KAMAKSHA PRASAD MISHRA Vs. PARWATIBAI SITAMBARNATH

JUDGEMENT

(1.) This Letters Patent appeal is by a tenant from a decision of Golvalkar J. in second appeal No. 204 of 1959 by which the learned Single Judge, reversing the decisions of the Courts below, decreed the plaintiff respondents' claim for eviction of the appellant from a house.

(2.) Shri S. C. Dubey, learned counsel for the appellant, first urged that after obtaining a permission from the Rent Controller under clause 13 of the C. P. and Berar Letting of Houses and Rent Control Order 1949, the plaintiff-landlords first gave a notice determining the tenancy with the end of the month of January 1956 on 4-1-1956; that thereafter the appellant continued to remain in occupation of the house and the plaintiffs demanded rent from him on 21-31956 for the month of February 1956 which was paid by the appellant and accepted by the respondents; and that the plaintiffs gave a second notice on 110-1956 terminating the tenancy as from 1-11-1956. It was said that the acceptance of rent for the month of February 1956 by the landlord after the first notice dated 4-1-1956 determining the tenancy amounted to a waiver of that notice; that the giving of a second notice to quit also constituted waiver of the first notice; that on account of the said acceptance of rent a fresh tenancy was created under Section 116, T. P. Act; that, therefore, permission to serve notice to quit granted to the plaintiffs by the Rent Controller before 4-1-1956 could not be availed of by him for filing a suit of ejectment after the service of the second notice; and that the plaintiffs should have obtained fresh permission from the Rent Controller for serving a notice to quit.

(3.) In our view, there is no force in any of these contentions. It is quite true that the landlord accepted rent for the month of February 1956 after serving the first notice to quit. Ordinarily acceptance of rent is a strong circumstance from which an inference can be drawn that the notice to quit has been waived. But that by itself is not sufficient to show waiver. Under Section 113, T. P. Act, a notice given under Section 111 (h), T. P. Act is waived with the express or implied consent of the person to whom it is given by any act on the part of the person giving it showing an intention to treat the lease as subsisting. It will be seen from the wording of Section 113 that in order to constitute waiver there must be an intention not only on the part of the lessor but also on the part of the lessee to treat the lease as subsisting. What has to be proved is whether the landlord accepted the amount of rent for a period after the expiry of the notice to quit from the tenant as rent and with an intention to treat the tenancy as subsisting. The question of waiver thus being one of intention, mere payment and acceptance of rent by the landlord after the notice to quit cannot by itself necessarily constitute waiver. It was pointed out by the Federal Court in Kaj Khushroo v. Bai Jerbai Hirjibhoy, AIR 1949 FC 124, that the assent of the landlord for the continuance of a tenancy is founded on the acceptance of rent as such and in clear recognition of the tenancy rights asserted by the person who paid it. It has been observed in Woodfall's 'Law of Landlord and Tenant' (page 1052-53, 25th edn.) that a demand of rent accruing subsequently to the expiration of a notice to quit is not necessarily a waiver of the notice, but is a question of intention which ought to be left to the jury. Now, here, the plaintiff-landlord Sitamvarnath was not asked any question in cross examination as regards the circumstances in which he made a demand for rent and the conditions on which he accepted it. On the other hand, the appellant said in his evidence that when he paid rent to the plaintiffs on 21-31956, he told them that he himself was going to vacate the house as he found it too small for his requirements. It is thus manifest that the payment and acceptance of rent after the first notice to quit was not with an agreement between the landlords and the tenant to treat the tenancy as continuing. It cannot, therefore, be maintained that the first notice to quit was waived by this acceptance of rent.