SHARDA SHARMA Vs. GULAB DEVI DHWON

JUDGEMENT

(1.) THIS is defendant's appeal which arises out of a suit for ejectment and arrears of rent filed against her by the plaintiff-respondent. The suit was decreed by the trial Court. An appeal filed against that decree by the defendant-appellant was dismissed by the Additional District Judge. The defendant has now approached this Court by filing this second appeal.

(2.) I heard the learned counsel for the parties. Sri D. S. Bajpai, learned counsel for the appellant, pressed four points in this appeal. Firstly, he contend ed that it had not been satisfactorily prov ed that the house in suit had been let out to the defendant-appellant by the plaintiff-respondent. On the other hand, it had been proved that the same had been let out to her by the plaintiff's hus band Dr. H. M. Dhaon. This was purely a question of fact. Both the Courts -below, on an appraisal of the evidence, have come to the conclusion that the house belonged to the plaintiff-respondent and it had been let out by her to the defendant-appellant. This finding of fact cannot be assailed in this second appeal. I may simply note that though it was admitted by the defen dant that she used to receive receipts for payment of rent not a single receipt was filed by her to show that Dr. Dhaon had on anyone of those receipts described him self as the landlord.

(3.) THE third point that was argu ed by the learned counsel for the appel lant was that the Courts below have found that during the pendency of the suit the defendant paid Rs. 2500/- to the plaintiff by means of several cheques. The defen dant had alleged that these cheques had been passed on by her towards payment of rent for the period after the notice to quit. It is argued that in view of this statement of the defendant it should have been held by the Courts below that there was a waiver of notice to quit under Section US' of the Transfer of Property Act even though the landlord had accepted these cheques towards payment of damages for use and occupation as found by the Courts below. In support of this contention he re lies on a Full Bench decision of Patna High Court in Chotu Mia v Mt. Sundari, AIR 1945 Pat 260 (FB). That decision is clearly distinguishable and it cannot apply to the facts of the present case for more than one reason. That was a case under Section 112 of waiver of forfeiture occa sioned under Section 111 (g) of the Trans fer of Property Act and not a waiver of notice to quit under Section 113. That there is a difference between these two types of waiver has been clearly laid down by this Court in Permanand v. L. Murari Lal. 1966 All LJ 1074. Secondly, in that case the rent had been paid to the land lord before a suit for ejectment was filed while in the present case the payments were made during the pendency of the suit. In order to constitute a waiver of notice to quit under Section 113 the ten ant has to prove that the landlord by ac cepting the rent for the period subsequent to the termination of tenancy had an inten tion to treat the lease as subsisting. In the absence of any such intention on the part of the landlord being proved, mere acceptance of an amount tendered by the tenant during the pendency of the suit for ejectment against him cannot amount to waiver. This has been the consistent view of this Court as expressed in Khumani v. Saktey Lal, AIR 1952 All 579; Moti Lal v. Basant Lal, AIR 1956 All 176 and 1966 All LJ 1074 (supra). In the present case all that was brought out on record was that the defendant passed on fourteen che ques of various date? from 12-7-1965 to 13-10-1967, totalling Rs. 2905/- out of which two cheques of Rs. 405/- had been dishonoured and the rest amounting to Rs. 2500/- had been cashed by the plain tiff. The defendant's contention was that there was a talk of compromise between her and the plaintiff's husband and in pur suance of that compromise these payments were made to him towards rent and the plaintiff's husband was agreeable to her continuing as tenant. The plaintiff's husbiuid Dr. Dhaon denied this fact and he stated that he had accepted these cheques towards the dama ges for use and occupation that had accru ed due after the institution of the suit, the suit having been instituted on 1-2-1965. Both the Courts below have disbelieved the defendant's version and they were inclined to accept the statement of the plaintiff's husband on this point This again is finding of fact which cannot be assailed in second appeal. It may, however, be stat ed that if there had been such a compro mise as alleged by the defendant, the sim plest way to give effect to it was to file written compromise before the Court or at least to obtain receipts from the plaintiffs' husband for these payments stating therein that the amounts rad been accepted by him towards rent for the subsequent period. But no such receipt or any other acknowledgment appears to have been ob tained and, in any case, none was filed by the defendant. Under these circumstances the lower Courts were justified in recording this find ing of fact. On these facts it cannot be said that the landlord had waived the notice to quit under Section 113 simply because on her behalf certain sums had been accepted during the pendency of the suit. After all those sums had to be paid by the defendant. If she had not paid these sums from time to time during the pendency of the suit, they would have gone on accumulating and a decree would have been passed with regard to -those sums also on which she would have been saddled with further costs. If to save her from those costs and to avoid accumula tion of arrears she made these payments, it does not necessarily mean that the land lord waived the notice to quit. Thus the waiver of notice had not been proved in this case.