Gouri Shankar Sadany vs Jethmal Lakeain

Binayak Nath Banerjee, J.—This appeal comes before us under a leave granted under Clause 15 of the Letters Patent by S.K. Sen, J. The Plaintiff, who is the Appellant in this Letters Patent Appeal, is the owner of a premises known as "Matibhaban", in the town of Kharagpur. Portion of the said premises was let out to the Defendant, Jethmal Lakhain, at a rental of Rs. 30 per month, according to the English calendar. According to the Plaintiff the Defendant had caused material deterioration to the premises, let to him, by acts of waste and was a defaulter in payment of rent, within the meaning of the West Bengal Premises Rent Control (Temporary Provisions) Act, 1950. It was also alleged that the Plaintiff reasonably required the premises for his own occupation. The Plaintiff, therefore, terminated the tenancy of the Defendant by a notice to quit and on refusal of the Defendant to vacate the said premises, brought the suit, out of which this appeal arises, on September 23, 1954.

The Defendant contested the suit denying all the allegations made by the Plaintiff.

The learned Munsif found that the Plaintiff required the premises for his own occupation and also that the Defendant was a defaulter in payment of rent on three occasions of two consecutive months each within 18 months before the institution of the suit and as such was not entitled to the protection from eviction under the West Bengal Premises Rent Control (Temporary Provisions) Act, 1950. The learned Munsif, however, negatived the contention of the Plaintiff that the Defendant had caused deterioration to the premises by acts of waste. In the view the learned Munsif took, he decreed the suit for eviction.

The Defendant preferred an appeal to the court of the District Judge, Midnapore. The learned District Judge came to the conclusion that the Plaintiff had failed to prove reasonable requirement of the premises for his own occupation and reversed the finding of the learned Munsif on that point. He however, agreed with the learned Munsif that the Defendant had defaulted in payment of rent on three occasions of two months each within 18 months before the filing of the suit. The learned District Judge also negatived a contention for the first time raised in appeal, namely, that by acceptance of rent for the months, subsequent to the months in respect of which the tenant had made defaults in payment of rent, the landlord must be deemed to have waived the defaults. Since the learned District Judge was of the opinion that the tenancy had been duly terminated and that the tenant Defendant was not entitled to the protection of the West Bengal Premises Rent Control (Temporary Provisions) Act, 1950, he dismissed the appeal.

The Defendant preferred a second appeal to this Court. That appeal came up for hearing before S.K. Sen, J. Before his Lordship the argument on the point of waiver seems to have been recast. It was contended that the landlord had on two occasions, after the default, accepted advance payments of rent from the tenant, namely, that rent for the months of May and June, 1953 had accepted in advance on May 16, 1953 and that rents for the months of September to December, 1953 had been accepted in advance on September 26, 1953. It was contended that by acceptance of advance rents on these occasions, the defaults had been waived and that the landlord had acknowledged the continuance of the tenancy on the old terms and that he could not, therefore, fall back on the old defaults, so as to take, away from the tenant the protection from eviction under the West Bengal Premises Rent Control (Temporary Provisions), Act, 1950. His Lordship gave effect to this contention and held:

In view of the circumstances I must accept the contention of Mr. Chatterjoe and hold that even though acceptance of rent already in arrear by the landlord does not amount to waiver of the default, acceptance of advance rent does amount to waiver of the default, which has been made previously; it is as if after the clearance of the rents in arrear, advance rents were taken in token of the creation of a new tenancy, and after the acceptance of such advance rent the landlord cannot fall back on the default which had been made before such acceptance.

His Lordship also gave another reason why the appeal should be allowed and we set out that reason hereinbelow:

In the present case I am also inclined to accept Mr. Chatterjee''s contention that the tenant was in fact prejudiced by the failure of the landlord to give details of the defaults in the plaint. In the plaint the Plaintiff merely stated that the Defendant was a habitual defaulter and had defaulted on three occasions of two successive months within the meaning of proviso to Section 14(3) of the Act, but no details of the months for which the default was made were given in the plaint. If these details were given and the Plaintiff had sought to rely on the default as a ground for denying the protection of the Rent Control Act, to the tenant, the tenant might have taken the plea, as he did in the lower appeal late court, that by arrangement among the parties, who lived at the same place, Kharagpur town rent was to be paid not monthly but after intervals of not less than three months when the landlord might need money and would ask for the same, when not only the rent in arrear but some advance rent would be paid. This argument was raised in the lower appellate court but it could not be accepted there in the absence of any evidence on the point. But the mode of payment of rent, as proved be the rent receipts. Exts. A and A(l) would show that there might be some sort of arrangement between the parties that rent was payable not monthly but according to demand, and the Defendant was prevented from raising the defence in his written statement because of want of details of the default in the plaint.

In the view that he took, his Lordship allowed the appeal, set aside the judgments and decrees of the courts below and dismissed the Plaintiff''s suit. His Lordship was, however, pleased to grant leave to the Plaintiff to appeal under Clause 15 of the Letters Patent. This is how the matter comes before us.

