, Bijnor 2008 (3) ARC 428 (Allahabad).
(vi) Mahendra Pal Sharma through legal heirs vs. 9th Additional District Judge, Aligarh 2011 (5) AWC, 5155 (Allahabad).
13. The learned Trial Court has quoted the aforesaid cited judgments out of context as I have carefully perused each of such judgments and have found the learned Trial Court giving a perverse finding on the basis thereof in Calcutta Credit Corporation Ltd. vs. Happy Home Pvt. Ltd. (supra), the tenant issued a notice to the landlord that he wished to terminate the tenancy and vacate the premises on 31st of August 1953. However, by a letter date 26.08.1953 intimated to the landlord that its earlier notice dated 12.08.1953 was treated as cancelled. The landlord informed the tenant that the earlier notice could not be withdrawn except by mutual consent and since the landlord has agreed to lease the premises to another tenant w.e.f. 1st September 1953, the landlord was unable to give consent to any such withdrawal notice and insisted upon the tenant to vacate the premises as already intimated. The tenants in turn intimated that they were holding over the premises on the expiry of notice period "according to the provisions of the Rent Control Act" not only the tenant failed to vacate the premise but it also sublet the part of the ground floor to Happy Homes Pvt. Ltd. The landlord then instituted a suit against the tenant claiming the decree in their Court. The tenant settled the matter outside the Court and a consent decree was passed on 28th of March 1955. The tenant handed over the possession of only a portion of premises in their occupation to the landlord with an agreement that the landlord will be at liberty either to retain the sub-tenant or to eject him. The landlord then filed a suit against Happy Homes Pvt. Ltd. The suit was decreed in favour of the landlord. In appeal the High Court reversed the decree.
14. The landlord then approached the Supreme Court. The Supreme Court considered Clause (h) of Section 111 of the Transfer of Property Act, and observed that the lease of immovable property is determined on the expiration of the period of notice to determine the lease or on notice of intention to quit the property duly given by one party to the other. It was urged on behalf of the landlord that notice with intention to quit the property leased and to determine the lease given by the tenant to the landlord could not be withdrawn. The tenant on the other hand alleged that under Section 113 of the Transfer Property Act it is open to the tenant to withdraw the notice of intention to quit before the expiry of the period thereof. The Supreme Court observed that once a notice is served determining the tenancy or showing the intention to quit on the expiry of the period of the notice, the tenancy is at an end, unless with the consent of the other party to whom such notice is given the tenancy is agreed to be treated as subsisting. Such notice cannot be withdrawn without the consent of both the parties. The consent of the parties makes a tenancy agreement. Also, it was observed that a notice under Section 106 of the Transfer of Property Act would operate to terminate the tenancy whether or not the party served with the notice assented thereto. The Supreme Court referred to its earlier decision in Anand Nivas Private Ltd. vs. Anandji Kalyanji Pedhi (supra) and explained the nature of the right and interest of "statutory tenant" in premises in his occupation. It observed as follows:
"A person remaining in occupation of the premises let to him after the determination of or expiry of the period of the tenancy is commonly, though in law not accurately, called a statutory tenant". Such a person is not a tenant at all he has no estate or interest in the premises occupied by him. He has merely the protection of the statute in that he cannot be turned out so long as he pays the standard rent and permitted increases, if any, and performs the other conditions of the tenancy. His right to remaining possession after the determination of the contractual tenancy is personal: it is not capable of being transferred or assigned, and devolves on his death only in the manner provided by the statute."
(emphasis supplied)
15. Clearly the observations of the Hon'ble Supreme Court were in favour of the Landlord and against the sub tenant who claimed to be a statutory tenant under the West Bengal Rent Control Act.
16. In Anand Nivas Private Ltd. vs. Anandji Kalyanjis Pedhi (supra) which judgment has been distinguished and held no longer to be a good law in Tara Chandra vs. Ram Prasad (supra), The Supreme Court was dealing with the Rent Control & Eviction Act of Bombay and of Rajasthan. It again talks of sub tenancy and observe that a person remaining in occupation of premises left to him after determination of or expiry of period of tenancy is a statutory tenant, merely entitled to protection of Statute only insofar as, that he cannot be turned out so long as he pays the standard rent with permitted increases, if any, and performs other conditions of tenancy. It was held that he cannot enforce the terms of such tenancy and therefore such statutory tenant under the Rent Control Act acquires no right of a tenant in premises occupied by him.
