Rambhau S/O Ganpat Rudrakar ... vs Mangtulal S/O Gowardhandas ...
2003 Latest Caselaw 1108 Bom

JUDGMENT

S.A. Bobde, J.

1. This Second Appeal is against the concurrent findings of the two Courts below decreeing the respondents' suit for eviction. The substantial question of law that is formulated for decision is whether the waiver of the first notice to quit can be inferred from the fact of the respondents having instituted and prosecuted subsequent proceedings for permission to terminate the tenancy. The question arises in this manner.

2. The appellant is the tenant of a shop block. The shop block is taken on lease from the respondent. In 1978-79, the respondents initiated proceedings for permission to terminate the appellant's tenancy under Clause 13(3)(i) and (ii) of the C. P. & Berar Letting of House and Rent Control Order, 1949 (hereinafter referred to as the "Rent Control Order"), This permission was thus sought on the ground of arrears of rent and for being in habitual default. The Rent Controller has rejected the permission on 4-10-1979. The respondent, therefore, appealed. The appeal was allowed on 30-6-1982. The respondent immediately on 11-7-1982 issued a notice under Section 106 of the Transfer of Property Act, 1882 (hereinafter referred to as the "Act"). By the notice, the respondents purported to terminate the tenancy with effect from 31-8-1998. The present suit which has come up in Second Appeal was instituted in pursuance of the notice to quit.

3. The respondent thereafter filed another proceeding for permission to terminate the tenancy on 15-1-1981 which was rejected. He acquiesced in that order and did not file an appeal.

4. Sometime in 1980-81, the respondent filed the third proceedings for termination of the tenancy under Clause 13(3)(ii) and (vi) of the Rent Control Order. In addition to the ground mentioned earlier, the respondent added the ground of bona fide need. On 8-11-1982 this permission was granted. However, the appellant filed an appeal which was allowed on 24-3-1983. The respondent, therefore, challenged the order in appeal by Writ Petition No. 2177 of 1983. This petition was eventually withdrawn on 7-3-1990. This petition was withdrawn because the appellant's Writ Petition No. 10 of 1983 challenging the grant of permission which preceded the present suit was dismissed.

5. According to Mr. Bhattad, learned counsel for the appellants, the initiation of the rent control proceedings by the respondent in respect of which permission was granted on 8-11-1982 and on the appellant's appeal being allowed, Writ Petition No. 2177 of 1983 was filed by the respondents, constitutes a waiver of the quit notice under Section 106 of the Act which terminated the appellant's tenancy with effect from 31-8-1982. The issue thus has to be decided on the basis of Section 113 of the Act. Section 113 of the Act along with its illustrations reads as follows:--

   

"113. Waiver of notice to quit. -- A notice given under Section 111, Clause (h), 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 illustrations
 

(a)      A, the lessor, gives B, the lessee, notice to quit the property leased. The notice expires. B tenders and A accepts, rent which has become due in respect of the property since the expiration of the notice. The notice is waived.  
 

(b) A, the lessor, gives B, the lessee notice to quit the property leased. The notice expires, and B remains in possession. A gives to B as lessee a second notice to quit. The first notice is waived." Now, it is clear from the facts above that the notice under Section 106 of the Act terminating the appellant's tenancy from 31-8-1982 was given by the respondents on 11-7-1982, on the date on which the appellant's tenancy stood terminated i.e. on 31-8-1982, the respondent had not initiated the fresh proceedings for permission to terminate the tenancy. These proceedings were initiated on 8-11-1982. Therefore, the initiation of the proceedings cannot constitute an act on the part of the respondent which can be held as exhibiting his intention to treat the lease as subsisting. However, according to Mr. Bhattad, the Rent Controller had granted permission on 8-11-1982 on the respondent's application for permission to terminate the tenancy. Again the appellant's tenancy appeal was allowed on 24-3-1983. The respondent-landlord challenged that order by filing Writ Petition No. 2177 of 1983. According to the learned counsel, the act of challenging the order by which the appellant's appeal was allowed and the permission to the respondent was set aside by a Writ Petition constitutes an act which shows an intention to treat the lease as subsisting.

6. Now it may be realistic to say that the Writ Petition was filed by the respondent on the basis that the lease is subsisting. However, filing of this Writ Petition was in a sense, though not in law, a continuation of the appeal by which the respondent had sought permission to terminate the tenancy for which an application was made in the year 1980-81 i.e. prior to the issue of the notice under Section 106 of the Act. Its origin was thus prior to the issue of the notice for ejectment. However, even if for a moment, the act of filing the Writ Petition is taken to be an act which shows an intention to treat the lease as subsisting, it would constitute a waiver under Section 113 of the Act only if that act was with express or implied consent of the tenant. That is what the Section requires. It is clear from the Section that the notice of ejectment is waived not only by a subsequent act on the part of the person giving such a notice doing an act which shows an intention to treat the lease as subsisting, but only when such an act is accompanied by an express or implied consent of the tenant or the lessee. In other words, the mere act of the lessor showing an intention to treat the lease as subsisting is not sufficient to constitute a waiver. That action must have the express or implied consent of the lessee whose consent to the act must exist.

