MOHAN LAL Vs. SAMEER KUNWAR

JUDGEMENT

(1.) This is a tenant's second appeal from the concurrent decisions of the Courts below decreeing the landlord's suit for his ejectment. Mr. Rajeshji Verma urged only one point in support of this appeal. He contended that the Courts below should have held that the landlord by accepting rent for the period after the termination of the tenancy and the filing of the suit had waived the notice of termination, or alternatively, created a fresh tenancy. The relevant facts on which this argument is based are these. The appellant Mohan Lal was the tenant of a shop in Oral of which the plaintiff respondent Sumer Kunwar is the landlord. The agreed rent was Rs. 10/8/- per month. The appellant did not pay the rent for 18 months and the landlord on 4-7-1957 served on him a combined notice of demand and conditional termination of tenancy. On 27-7-1957 the appellant sent a reply alleging that his previous remittances had been refused by the landlord and assuring him that the entire rent would be paid by 15-8-1957. However, he paid no rent even by that date and on 9-9-1957 the landlord filed the present suit for ejectment and for recovery of arrears of rent and mesne profits pendente lite. Sometime in January the appellant tendered to the landlord a sum of Rs. 189/- in respect of the arrears of rent and another sum of Rs. 73/8/-. Both these amounts were accepted by the landlord. There is no dispute that the former amount was in respect of rent which had accrued before the termination of tenancy and the entire controversy centres round the nature of the second payment and its legal effect. In his defence the appellant claimed that he had tendered this amount as rent and the landlord had accepted it as such and treated him as his tenant, while the landlord deposed that he accepted it as damages for use and occupation. The landlord issued a printed receipt in which the amount of Rs. 73/8/- was entered, in the blank space against the head "amount of rent received". In another place the sum of Rs. 10/8/-was entered in the blank space under the head "monthly rate of rent''. The date of receipt is 10th January 1958. On the next day, 11th January, the plaintiff moved an application before the Court for the amendment of his plaint alleging that the defendant had paid him Rs. 189/-towards the arrears of rent "and over the amount the mesne profits upto November 1957 after the filing of the suit". He asked for permission to withdraw the claim for arrears of rent. Notice of this application was served on the defendant's counsel. On or about 3oth May 1958 the appellant tendered another sum of Rs. 42/4/- which was also accepted, and the plaintiff again moved an application before the Court alleging that ha had received this amount as mesne profits and seeking permission to withdraw the claim under this head. Both these applications were allowed on the date of hearing which took place on 3-10-1958.

(2.) On the basis of these facts Mr. Verma contended that the suit for ejectment should have been dismissed on the ground that the landlord by accepting rent after the termination of the tenancy had created a fresh tenancy. Learned counsel relied strongly on the receipt issued by the landlord in his own handwriting in which the appellant was described as a tenant, the amount received as rent, and Rs. 10/8/- specified as the rate of rent. On the other hand, learned counsel for the respondent argued that the use of the words "rent" and "tenant" was the result of an error of which the appellant cannot take advantage as he was well aware that the landlord did not want him as a tenant and accepted the amount as compensation for use and occupation.

(3.) The courts below have observed that acceptance of rent by the landlord after the filing of the suit for ejectment does not amount to waiver of the termination of tenancy and they relied on two decisions of this Court Kamlapat Sahai v. Manho Bibi, AIR 1948 Oudh 127 and Moti Lal v. Basant Lal, AIR 1956 All 175 in which it was held that there can be no waiver after the landlord has filed his suit for ejectment. , But in both these decisions it was held that it is always open to a landlord to renew the lease at any time he pleases, and the real question in the present suit was whether a new tenancy had been created by the acceptance of rent by the landlord during the pendency of the suit, but the courts below did not consider it. The defendant had expressly raised it in para 10 of his written statement. He deposed that he paid rent and the landlord continued to treat him as a tenant and issued receipts indicating that he accepted the amount as rent. I shall now consider whether the plaintiff renewed or by his conduct must be deemed to have renewed the tenancy.