Smt. Bimla Devi alias Vimla vs Vishan Dass

N.K. Kapoor, J.—This is defendant''s regular second appeal against the judgment of Additional District Judge, Gurgaon, dated 16.10.1990 whereby the appeal filed by her against the judgment and decree of the Senior Sub Judge, dated March 12, 1990 was dismissed.

The plaintiff filed a suit for possession against the defendant on the ground that the shop in, dispute was constructed in the year 1977 and so the provisions of the Haryana Urban (Control of Rent and Eviction) Act, 1973 are not applicable for a period of ten years from the completion of its construction. It was further averred that the tenancy was for a fixed period and after the expiry of that period, the defendant was occupying the shop as a statutory tenant. Though no notice was required for terminating such a tenancy yet the plaintiff served notice u/s 106 of the Transfer of Property Act calling upon the defendant to surrender the possession. Since the defendant has not vacated the disputed shop hence the present suit for ejectment of the defendant from the disputed shop.

The defendant put in appearance and filed written statement. It was admitted that there exists relationship of landlord and tenant between the parties. However, the defendant denied the other averments made in the plaint i.e. with regard to the construction of the building exemption of the building from the provisions of Haryana Urban (Control of Rent and Eviction) Act, 1973 (for short, the Haryana Act), jurisdiction of the civil court to try the suit and that no legal notice of the termination of tenancy was served upon him. It was further averred that the plaintiff has been receiving rent from the defendant regularly even after filing the suit and in this way, she is estopped from filing the present suit. Preliminary objections were raised that the suit is not maintainable in the present form, that the suit is bad for nonjoinder of necessary parties that the plaintiff is estopped by his act and conduct from filing the suit and that no notice u/s 106 of the Transfer of Property Act was served upon him.

The Plaintiff in his replication controverted the various pleas raised by the defendant and reiterated the allegations made in the plaint. He clarified that the rent received by him after the termination of tenancy was for use and occupation of the shop.

On the pleadings of the parties, following issues were framed:-

(i) Whether the plaintiff is liable to be ejected from the shop in dispute on the ground mentioned in Para No. 4 of the plaint ? OPP

(ii) Whether no valid notice u/s 106 T.P. Act was served on the defendant ? OP Parties.

(iii) Whether the construction of the disputed property was completed in December, 1977 ? OPP.

(iv) Whether the suit is not maintainable in the present form ? OPD.

(v) Whether the civil court has no jurisdiction to try the suit ? OPD.

(vi) Whether the suit is bad for nonjoinder of necessary parties ? OPD.

(vii) Whether the plaintiff is estopped by his act and conduct ? OPD.

(viii) Relief.

Under crucial issue No 3 the trial court came to the conclusion that the shop was constructed in December 1978. Under issue No. 2, it was held that defendant''s tenancy stood terminated. Under issue No. 1 it was held that the defendant is liable to be evicted from the shop in dispute. Issues No. 4 and 5 were decided against the defendant. Issues No. 6 and 7 were not pressed by the defendant so these issues were decided against the defendant. Resultantly the suit of the plaintiff was decreed with costs.

Before the first Appellate Court, the appellant assailed the finding of the trial court on issue No. 3. The Appellate Court after perusing the various documents placed on record which are in the nature of plan submitted by the plaintiff to the Municipal Committee, Gurgaon seeking permission for raising of certain construction, proof in regard to deposit of necessary fee, statement of the Building Inspector PW 1 and other witnesses examined by the plaintiff, came to the conclusion that there is no manner of doubt that the construction of the shop was completed some time in the month of December, 1977 So, the finding of the trial court in respect of issue No. 3 was affirmed. Next objection of the appellant pertained to decision of trial court in respect of issues No. 1 and 2. Defendant''s plea in this regard was that since the plaintiff accepted rent even after the filing of the suit, the notice terminating the tenancy stands waived in view of Section 113 of the Transfer of Property Act. For this the first Appellate Court first referred to the evidence led by the plaintiff with regard to the service of notice and came to the conclusion that the defendant was duly served with the notice dated 16.10.1985 and since the suit was instituted on 5.2.1986 i.e. long after the expiry of the notice period, the same was maintainable. As regards the plea of the defendant that since the plaintiff had received rent after the termination of the tenancy, the appellate Court came to the conclusion that the same was not received as a rent but for use and occupation of the shop. The first Appellate Court further observed that it is not even the case of the defendant in the written statement that by accepting rent the plaintiff has waived the notice. All that has been contended is that the plaintiff is estopped from filing the suit due to acceptance of rent. Waiver as such has not been pleaded by defendant nor this could be pleaded as the defendant has even denied the receipt of notice terminating her tenancy. Except for one solitary receipt for payment of rent, there is no evidence on record by which it could be inferred that parties intended to substitute a new agreement and as regards the receipt of rent during the pendency of the suit, the same has been explained by the plaintiff in his replication. In this way the court came to the conclusion that mere acceptance of rent does not amount to waiver of notice. Accordingly the appeal was found to be without any merit and the same was dismissed by the Appellate Court.