7. In the present case, clearly the parties have been litigating against each other. Admittedly, there is no express consent of the appellant to the act of the respondent-landlord in initiating and prosecuting the permission to terminate the tenancy. What must be clearly seen in the present case is that the act which is said to constitute an intention on the part of the lessor respondent to treat the lease as subsisting is the institution and the prosecution of the permission to terminate the tenancy after the notice to quit was given on 31-8-1982. As observed earlier, clearly the institution cannot be considered to such act because the proceedings to terminate the tenancy was initiated in the year 1980-81 when the notice of ejectment was not given. Therefore, what remains to be considered is the act of the respondents in Writ Petition No. 2177 of 1983 challenging the order allowing the tenant's appeal against the order granting permission to the landlord to terminate his tenancy. Now clearly there is nothing from which it can be inferred that the appellant consented to the filing of the Writ Petition which, in my view, does not display an intention to treat the lease as subsisting. There is no doubt that the appellate authority has refused permission to the respondent to terminate the tenancy and the respondent had, therefore, challenged that order by a Writ Petition. This was on the basis that there was a lease in existence. However, what Section 113 requires is an "intention to treat the lease as subsisting" i.e. something more than a mere acknowledgment of the mere existence of the lease. What is necessary is that the act must show an intention on the part of the lessor to treat the lease as subsisting. Clearly, in my view, there was no such intention. The respondent had initiated the proceedings before the quit notice which took effect from 31-8-1982. The rest of the proceedings were a mere continuation and the Writ Petition must in this sense be treated as a continuation of the same proceedings. It does not appear that by the mere filing of the Writ Petition, the lessor intended to continue the lease to treat the lease, as subsisting. Even otherwise, it is equally important that there was no consent on the part of the appellant that the respondent's act of filing the Writ petition which is an act to show the intention to treat the lease as subsisting. Admittedly, the appellant-tenant has done no act such as the payment of rent by the appellant to show that the appellant intended to treat the lease as subsisting.

8. In Tayabali v. Asha and Co., , Their Lordships treated the act of payment of rent by the tenant as exhibiting an intention to treat the tenancy as subsisting. What we have in this case is not such an act of payment of rent or any other act which shows an intention to treat the lease as subsisting. What we have here is a mere resistance in the form of pleadings to the respondent's prayer for permission to terminate the tenancy.

9. In Chaturbhuj v. Mangnibai, 1958 NLJ 250, a Division Bench of this Court took the view that a landlord who had served the notice of ejectment on the tenant had accepted the rent and then served another notice asking the tenant to vacate must be taken to have waived the first notice. This case is clearly distinguishable from the facts of the present case inasmuch as the respondent here has not issued the second notice of ejectment but has actually pursued the application for permission to terminate the tenancy by way of Writ Petition which he did not contest and withdrew.

10. In Ramjilal v. Gulabrao, 1978 Mh.LJ. 850, this Court took the view that the intention on the part of the landlord to treat the lease as subsisting is necessary to constitute a waiver and the mere acceptance of money after institution of the suit will not allow the waiver unless after acceptance of the money, the landlord abandons the suit. Applying the ratio of this decision to the present case, it is clear that there is no abandonment of the suit by the respondent who has showed more than necessary vigor in pursuing the ejectment proceedings. In the said case, the learned single Judge of this Court observed as follows:--

"What is necessary even under Section 113, Transfer of Property Act is, on the part of the recipient of the notice, an intention or consent to have the notice given to him waived and on the part of the person giving notice, an intention to waive the notice and treat the lease as subsisting. The essence of contract namely the parties being of one mind is necessary. A waiver of notice to quit cannot be spelt out or merely inferred by an act on the part of the one and either one of the actions or any act which does not thereby spell a contract or agreement between the parties to a particular effect spelling a waiver."

I am of view that it is not possible in this case to infer consent on the part of the appellant to have the notice waived and treat the lease as subsisting. The parties were not of one mind. For such an inference, there must be a clearest indication that the recipient of the notice intended and consented to have the notice given to him waived and an agreement on the part of both in respect of such waiver. Mr. Bhattad, learned counsel for the appellants, who argued the case with great persuasiveness also referred to illustration (b) to Section 113 and submitted that the mere fact of the appellant having remained in possession may be treated as consent to have the notice waived. It is not possible to accept this contention. In the illustration, the possession of 'B' merely shows that 'B' has not abandoned the leave when the lessor issues the second notice. What the enactment really contemplates is an active covenant of the lessee to the act of the lessor treating the lease as subsisting. However, in every case, both sides of the coin would have to be seen, viz., the act on the part of the lessor showing an intention to treat the lease as subsisting consent of the lessee to such an act. Thus apart from the fact that the mere fifing of the Writ Petition in continuation of an application made prior to issue of the ejectment notice not being equivalent to issuing a second ejectment notice and, therefore, not an act which treats the lease as subsisting, I am of view that there was no connection of the lessee to that act. To qualify for the Section to apply to the present case, I am satisfied that there was no waiver as contemplated in Section 113 of the Act.

11. There is, therefore, no merit in the second appeal which is hereby dismissed.