Ram Lal vs Sardari Lal

Ali, J.

This is a plaintiff's second appeal arising out of a suit for ejectment brought by the plaintiff. It appears that the defendant was a tenant of a shop

situated in Samba on a monthly rental of Rs 20 having executed a rent deed in favour of the plaintiff on 4101960. The plaintiff before filling the suit

served a notice on the defendant to quit and to pay the arrears of rent claimed by him. As the defendant did not vacate the disputed shop, the

plaintiff brought the present action for ejectment and also pleaded that the shop was required for his personal necessity.

The suit was contested by the defendant firstly on the ground that there was no personal necessity and that the notice to quit was not in accordance

with law. The trial court accepted the plaintiff's case and decreed the plaintiff's suit. The defendant then went up in appeal to the District Judge and

while the appeal was pending before him, it appears that the defendant offered the rent of the premises which was accepted by the plaintiff on

14111963 and 18111963 amounting to Rs. 240. The defendant then filed an application before the appellate court that by acceptance of rent, the

plaintiff waived the notice to quit and the tenancy must be deemed to be subsisting and hence plaintiff suit should be dismissed on this ground,

appellate court on the application of the defendant examined the plaintiff who admitted having received the rents during the pendency of appeal

before the appellate court although the receipt showed that the rents were accepted under protest. The appellate court, however, accepted the

defendant's case that by accepting the rent, the notice to quit was waived and, therefore, t plaintiff's suit was dismissed by it. Hence en second

appeal before this court.

Both the courts below have, however concurrently found that the plaintiff required the house for personal necessity and that the not to quit which

was given to the defendant bet' the suit was valid in law.

The only question for determination in this appeal is as to whether or not the acceptance of rent by the plaintiff during the pendency of appeal

before the lower appellate court would amount to waiver of notice to quit so as to entail a d missal of the plaintiff's suit. It is common group that the

suit is not governed by the Jammu and Kashmir Houses and Shop Rent Control Act, which has not been extended to Samba appellate court was

of the view that in view of the illustration to Section 113(a) of the Transfer of Property Act, the conduct of the appellant accepting the rent clearly

amounts to a waiver the notice to quit. The appellate court has furl relied on the following decisions :

1949 Calcutta. 342, 1949 Federal Court 124, 1^59 Bombay, 392, 1926 Calcutta, 763, 1957 C 627 and 1959 Andhra Pradesh, 346. We have

heard the arguments of the learned counsels for the parties at length and we are not in a position to agree with the view taken by the learned lower

appellate court. In the instant case, there are some important circumstances which distinguish the facts of the present case from the facts of the

cases relied upon by the appellate court cited above. In the first place, in all those cases excepting AIR 1926 Calcutta, 763, the cases were

governed by the local Rent Control Acts and their Lordships were not called upon to decide the question of waiver of notice simpliciter under the

provisions of the Transfer of Property Act. Secondly, rent in the instant case has been accepted by the plaintiff while the appeal before the lower

appellate court was pending and a decree for ejectment had already been passed by the trial court. Thirdly, the acceptance of rent was not

categorical or unequivocal. The receipts granted by the plaintiff clearly show that the rent was accepted under protest The words appearing in the

receipt are ""Zabardasti rasped"" which mean that the plaintiff admitted having accepted the , rent but under duress. In these circumstances,

therefore, it cannot be said that the acceptance of rent by the plaintiff was voluntary so as to give rise to an inference of a clear intention on his part

to treat the lease as subsisting. This important feature of the present case puts the defendant completely out of court. It is well settled that once a

valid notice to quit is given to the defendant, the onus of proving that the notice was waived lies on the defendant. In the pleadings, the defendant

has not at all taken this point and could not have taken it because the rent was not accepted as long as the suit was pending before the trial court.

Furthermore, once a decree for ejectment is passed against the defendant, the defendant becomes a tresspasser and any acceptance of rent

thereafter must be presumed to be acceptance of rent merely as compensation for use and occupation of the premises unless the receipt shows an

intention to the contrary. Section 113 of the Transfer of Property Act, runs as follows :

''A notice given under section 111, clause (h), is waived with the express or implied consent of the person to whom it s given, by any act on the

part of person giving it"" showing an intention to treat the lease as subsisting.

A perusal of this section clearly shows that a waiver of the notice 10 quit would take place only if the lessor expresses his intention to treat the

lease as subsisting. The 'consent used in the section clearly implies a free consent and not a consent obtained by duress or pressure of a cum

stances. There can be no doubt that the acceptance of rent may be a circumstance to give rise to an inference of an intention of the lessor to treat

the lease as subsisting, but such a conduct on the part of the lessor must be clear and categorical leading to an irresistible inference of his intention

to treat the lease as subsisting. The conduct has to be taken in conjunction with the various circumstances. In the instant case when the plaintiff

accepted the rent under protest or duress, and took no action in withdrawing the suit against the defendant and further accepted the rent only after

a decree for ejectment was passed it can not be inferred as a matter of law that by accepting the rent the plaintiff had the intention to treat the lease

as subsisting In order to apply the provisions of section 113 of the Transfer of Property Act the essential require is 'consensus adidem' and this

appears to be completely wanting in the present case. In Pullin, Beban Shaw v. Miss Lila Day, reported in AIR 1956 Calcutta, 106. Mooker]ee J

refuse to regard mere acceptance of rent by the landlord as proof of his intention to treat the lease as subsisting. The learned Judge observed as

follows .

