Tej Pal Sharma vs Ram Prakash Agarwal

Dilip Gupta, J.—The defendant of SCC Suit No. 1 of 1992 has filed this petition for setting aside the judgment and decree dated 9th April, 1996 passed by the Judge, Small Cause Courts by which the suit filed for rent, ejectment and mesne profit was decreed. The petitioner has also sought the quashing of the judgment and order dated 26th February, 2008 by which the Revision filed by the defendant u/s 25 of the Provincial Small Cause Courts Act, 1887 was dismissed.

The plaintiff-respondent filed the aforesaid SCC Suit for ejectment and recovery of arrears of rent with the allegation that he was the owner and landlord of the shop which had been given on rent to the defendant on 1st September, 1997 on a monthly rent of Rs. 450/-; that the shop was re-constructed in the year 1986 and the first assessment was thereafter made on 1st April, 1987 and hence the building was exempted from the operation of the U.P. Urban Buildings (Regulation of Letting, Rent & Eviction) Act, 1972 (hereinafter referred to as the ''''Act'') and that the defendant had neither vacated the premises nor paid the arrears of rent even though his tenancy had been terminated by a valid notice and arrears of rent had also been demanded.

In the Written Statement the defendant took a plea that the provisions of the Act were applicable to the building since it was not re-constructed in 1986 but was an old building of which the assessment was first made on 1st April, 1979.

The learned Judge, Small Cause Courts decreed the suit holding that the building was exempted from the operation of the Act u/s 2(2) of the Act as it was assessed on 1st April, 1987 and the tenancy had been terminated by a valid notice. Feeling aggrieved, the tenant filed a Revision which was dismissed.

Learned Counsel for the petitioner Sri Umesh Vats submitted that the Courts below committed an illegality in holding that the building was exempted from the operation of the Act. His contention is that the building was first assessed on 1st April, 1979 and the document in this regard was on the record and the contention of the landlord that the building had been demolished and new constructions were made in the year 1986 after which it was assessed on 1st April, 1987 were factually not correct.

Sri A.K. Gupta, learned Counsel appearing for the respondent-landlord, however, submitted that the Courts below, after appraisal of the evidence on record, have recorded a categorical finding of fact that the building was reconstructed in the year 1986 and was assessed thereafter for the first time on 1st April, 1987 and, therefore, in view of the provisions of Section 2(2) of the Act, the building was exempted from the operation of the Act.

The Courts below have found that the defendant was inducted as a tenant in the shop on 1st September, 1987 on the basis of a rent deed on a monthly rent of Rs. 450/- and that the rent deed clearly mentions that the shop was reconstructed in the year 1986. The Courts below have also recorded a finding of fact that earlier the disputed shop was a small window shop but in the year 1986, after demolition, it was constructed and two shops of equal sizes were constructed and one shop was given to the defendant on rent. These are finding of facts based on appraisal of evidence and do not call for any interference. The proviso to Section 2(2) of the Act stipulates that where the construction of a building is completed on or after 26th April, 1985 then the building shall be exempted from the operation of the Act for a period of 40 years from the date of completion of the construction. In such circumstances, there is no infirmity in the finding recorded by the Court below that the building is exempted from the operation of the Act.

Learned Counsel for the petitioner next contended that since rent was accepted by the landlord during the pendency of the Revision, the notice u/s 106 of the Transfer of Property Act stood waived. The Courts below have recorded a finding that the amount that was paid by the Revisionist was not given as rent but in compliance of the judgment and decree of the Judge, Small Cause Courts and so it cannot be deemed as payment of rent. This factual position has not been controverted by the learned Counsel for the petitioner.

Even otherwise, the Supreme Court in Sarup Singh Gupta Vs. S. Jagdish Singh and Others, observed that mere acceptance of rent does not amount to waiver of notice to quit unless there is any other evidence to prove or establish that the landlord so intended. The Supreme Court observed:

The learned Senior Counsel also relief upon a decision of a learned Single Judge of the Calcutta High Court in Manicklal Dey Chaudhuri Vs. Kadambini Dassi, wherein it was held that where rent is accepted after the notice to quit, whether before or after the suit has been filed, the landlord thereby shows an intention to treat the lease as subsisting and, therefore, where rent deposited with the Rent Controller under the Calcutta Rent Act is withdrawn even after the ejectment suit is filed, the notice to quit is waived. In our view, the principle laid down in the aforesaid judgment of the High Court is too widely stated, and cannot be said to be an accurate statement of law. A mere perusal of Section 113 leaves no room for doubt that in a given case, a notice given u/s 111 Clause (h), may be treated as having the part of the person giving the notice evincing an intention to treat the lease as subsisting. 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.

A somewhat similar situation arose in Shanti Prasad Devi and Another Vs. Shankar Mahto and Others, . That 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 three was a deemed renewal of the lease. Negativing the contention, this 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 filfilled, the mere acceptance of rent after expiry of period of lease did not signify assent to the continuance of the lease.

In the instant case, as we have noticed earlier, two notices to quit were given on 10-2-1979 and 17-3-1979. The suit was filed on 2-6-1979. The tenant offered and the landlord accepted the rent for the months of April, May and thereafter. The question is whether this by itself constitutes 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 constitute 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 the 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 the 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.

In view of the aforesaid decision of the Supreme Court, it has to be held that in the absence of any act on the part of the landlord showing any intention to treat the lease as subsisting, mere acceptance of rent after service of notice would not amount to waiver of notice to quit.

In the present case, as has been found by the Revisional Court, the amount was accepted by the plaintiff not with the intention of waiving the notice of termination but towards the payment of the decreetal amount.

There is, therefore, no merit in any of the contentions advanced by the learned Counsel for the petitioner. The petition is, accordingly, dismissed.