17. In Tara Chandra vs. Ram Prasad (supra) however, the Supreme Court observed that even if a sub tenant remains in occupation of a premises under the Rent Control Act, after death of such tenant, the right of succession on his/her heirs is as per his personal law. Accordingly, such heirs succeed as statutory tenants.
18. Clearly neither Anand Niwas Pvt. Ltd. nor Tara Chandra vs. Ram Prasad are applicable to the facts of the case as it had been held by the learned Trial Court itself that the rent of the suit property being more than Rs. 2000/- it was not falling within the purview of the U.P. Act No. 13 of 1972.
19. In R.V. Bhupal Prasad (supra), the Supreme Court was considering the question as to what is lawful possession. The landlady had leased out the premises to the appellant for running a cinema hall for a period of 20 years. Such contractual lease period expired on 31st of December 1983. The renewal of cinematograph license was not done by the Licensing Authority as it was held that the appellant is not in lawful possession. It was argued by the appellant that having lawfully entered into possession and having remained in possession during the subsisting period of lease and after expiry thereof his possession became a juridical possession. Until he was dully ejected by a decree of the Court, such possession cannot be termed an unlawful, nor can he be treated as a rank trespasser. The Supreme Court considered Sections 105 and Section 111 of the Transfer of Property Act, and observed in paragraph Nos. 7 and 8 as follows.
"Section 105 of the Transfer of Property Act [for short, 'the TP Act'] defines "lease" of immovable property as "a transfer of a right to enjoy such property, made for a certain time, express or implied, or in perpetuity, in consideration of a price paid or promised, or of money a share of crops, service or any other thing of value, to be rendered periodically or on specified occasions to the transferred by the transferee, who accepts the transfer on such terms". Therefore the lessor of immovable property by contract in writing or otherwise can transfer his property to the lessee to enjoy such property. It may be made for a certain time, express or implied, or in perpetuity, in consideration of a price or promise, or of money etc. and the lessee accepts the transfer on such terms. Under Section 111 of the TP Act, a lease of immovable property determines, inter alia, by efflux of the time limit. Section 116 envisages the effect of holding over and provides that "if a lessee or under-lessee of property remains in possession thereof after the determination of the lease granted to the lessee, and the lessor or his legal representative accepts rent from the lessee or under-lessee, or otherwise assents to his continuing in possession, the lease is, in absence of an agreement to the contrary, renewed from year to year, or from month to month, according to the purpose for which the property is leased, as specified in Section 106". Section 106 of the TP Act deals with the duration of certain leases in the absence of written contract or local usage with which we are not concerned in this case since the appellant and the landlady are governed by the written lease. Since the landlady had not accepted or assented to the appellant's continuance in possession, he cannot be treated under Section 116 to be a tenant holding over.
Tenant at sufferance is one who comes into possession of land by lawful title, but who holds it by wrong after the termination of the term or expiry of the lease by efflux of time. The tenant at sufferance is, therefore, one who wrongfully continues in possession after the extinction of a lawful title. There is little difference between him and a trespasser. In Mulla's Transfer of Property Act [7th End.] at page 633, the position of tenancy at sufferance has been stated thus: A tenancy at sufferance is merely a fiction to avoid continuance in possession operating as a trespass. It has been described as the least and lowest interest which can subsist in reality. It, therefore, cannot be created by contract and arises only by implication of law when a person who has been in possession under a lawful title continues in possession after that title has been determined, without the consent of the person entitled. A Tenancy at sufferance does not create the relationship of landlord and tenant. At page 769, it is stated regarding the right of a tenant holding over thus: The act of holding over after the expiration of the term does not necessarily create a tenancy of any kind. If the lessee remaining in possession after the determination of the term, the common law rule is that he is a tenant on sufferance. The expression "holding over" is used in the sense of retaining possession. A distinction should be drawn between a tenant continuing in possession after the determination of the lease, without the consent of the landlord and a tenant doing so with the landlord's consent. The former is called a tenant by sufferance in the language of the English law and the latter class of tenants is called a tenant holding over or a tenant at will. The lessee holding over with the consent of the lessor is in a better position than a mere tenant at will. The tenancy on sufferance is converted into a tenancy at will by the assent of the landlord, but the relationship of the landlord and tenant is not established until the rent was paid and accepted. The assent of the landlord to the continuance of the tenancy after the determination of the tenancy would create a new tenancy. The possession of a tenant who has ceased to be a tenant is protected by law. Although he may not have a right to continue in possession after the termination of the tenancy, his possession is juridical."
