JAMILUDDIN KHAN Vs. NIAZ AHMAD

JUDGEMENT

(1.) This second appeal arises out of a suit for the recovery of arrears of rent and ejectment of the defendant-appellant. The suit was decreed in full by the trial Court and the decree was affirmed by the lower appellate Court. The appellant challenges the decree only to the extent it relates to his ejectment.

(2.) The first question raised by the appellant was about waiver of the notice under Section 106 of the Transfer of Property Act. The notice was served on the appellant on 5th April. But the landlord accepted rent from the appellant for the period 1st April, 1959, to 31st October, 1959, on 20th November, 1959. The contention, therefore, was that the notice under Section 106 of the Transfer of Property Act was waived by the land-lord when he accepted rent for the aforesaid period. Ganga Dutt Murarka v. Kartik Chandra Das AIR 1961 SC 1067 is, however, complete answer to this contention. It has been held by their Lordships of the Supreme Court that where a contractual tenancy to which the rent control legislation applies has expired by afflux of time or by determination by notice to quit and the tenant continues in possession of the premises, acceptance of rent from the tenant by the landlord after the expiration or determination of the contractual tenancy will not afford ground for holding that the landlord has assented to a new contractual tenancy.

(3.) The only other question raised in this second appeal was whether the landlord could maintain the suit for ejectment on the basis of the permission granted for the ejectment of the appellant, by the Commissioner. Section 3 (1) of the U. P. Control of Rent and Eviction Act, III of 1947, prohibits the filing of a suit for the ejectment of a tenant except with the permission of the District Magistrate on any one of the grounds mentioned in Clauses (a) to (g) of Sub-section (1) of Section 3; aforesaid. In this particular case the District Magistrate refused the respondent permission for filing a suit for the ejectment of the appellant. The respondent, therefore, moved an application-before the Commissioner under Sub-section (2) of Section 3. This application was allowed and permission was granted to the respondent by the Commissioner under Sub-section (3) of Section 3. Sub-section (1) permits a suit being filed with the permission of the District Magistrate and the contention of the appellant, therefore, was that it is only District Magistrate's permission which can entitle a landlord to file a suit for the ejectment of the tenant and not the permission granted by the Commissioner.