JAGDISH CHANDRA Vs. BASANTI LAL

JUDGEMENT

(1.) THIS is an appeal by the tenant arising out of a suit in ejectment and for recovery of mesne profits.

(2.) THE suit shop is situate in the town of Udaipur. It was constructed in October, 1968. Basanti Lal admitted Jagdish Chandra as a tenant of this shop on and from 18th of January, 1969 under the rent note of that date Ex. 1. THE agreed rent was Rs. 150/ per month. Under clause 7 of the agreement the tenancy was fixed for one year but under clause 8 it was stipulated between the parties that the suit shop was liable to be vacated after one month's notice. On January 16, 1970 Basanti Lal determined the tenancy of Jagdish Chandra by notice with effect from February 18, 1970. THE tenant having failed to vacant the suit shop Basanti Lal brought the present suit under appeal on April 24, 1970, for ejectment and for recovery of Rs. 300/- as damages for use and occupation of the suit shop.

(3.) ANOTHER case on which reliance has been placed is Manicklal Dey Chaudhuri vs. Kadambini Dassi (2 ). In this case notice to quit was given to the tenant, but on his failure to vacate the premises the suit was filed. During the pendency of the suit rent was accepted by the landlord. Buckland J. held that where rent is accepted after the notice to quit whether before or after the suit is filed, the landlord thereby shown an intention to treat the lease as subsisting. His Lordship met the argument of the other side by the following observations: "one cannot logically say that the fact of accepting rent by itself shows an intention to treat the lease as subsisting if no suit has been filed and a different intention if a suit has been filed. The intention shown by the act itself must be the same in either case. Therefore by accepting the rent, the plaintiff in my opinion showed an intention to treat the lease as subsisting and acceptance of rent was waiver of the notice to quit notwithstanding the fact a suit had already been filed for the purpose of ejecting the tenant. It has also to be observed that u/s. 112 the acceptance of rent after suit has been exactly provided for, and it may well be argued that bad it been intended that acceptance of rent after suit should not operate as a waiver in the case of a notice to quit one would have expected that a proviso similar to that in S. 112 would have been incorporated in S. 113. "