The is nothing in the present record to show that the plaintiff received the said monies as rents strictly so called which would operate to continue

the old tenancy. On the other hand, there is sufficient denial on her part on this point and circumstances support the san this state of things, the

receipt of the monies in question may well constitute acceptance of ""rents"" under the Rent Control Law in respect of the statutory tenancy under

that law. At any rate, it is by itself insufficient to lead to the necessary inference of the requisite intention on the plaintiff's part to continue the old

tenancy and thus constitute waiver of the notice to quit and in the light of decisions of this court of which reference be made inter alia to Panchanan

Ghose v. Haridas Banerje AIR 1954 Cal. 460 (B) and Mahadevo Prasad v. Smr. Sulekha Sarkar AIR 1954 Calcutta, 404 (C), the essential

requisite the necessary consensus adidem as it is often called would be wanting and a finding of waiver of the notice to quit, the onus to prove

which is undoubtedly on the defendant would not be justified.

Similar view was taken by a previous decision of the Calcutta High Court reported in AIR 1954 Calcutta, 404.

Similarly in AIR 1953 Nagpur, 219, B. P. Sinha C. J. as he then was observed as follows :

It is true that in some cases it has been held that after a notice to quit has been served on the tenant, if the landlord has received certain payments

by way of rent, he will be deemed to have waived the notice. But in this case not only had the landlord served the notice to quit but he had actually

instituted the suit for ejectment and for damages for use and occupation. If the defendant wished to insist upon the plaintiff withdrawing his claims

inclusive of the claim for ejectment and damages for use and occupation he would have entered into an agreement with him and then made the

payment. In that case, of course, the position would have been clear. But without insisting upon the plaintiff withdrawing his suit for ejectment and

for damages for use and occupation, if he made certain payments those payments cannot be taken to be inconsistent with the plaintiff's right which

he sought to enforce by the suit.

It is clear from the observations of his Lordship that acceptance of rent after having instituted the suit, without any attempt on the part of the

landlord to withdraw the suit, cannot be held to amount to waiver of notice,

A similar view was taken by Kidwai J. in AIR 1948 Oudh. 127, wherein it has been held that once a suit has been instituted any act of the lessor in

accepting the rent cannot by itself be evidence of an intention on his part to treat the lease as subsisting. In this connection, the learned Judge

observed as follows :

Once a suit has been instituted it cannot possibly be said that any act of the lessor shows an intention to treat the lease as subsisting unless he

withdraws the suit. He may renew the lease, in which case, it would not be a question for waiver but a question of fresh lease. In the present case,

not only had the lessor instituted the suit but she had obtained a decree for ejectment and she had attempted to execute that decreee...

..... ..... ..... .....

It is no doubt true that in both the receipts the word ""rent""' is used instead of the words ""damages for use and occupation,"" but in view of her

conduct, misuse of the word ""rent'5 would not indicate that the notice had been waived"".

In this case also it would appear that the rent was accepted after a decree for ejectment was passed by the court and his Lordship refused to

regard the circumstance as one amounting to waiver of notice.

In AIR 1949 Federal court, 124, their Lordships clearly indicated that the acceptance of rent must be as such and not without prejudice to the

right of the parties. Relying upon a Privy Council decision, 1928 P. C. 146, their Lordships observed as follows :

That such circumstances no fresh tenancy could be implied or presumed under S, 116 P. P. Act from payment and receipt of rents is shown by

the decision of the Privy Council in Kamakhya Narayan Singh v. Ram Rakha Singh and others 55 I.A. 212 ( AIR 1923 P. C. 146 ) In that case

the heirs of a grantee of a mokurrari istimarari patta, which was eventually construed to convey only a life estate, were in possession claiming the

tenure to be heritable and paid rent which the landlord accepted giving, however, receipts in marfatdari form, that is, in the name of original

grantee, so as not to prejudice his contention that the grant was not a heritable one and the persons who paid rents were not his tenants.

..... ..... ..... .....

This is to say, where the parties after the expiry of the lease pay and receive rents without prejudice to their respective contentions, it is to be

inferred that they have agreed that no assent to the holding over should be implied or presumed.

..... ..... ..... .....

But the position is different where the tenancy is at an end either by expiry of a notice to quit or by effluxion of time. In such a case the continuance

in possession by the former tenant would be wrongful and he would be liable to pay, not rent, but only compensatic for use and occupation,

circumstances, the lessor received the money sent as ""rent"" it could not be said that he took it ""wrongfully and if he made it clear that he received it

without prejudice to his right to insist that the tenancy had come to an end, there could be no question of his word making his act wrong, or of his

electing to affirm the tenancies. A fresh tenancy could arise only by agreement of parties and whether an agreement proper inference to be drawn from the conduct of the parties in the light of surrounding circumstances.