Learned counsel for the appellant has assailed the conclusions of the courts below with regard to the termination of tenancy by the alleged notice Ex. PW/7/3; with regard to the construction of the shop; with regard to the fact of receiving rent after the alleged termination of tenancy and its legal consequences. Elaborating the counsel urged that notice Ex. PW 7/3 is infact no notice in the eye of law. It is well settled that tenancy can be terminated only by a legal notice i.e. by giving tenant sufficient time to comply with the conditions of notice. Though the notice is alleged to have been served u/s 106 of the Transfer of Property Act yet the same is not in conformity with the same and this way the courts below have erred in law in concluding that a valid notice was issued by the plaintiff thereby terminating the tenancy of the defendant. Much emphasis was laid by the learned counsel as to the wording of this notice wherein it was mentioned that tenancy has been terminated forthwith but he was given 15 days time to vacate the premises. The argument though attractive is without any substance. A bare perusal of notice Ex. PW. 7/3 leaves no manner of doubt that the plaintiff intended to terminate the tenancy of the defendant giving her 15 days'' time to vacate the shop in dispute. This notice was served on the defendant by registered post as well as under postal certificate. Interestingly the defendant in his written statement in fact denied the factum of receipt of notice but has now chosen to assail the validity of the same by referring to the wording of the notice. Pleadings in the Muffasil Courts are often found to be deficient and so are to be construed liberally. The minor lapse in the notice in its wording cannot be so construed so as to oblitter real intention incorporated therein. The plaintiff vide notice Ex. PW. 7/3 intended to terminate the tenancy of the defendant giving her 15 day''s time to vacate the premises. In fact on the basis of the averments made in the plaint which have not been even controverted by the defendant, the tenancy initially was for a fixed term and so after its expiry the defendant became a statutory tenant and in this way no notice in fact was required to terminate such a tenancy. It is only by way of abundant caution that plaintiff chose to serve the notice in terms of Section 106 of the Transfer of Property Act asking the defendant to vacate the premises after the expiry of the stipulated period therein. Thus I find no merit in this contention of the learned counsel for the appellant.

Next submission of the learned counsel for the appellant is that even after the termination of tenancy , the plaintiff has been regularly receiving rent and so his acts amount to waiver. For this the learned counsel referred to Section 113 of the Transfer of Property Act and its illustration (a) which for facility of reference is reproduced hereunder:-

"113. Waiver of notice to quit - A notice given u/s 111 Clause (h) is waived, with the express or implied consent of the person to whom it is given by any act on the part of person giving it showing an intention to treat the lease as subsisting.

Illustrations.

(a) A, the lessor, gives, B, the lessee, notice to quit the property leased. The notice expires. B tenders and A accepts rent which has become in respect of the property sine the expiration of the notice. The notice is waived."

Before examinaing this, it would be appropriate to refer to the pleadings of parties in this regard. In the written statement the defendant pleaded that the plaintiff had been receiving rent regularly even after filing of the suit and this way the plaintiff is estopped from filing the suit. In replication, the plaintiff pleaded that after the termination of the tenancy, he received rent for use and occupation of the disputed shop. This pleading the replication although taken for the first time has gone unrebutted. This fact goes against the assertion of the appellant in view of the Division Bench judgement in Salig Ram and Another Vs. Shiv Shankar and Others, where it has been held that replication is a part of the pleadings and anything which is specifically stated therein and for the first time has to be controverted. In case the same is not controverted it must be presumed that the plea raised in the replication was accepted. For the plea of estoppel as well as waiver is the receipt dated 22.3.1986. Vide this receipt rent for February 1986 was paid. Since the suit in the present case was filed on 5.2.1986 this amount was received by the landlord during the pendency of the suit. Had there been any intention of waiving the notice or of creating a new tenancy then the suit itself would have been compromised and decided accordingly. There is no sufficient evidence on the record to suggest that the lessor intended to treat the lease as subsisting. As regards the receipt of rent vide receipt dated 22.3.1986, the plaintiff in his replication has specifically stated that this amount was received for use and occupation of the shop in dispute and not as rent. The word rent has not been defined. As has been held in Shivjit Singh v. Charan Singh,2 1973 R.C.R 43 there is no magic in the use of word rent when the clearest intention of the landlord was to claim compensation for wrongful use and occupation of the property after the termination of the tenancy. Whether there was any intention to treat the lease as subsisting is a question of fact. Both the courts after examining the evidence in this regard have come to the conclusion that there was no intention to treat the lease as subsisting. Thus I find no substance in the contention of the notice to quit. It is worth highlighting that plea of waiver was not taken by the defendant and in the absence of any such pleadings no such point can otherwise be examined at this stage. For this view I find support from the judgment of Bombay High Court in Hashmatrai and Another Vs. Tarachand and Others, Waiver as per Section 113 of Transfer of Property Act is a bilateral act of both lessor and the lessee i.e. both of them should intend to waiver the notice. In the present case, it is the case of the defendant that she did not receive any such notice. This way too plea of waiver did not arise on these facts. No other point is pressed or claimed. The appeal is devoid of any merit and the same is accordingly dismissed. No order as to costs.