(emphasis supplied)
20. It was held by the Supreme Court that the appellant could not be said to be in lawful possession of the property in question and therefore could not demand renewal of his licence as the Landlady had herself on expiry of term of lease filed a suit for ejectment against the tenant which was pending.
21. In Sarup Singh Gupta vs. S. Jagdish Singh (supra), the Supreme Court was considering the appellant's case that under Section 106 of the Transfer of Property Act, the respondent had terminated the lease and instituted a suit for his eviction. Before filing of the suit two notices were given to the appellant on 10.02.1979 and 17.03.1979. According to the appellant despite notice terminating the tenancy, the respondent accepted rent for the month of April and May 1979 and thereafter and since the Landlord had continuously accepted the rent it amounted to a waiver of notice to quit.
22. The Supreme Court did not accept the argument made by the counsel for the appellant, that there was an implied consent of Landlord to treat the lease as existing on his acceptance of rent, despite notice to quit. The Supreme Court rejected such arguments and observed that 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. It observed in paragraph Nos. 6, 7 and 8 as follows:
"......... 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".
(emphasis supplied)
23. A somewhat similar situation arose in the aforecited case it was a case where the landlord accepted rent even on expiry of the period of lease. A submission was urged on behalf of the tenant in that case that Section 116, Transfer of Property Act was attracted and there was a deemed renewal, of the lease. Negativing the contention, the Supreme Court observed that mere acceptance of rent for the subsequent months in which the lessee continued to occupy the premise even, after the expiry of the period of the lease, cannot be said to be a conduct signifying his assent to the continuing of the lease even after the expiry of the lease period. Their Lordships noticed the conditions incorporated in the agreement itself, which provided for renewal of the lease and held that those conditions having not been fulfilled, the mere acceptance of rent after expiry of period of lease did not signify assent to the continuance of the lease.
24. The Supreme Court in Sarup Singh Gupta (supra) went on to observe thus:-
"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 oh 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 suit 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 be 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)
25. In the judgment rendered by Orissa High Court in Bhagabat Patnaik vs. Madhusudhan Panda, Section 113 has been interpreted to hold that since a valid notice to quit a lease or to determine a tenancy cannot be waived without the assent of the Landlord and the tenant both, the question as to whether such consent can be implied by acceptance of rent by the Landlord depends on the facts and circumstances of the case. An English Authority in Lawenthanfal vs. Banhoute 1947 (1) All England Law Report, page 116 was quoted to say that a new tenancy cannot be inferred on the issuance of second notice. It is in this context that it was observed that "a subsequent notice to quit is of no effect." It was held that a tenancy is not revived by anything short of a new tenancy and in order to create a new tenancy there must be an express or implied agreement to that effect.
26. The mere fact that the tenant continues in possession and rent is accepted and the suit is not instituted are insufficient circumstances for inferring an intention to create a new tenancy after expiration of the first. An english commentary "Landlord and Tenant", was quoted by the High Court thus:
"Generally speaking, giving a second notice to quit does not amount to a waiver of a notice previously given unless, with other circumstances, it is the basis for inferring an intention to create a new tenancy after the expiration of the first."
27. To the same effect are the decisions of the Punjab & Haryana High Court in Shiv Jeet Singh vs. Charan Singh (supra) and Bombay High Court in Nanaji Gajanan Upganlawar vs. Shabbir Husain Fida Hussain (supra). The illustrations to Section 113 of the Transfer of Property Act were considered and it was observed that merely because a second notice was given, the first notice cannot be deemed to have been waived. To create a new tenancy, there must be an express or an implied agreement to that effect, and such agreement cannot be unilateral. It has to be bilaterally agreed between the tenant and the landlord for extension of lease.
28. This High Court in Post Master General vs. District Judge (supra) and Waqf Allal Aulad (supra) has observed that the tenancy would stand terminated on the expiry of the notice period. The Landlord would be justified in receiving the rent for the notice period from the date of service of notice. But merely acceptance of such rent could not be treated as an implied or express consent to treat the lease/tenancy as subsisting on the part of the Landlord. If the Rent Control Act does not apply, then the tenant is liable to be simply evicted after termination of tenancy default or no default in payment of rent, it is wholly immaterial.
