Union of India vs Additional Distt.Judge, Vth, Kheri.

Heard Mr. Sharad Kumar Srivastava, learned counsel for the petitioners and Mr.Hari Prasad Srivastava, learned counsel for opposite party No.3. The petitioners have challenged the judgment and order dated 18.3.1998 passed in S.C.C. Suit No. 13/95, whereby the opposite party No.3plaintiff''s suit for ejectment has been decreed as also the order dated 10.4.2000 passed by the Additional District Judge, VIth, Kheri i.e. opposite party No. 1 in S.C.C. Revision No. 8/1981, whereby the revision has been dismissed upholding the order passed by the Small Cause Court.

Opposite party No.3plaintiff filed a suit for ejectment on the ground that the house in question was taken in rent by the defendantpetitioner at the rate of 500/ per month on 10.7.1989 for a period of five years under lease agreement which expired on 9.7.1994. On expiry of term of lease the plaintiff asked the defendants to vacate the house in question, but when they did not vacate the same, the plaintiff sent registered notice to the defendants on 10.1.95 and 11.1.1995 for ejectment. The defendants did not reply of the same. They contested the suit on the ground that even after expiry of period of lease, the lease continues month to month as the plaintiff accepted the rent thereafter also and once the plaintiff accepted the rent after termination of period of lease, the lease can be said to be month to month lease, accordingly, the notice for ejectment itself becomes meaningless and ineffective. The trial court framed several issues and decreed the suit in the light of the decision of this Court rendered in the case of AIR 1972 (All) 435 (V 59 C 119), Lucknow Bench, Smt. Sharda Sharma v. Smt. Gulab Devi Dhwon, in which it has been held that the tenant has to prove that landlord by accepting the rent for the period subsequent to the termination of tenancy had an intention to treat the lease as subsisting.

Since in the present case, the plaintiff has categorically stated that he does not want to let out the house in question further as he has personal requirement of that portion of house, in such effect the notice of ejectment survives and it can be given effect to. The revisional court has held that the defendants failed to show the intention of the plaintiff to continue the tenancy as against the terms and conditions contained in the written agreement dated 10.7.1989 which is on record. In the absence of any intention on the part of the landlord being proved mere acceptance of amount tendered by the tenant during pendency of the suit for ejectment against him does not amount to waiver. Since in the present case there is no intention on behalf of the plaintiff to continue the tenancy and the period of tenancy has already expired as per agreement, the revisional court has held that the trial court has rightly decreed the suit for ejectment. In support of his contentions the learned counsel for the petitioners has placed reliance on the following case laws:

AIR 1998 Allahabad 235 : (1998 All LJ 1395) Central Bank of India v. Manohar lal and others, in which it has been held that "after expiry of five years period contemplated in the original lease, the lease was subsequently renewed on the request to the tenant but at the same time the landlord accepted the rent from the tenant and tenant''s continuing possession was consented by the landlord. Under these circumstances, within the meaning of Section 106 of the Transfer of Property Act status of the revisionist will be a tenant by holding over."

AIR 1994 All 2221 : (1994 All LJ 970) Punjab National Bank v. Ganga Narain Kapoor, in which it has been held that " the lease being month to month in view of the provisions of section 106 of the Transfer of Property Act could validly be terminated by a notice of 30 days on either side."

He further submits that in the aforesaid cases it has been held that the notice of ejectment shows intention of landlord that he does not want to keep the defendant as tenant and he determines the tenancy to handover the vacant possession.

AIR 1966 All 623 Ram Dayal v. Jwala Prasad, in which the question for determination was whether the acceptance of rent for a period subsequent to the notice to quit during the pendency of the suit would not amount to such a conduct on the part of the plaintiff so as to result in the waiver of the notice to quit. In this case, this Court has held that acceptance of the rent for the period subsequent to notice to quit during the pendency of the suit, that is after the institution of the suit, can be treated on a different footing than the acceptance of such rent prior to the institution of the suit.

To substantiate the facts that opposite party No.3 accepted rent, the petitioners have produced the statement of opposite party No.3 (P.W. 1), in which he admitted that he received rent till November, 1997.

On the other hand, learned counsel for the opposite party No.3 submitted that the action of the landlord on the basis of which the plea of waiver is raised must show an unequivocal intention of the landlord to treat the lease as subsisting. Once the landlord files suit for ejectment after issuing notice of termination of tenancy something more than mere acceptance of rent is required to indicate that the landlord accepted the rent with a view to treat the lease as subsisting; whereas in the present case, no such intention of the landlord can be inferred. Far from treating the lease as subsisting, the landlord persisted in claiming that he was entitled to decree for ejectment.

In support of his contentions he cited the following case laws:

Dr. A.S. Raj v. District Judge, Lucknow and others, 1982 Allahabad Rent Cases 515: (1982 All LJ 1200), Jhamman Das v. Ram Krishna and others, 1986 (1) Allahabad Rent Cases 427, Union of India and another v. Sri Sudershan lal Talwar, 2002 (20) LCD 891) and Smt. Sharda Sharma v. Gulab Devi Dhwon., AIR 1972 Allahabad 435.

After considering the submissions of the learned counsel for the parties as well as going through the decisions referred hereinabove, I am of the view that acceptance of rent even after expiry of term of lease agreement does not make ineffective the notice issued for ejectment unless the landlord acquiesced to continue the tenancy by his/her overt act. In the present case, the opposite party No.3 indisputedly through statement as P.W. 1 admitted that he received rent till November, 1997 but he pursued his suit for ejectment and got it decreed. He also contested the revision actively. Accordingly, it cannot be said that he acquiesced to continue the tenancy rather the landlord has right to charge rent even after expiry of term of lease agreement till occupancy of rented house by the tenant. Therefore, I do not find any error in the orders impugned.

The writ petition is dismissed.