In our opinion, S.K. Sen, J. was not right in introducing the theory of waiver in the facts and circumstances of the instant case. His Lordship was not unmindful of the decisions of this Court, which held that mere acceptance of rent for the mouths subsequent to the months in respect whereof defaults in payment of rent had been made, would not constitute waiver of the defaults. His Lordship himself referred to those decisions in course of his judgment, namely, the decisions Jetha Bhulchand v. F.C. Grace (1922) 26 C.W.N. 678 , Kanto M. Mallick v. Jyotish Chandra Mukherjee (1945) 49 C.W.N. 433 and Hari Singh v. Dwarkin and Sons Ltd. (1954) 58 C.W.N. 968 . His Lordship, however, distinguished all the aforesaid cases on a feature special to this case, namely, that the landlord had accepted advance payment of rent from the tenant on two occasions even after the tenant had defaulted in payment of rent. This according to his Lordship amounted to waiver of defaults, which had been made previously as if after the clearance of rent in arrear, advance rent was taken in token of the creation of a new tenancy and after the acceptance of such advance rent the landlord was disentitled from falling back upon the old defaults which had been made prior to such acceptance. In our opinion, this special feature relied on by his Lordship introduces distinction without difference. Non-payment of rent is not the cause of action for the landlord''s suit for ejectment. Such a suit is governed by the general law except that the Rent Control Act of 1950 provides a special protection to the tenant which is available; to him on the conditions stated in the Act and not available in certain other circumstances specified. When one or other of latter circumstances, for example, defaults in payment of rent oh three occasions of two consecutive months each within 18 months before the institution of the suit, occurs the Rent Control Act is out of the landlord''s way and nothing prevents the landlord from getting a decree for eviction, if the tenancy had been lawfully terminated and if the landlord was otherwise entitled to get such a decree under the general law. Therefore, it is necessary to find out, in the first place, whether the landlord, is entitled to get a decree for eviction under the general law. If it is so, it is necessary to find out, in the next place whether the tenant is entitled to protection against a decree for eviction under any of the provisions of the Rent Control Act of 1950. According to the findings arrived at in this case there is no hurdle in the way of the Plaintiff landlord to get a decree for eviction under the general law. What was found against the Plaintiff was that he had waived the advantage under the West Bengal Premises Rent Control (Temporary Provisions) Act, 1950, namely, statutory defaults made by the tenant Defendant.

Now, waiver is contractual; it is an agreement to release or not to assert a right. The question for our consideration, therefore, is whether the acceptance by the Plaintiff of the advance payment of rent was such an act from which, without more, an agreement not to take advantage of the defaults made by the tenant could be necessarily implied. S.K. Son. J. was of the opinion that such acceptance of rent must be deemed to have been taken in token of the creation of a new tenancy. We wonder what put the old tenancy to an end, unlike the provisions of the Rent Control Act of 1948, the Rent Control Act of 1950 does not contain any provision as to ipso facto termination of the tenancy on account of default in payment of rent for the statutory period. If default under the Act of 1950 did not determine the old tenancy, it may be difficult to visualise that by receiving advance payment of rent after the period of default a new tenancy is unilaterally imposed on the tenant, although there may be nothing to show that the tenant had agreed to the termination of his old tenancy and had further agreed to continue as a tenant under a new tenancy conferred on him by the landlord.

In our opinion, from the mere acceptance of advance payment of rent the inference made by his Lordship does not necessarily arise. Advance payment of rent and acceptance thereof as such may be made under more circumstances than one. One of such circumstances may of course be an agreement between the landlord and the tenant that the landlord would not take advantage of the old defaults made by the tenant and try to eject him on such grounds. If such an agreement be proved either expressly or by necessary implication, the tenant Defendant may aspire to defeat the landlord''s suit for eviction on the ground of waiver. In the instant case, however, there is no evidence as to how, in what circumstances and under what arrangement, if any at all, the advance rent had been tendered by the tenant and accepted by the landlord. Nor are the circumstances, in which the advance payment of rent was made, such as necessarily to raise an inference of an agreement between the parties to create a new tenancy freed from the stigma of old defaults. Since we are of the opinion that advance payment of rent may be made under more circumstances than one, for example, precautionary payment against risk of default, and since we are also of the opinion that there is no evidence to show that the parties had ever agreed to create a new tenancy on the basis of payment and acceptance of rent in advance, we hold that S.K. Sen, J. was not right in coming to the conclusion that the landlord had waived his right to take advantage of the defaults made by the tenant.

The other ground relied on by S.K. Sen, J., was that for want of particulars of the months of defaults, in the plaint, the Defendant had suffered prejudice and could not traverse the averments as to defaults in his written statement and also could not raise an issue on the point of default. We are not satisfied with this line of criticism. If the Defendant felt aggrieved by want of particulars as to the months of default, in the plaint, he could very well ask for particulars but he did not do so.. In his statement he specifically denied the charge of default. That indicates that he understood what charge of default was being levelled against him. Evidence was led by the Plaintiff on the point of default. The Defendant in course of his cross-examination never suggested to the Plaintiff or his witnesses that there was no default, because rents were not payable monthly but only when demanded. Nor did the Defendant come out with a case, either in his written statement or in evidence led on his behalf, that as between the parties there was an agreement that rent would only be paid on demand. In these circumstances we do not understand what prejudice the Defendant may have suffered for want of particular of the months of default in the plaint.

From his reading of the rent receipts Exts. A and A(1), S.K. Sen, J. came to the tentative finding "that there might be "some sort of arrangement between the parties that rent was "payable not monthly but according to demand". S.K. Sen, J. was not himself sure that there was any such agreement between the parties but nevertheless his Lordship arrived at a tentative finding on the point to the effect that there might be some such arrangement. We are of the opinion that in the circumstance of the case there was no scope for spelling out such an agreement. In these circumstances, we hold that the suit should not be dismissed on account of the defect in the plaint as pointed out by S.K. Sen, J.

For the reasons aforesaid we set aside the judgment and decree of S.K. Sen, J. allow the appeal and restore the judgment and decree of the first appellate court.

There will be no order as to costs in this Letters Patent Appeal.

Amaeesh Roy, J.

I agree.