29. In a Full Bench decision in Gokaran Singh vs. 1st Additional District Judge (2000) 40, ALR 405, this Court had observed that even if Rent Control Act applies and in the notice a wrong period of default and a wrong rate of rent is mentioned, still notice does not become invalid.
30. In the facts and circumstances of the case as have been referred to in the impugned judgment dated 01.10.2011, the Trial Court has treated the First Notice dated 10/20.02.1998 as subsisting because the Landlord did not file the suit for ejectment in pursuance of the first notice but gave a second notice and then filed the suit. The learned Trial Court has observed that the second notice given again was an invalid notice, the suit for ejectment based thereon was liable to be rejected and has rejected the same.
31. This kind of reasoning can only be said to be perverse. In Swaroop Singh Gupta vs. S. Gagdish Singh (supra) the Supreme Court has observed that mere acceptance of rent for the period in between the issuance of two notices to vacate would not itself constitute an act on the part of the Landlord showing an evidence to treat the lease as subsisting. The fact remains that even after accepting the rent tendered the landlord filed a suit for eviction. It cannot therefore be said that by accepting the rent he intended to waive the notice and to treat the lease as subsisting. The second notice after which the suit was filed for ejectment was not treated as illegal by the Supreme Court only because the first notice to quit was held as determining the tenancy without creating a new tenancy, by the act of the Landlord to accept the rent in the meantime.
32. The judgment and order impugned dated 01.10.2011 having misinterpreted law as settled by the Supreme Court and this Court is hence liable to be set aside and is set aside.
33. This Court at the time of hearing of this case and reserving the judgment on 10.04.2018, taking into account the argument made by the learned counsel for the revisionist that ever since 01.10.2011 no rent has been paid by the tenant to the Landlord, had directed payment of rent @ Rs. 13000/- on the admitted rate of rent of Rs. 13000/- per month by opening a new Bank Account along with arrears, if any.
34. An application along with an affidavit of compliance has been filed by the respondent No. 1/4 Ajay Gupta saying that Rs. 39,000/- had been deposited as three months rent w.e.f. 01.07.2011 to 30.09.2011 in the Lower Court by a challan dated dated 18.07.2011. After dismissal of the suit for ejectment the respondent No. 1/4 had opened the Savings Bank Account No. 131110101002272 in Shreyas Gramin Bank at Etah on 07.10.2011 and had been continuously depositing the rent @ of Rs. 13000/- per month. A photocopy of the passbook of the aforesaid Bank Account showing deposit of Rs. 10,14,000/- as rent up to 07.04.2014 has been filed. It is apparent that rent @ 13000/- per month has been deposited by the respondent No. 1/4 in the said Bank Account for period of 84 months starting from 07.10.2011 up to 07.04.2018. Such deposited money in the Savings Bank Account of the Respondent No. 1/4 shall be given to the Landlord forthwith if not given already.
35. However, this Court has carefully perused the pleadings on record, it is evident that respondent No. 1 (now deceased) had taken the suit property i.e. godown on rent @ Rs. 9000/- per month in 1988. The rent was increased to Rs. 13000/- in 1998. It has been 20 years since filing of the suit for ejectment where the plaintiff had prayed for Rs. 25,000/- per month as damages for continued occupation of property despite determination of lease.
36. This Court is also aware of judgment of a Coordinate Bench of this Court in Khurshida vs. ADJ 2004 (2) ARC, 64 and H.M. Khidu vs. ADJ, 2004 (2) ARC, 652, where placing reliance upon Supreme Court judgments it was held that the Writ Court is empowered to enhance the rent to a reasonable extent.
37. A godown which was leased out in 1988 @ Rs. 9000/- per month and whose admitted rate of rent was Rs. 13000/- per month in 1998 would certainly after a lapse of 20 years be capable of being rented out for a larger sum of money. Treating the suit property to be capable of securing 20 % increase in monthly rent after every period of five years, the respondent No. 1 to 1/7 are directed to pay the increased of amount of rent as damages and mesne profits for occupation of the suit property during the pendency of litigation.
38. The respondents are directed to vacate the suit property within a period of one month from today and to give to the Landlord an enhanced rate of 20 % of the monthly rent for every five years as damages and mesne profits as they have continued in occupation of property for the past twenty years. Such damages and mesne profits would be exclusive of taxes and electricity charges to be paid by the respondents in terms of their earlier oral agreement and shall be paid within a period of three months from today, failing which the revisionist shall be entitled to move for execution of this decree.
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