J.S. PANESAR Vs. SANTOKH SINGH AND ORS.

JUDGEMENT

(1.) By the present petition under Article 227 of the Constitution of India, the petitioner has assailed concurrent judgment of two Courts below dismissing suit filed by the petitioner for possession of the premises in question. As this Court is not a Court of second appeal and the jurisdiction of this Court under Article 227 is limited, the only issue pressed before this Court is that the two Courts below wrongly came to conclusion that the notice served by the petitioner on the respondent/tenant stood waived while there was no plea of waiver taken by the respondent.

(2.) Brief facts relevant for deciding this petition are that the petitioner/landlord served notice dated 26.10.1998 on Smt. Bhupinder Kaur terminating her tenancy w.e.f. 30.11.1998 of the tenanted premises. At the time when notice was served the rent of the premises was Rs.25/- p.m., since the tenancy was protected under Delhi Rent Control Act, he could not have filed a suit for eviction on the ground of termination of tenancy, therefore, no such suit was filed and the rent was continued to be accepted. However, the petitioner thereafter requested Smt. Bhupinder Kaur to increase rent and it is admitted by the petitioner in his evidence that his request was agreed to and the rent was increased from Rs.25/- p.m. to Rs.45 p.m. w.e.f. 1st December, 2001. It is not disputed that petitioner had been issuing rent receipts initially of Rs.25/- p.m. and thereafter of Rs.45/- p.m. In his testimony the petitioner also stated that this rent was increased after admitting Smt. Bhupinder Kaur as his tenant and she continued to pay rent to the petitioner regularly thereafter. The trial Court on the basis of this testimony of the petitioner came to the conclusion that the notice dated 26th October, 1998 served on Smt. Bhupinder Kaur stood waived and a new relationship came into existence and Smt. Bhupinder Kaur continued to be a contractual tenant @ Rs.45/- p.m. till her death. The learned ADJ in appeal upheld this contention.

(3.) It is contended by the petitioner that mere acceptance of rent on the part of petitioner after service of notice would not amount to waiver since the petitioner could not have filed an eviction petition as tenancy of Smt. Bhupinder Kaur was protected under Delhi Rent Control Act. The petitioner could not have allowed the premises to be occupied without rent therefore, he had to continue accepting rent and acceptance of rent would not amount to waiver unless and until it was intended by the petitioner to waive the notice. He relied upon Sarup Singh Gupta V. S. Jagdish Singh & Ors., 2006 1 RCJ 89 wherein Supreme Court had held that mere acceptance of rent cannot amount to waiver of notice unless there was other evidence to prove that the landlord so intended. On the other hand counsel for the respondent submitted that it was a clear cut case of waiving of notice by conduct of the petitioner since the petitioner not only continued accepting rent @ Rs.25/- p.m. but later on increased the rent, admittedly treating Smt. Bhupinder Kaur as a tenant. If Smt. Bhupinder Kaur had not been a tenant and was living in the premises only under statutory protection of Rent Control Act then the landlord could not have increased the rent from Rs.25/- to Rs.45/- and the increase which he could have asked was as permitted by the provisions of Rent Control Act. The increase in the rent from Rs.25/- to Rs.45 p.m., almost double, showed that the landlord treated Smt. Bhupinder Kaur as tenant at new rate of rent and he gave up/waived his previous notice.