HARI SHANKAR Vs. CHAITANYA KUMAR AND OTHERS

JUDGEMENT

(1.) THIS case comes to us on reference by a learned Single Judge. For deciding the case only a few material facts need be stated.

(2.) WE are concerned with the shop No. 185, Bazar Lal Khare, Bulandshahr. Ghaitanya Kumar and Prem Kumar are the owners of the shop. Tej Singh is the tenant of the shop. Hari Shankar is a partner of Tej Singh in the business carried on in the shop. Chaitanya Kumar and Prem Kumar obtained permission from the District Magistrate Bui -andshahr, for instituting a suit for eviction of Tej Singh. They gave notice to him to quit the premises. The notice was served on him on 16 -10 -1964. Thirty days' period mentioned in the notice expired on 16 -11 -1964. Thereafter they instituted a suit for his ejectment on 23 -11 -1964. Hari Shankar was also impleaded as a Defendant in the suit. After the institution of the suit the Plaintiffs accepted rent from Tej Singh for the months of October, November and December, 1964. This acceptance tempted the Defendants to deploy the doctrine of waiver in their favour. They pleaded that it amounted to the waiver of the notice to quit. An issue was framed on this point. The decision went against them. The point was re -canvassed before the Single Judge. He felt that as there is a conflict between two judgments of this Court, the matter should be decided by a larger Bench.

(3.) THE question arising in the case before us is whether the acceptance, after the institution of the suit, of rent for a period after the time mentioned in the notice has expired amounts to the waiver of notice to quit Under Section 113 of the Transfer of Property Act. For the purpose of deciding the question in the circumstances of his case it is not necessary for us to enter into the intricate labyrinth of the case law upon Section 113. Admittedly, the premises in dispute are governed by the UP (Temp.) Control of Rent and Eviction Act, 1947. It has not been brought to our notice as to whether Tej Singh came into the premises as a contractual tenant or by virtue of an order of allotment in his favour Under Section 7 of the said Act. If he came into the premises as a contractual tenant, his tenancy was determined on the expiry of the period mentioned in the notice to quit. Thereafter he will obtain protection of the provisions of the Act. He would be immune from ejectment and would be popularity called as a "statutory tenant". While continuing in possession of the premises as a statutory tenant he would be liable to pay rent in accordance with the provisions of the Act. The same result would follow if he came to the premises by virtue of an order of allotment Under Section 7. In the result, after the expiry of the period mentioned in the notice to quit and the institution of the suit he became a statutory tenant under the Act and was liable to pay rent to the Plaintiffs. The mere acceptance by the Plaintiffs of the rent for November and December 1964, which was payable to them under the provisions of the Act, cannot accordingly amount to the waiver of notice to quit by them. In view of the provisions of the Act such acceptance remains equivocal. The Plaintiffs may maintain that they had accepted the rent for November and December 1964 as it had fallen due under the Act and not because they were minded to continue the relation of landlord and tenant. The burden is on the Defendant to show that the Plaintiffs accepted the rent as 'rent' and not as rent "due under the Act". We have not been referred to any such evidence on record.