The observations of their Lordships of the Federal Court clearly indicate that in the present case when the plaintiff accepted the rent alter t decree

for ejectment against the defendant had passed, the mere use of the word ""rent ' could not possibly indicate that he had assented continuance of the

tenancy of the defendant.

Similarly in 1945 Bombay, 132, their Lordships of the Bombay High court observe following :

The argument of the appellant is that because the landlord accepted the amount sent as rent, although while accepting the same he stated that he

was receive it on account of compensation for use and occupation, he must in law deemed to have accepted it as and, therefore, there was a

waiver of the notice to quit. In my opinion, this line of argument is faulty, because it attempts to split the provision of S. 113 in two parts. It is an

attempt to read in S. 113 the words ""by acceptance of rent"" as an act resulting absolutely in the waiver of the notice to quit irrespective of the

question whether there was an intention to treat the lease as subsisting or not. It is true that under illustration (a) if an amount is sent as rent and is

'received as rent' there will be a waiver of a notice to quit. But the section does not provide that if an amount is sent as rent, but is received by the

landlord and accepted by him not as rent but as compensation for use and occupation that is receipt of rent In each case, according to the wording

of S. 113 it is for the court to determine whether the act in question (whether it is a receipt of the amount sent as rent or is the receipt of the amount

sent without any statement at all), discloses an intention to treat the lease as subsisting. If the answer to the question is in the affirmative then only if

there is consent, express or implied, of the tenant, there is a waiver of notice to quit.

Even in 1939 Bombay, 292, which has been strenuously relied upon by the counsel for the respondents, their Lordships clearly indicated that the

acceptance of rent after the institution of the suit may not itself amount to waiver of notice. While refering to a case of the Nagpur High Court relied

upon by the bench, their Lordships distinguished the said case and observed as follows:

In Ambadas v, Purushottam (Second appeal No. 597 of 1950 D/ 26121950 (Nag.) on which also reliance was placed by counsel for

respondents has in our judgment no bearing on this case. In that case Mr. Justice Deo observed and with respect rightly that illustration (a) to

section 113 of the Transfer of Property Act does not warrant the contention that acceptance of rent in every case is evidence to prove the intention

to treat the lease as subsisting especially when a suit in ejectment is instituted. That case, in our judgment has no application because in the present

case the acceptance of rent was prior to the date of the institution of the suit by the plaintiff.

Similarly in the case of Davies v. Bristou (.920) 3, K. B. 428, it was clearly held that mere acceptance of rent after the expiry of the notice to quit

could not be taken as evidence of the assent of the landlord to the continuance of the tenancy on old terms. The only case which has taken the

view that acceptance of rent by the landlord even during the pendencey of the suit would amount to a waiver of notice is AIR 1926 Calcutta, 763.

This was, however, a decision of a single judge and was severely criticised and dissented from in a later case of AIR 1954 Calcutta, 404 where

Mookarjee J. dissenting from this judgment observed as follows :

The decision of Buckland J. in AIR 1926 Cal. 763 (C) where he inferred waiver of the notice to quit from the landlord's withdrawal of deposit

from the Rent Controller did not take into consideration the various aspects from which this question of waiver ought to be approached and

considered and its criticism in the case of Navnitlal Chuni Lal Vs. Baburoa (No. 1) AIR 1945 Bombay 132 at page 134 (J) of the report is not

altogether unjustified. Lord Mansfiled's observation quoted at pages 134 to 135 of this latter report from the old English case of Doe v. Batten

(1775) 1 Cowp 245 (K) deserves careful consideration and in my opinion, the view of Sarkar J. in AIR 1951 Calcutta, 312 CA) and of the

Bombay High Court in the case of Baldeodas v. G. P. Sonawalla AIR 1948 Bom. 385 (L) is on the whole correct.""......

Moreover, in view of the authorities which we have cited we are, with very great respect unable to agree with the view taken by Justice Buckland

in AIR 1926 Cal. 763. Moreover, as pointed above, in the instant case, the rent receipt clearly shows that the rent was accepted under protest

and this by itself distinguishes the present case from the facts of the case reported in AIR 1926 Calcutta, 763, even if the said case may be held to

have been correctly decided.

In view, therefore, of the authorities discussed above, we are unmistakably of the view that in the facts and circumstances of the present case, the

acceptance of rent by the plaintiff under protest, after a decree for ejectment had been passed against the defendant and while an appeal against

the decree was pending before the lower appellate court, does not amount to waiver of notice so as to entail a dismissal of the suit. The finding of

the lower appellate court, therefore, that the plaintiff by accepting the rent had treated the tenancy as subsisting is legally erroneous and cannot be

sustained.

For these reasons, therefore, the appeal is allowed, the judgment and the decree of the lower appellate court are set aside, and that of the trial

court is restored. The plaintiff's suit is decreed with costs throughout.

I agree, (Sd.) J. N. Wazir.