Haribhau S/O Sadashiv Watane vs Raju S/O Daulatrao Borkar And Ors.
2004 Latest Caselaw 440 Bom

JUDGMENT

A.H. Joshi, J.

1. Revision petitioner - is the landlord original plaintiff. The defendant was occupying the room used is a Shop admeasuring 10 ft x 8 ft on monthly rent of Rs. 80/- per month. The landlord served on the defendant a notice of ejectment - Exhibit 22 alleging that the tenancy was monthly commencing on the first day according to English Calender and since respondents did not pay the rent and were in arrears of rent and that the tenancy was thereby terminated, the tenant was called upon to restore the land to the land owner the possession of the property. The notice also contained that onwards the date of termination of tenancy the respondents would be liable to pay the compensation every month Rs. 10/- per day. The notice was dated 3rd March, 1992 and the tenants were called upon to deliver the possession by the end of March, 1992 and in any case on 1st April, 1992. The tenants failed to deliver the possession in spite of the service of notice and the landlord thereupon filed the Regular Civil Suit No. 432 of 1992 [Old No. 237 of 1990] in the Court of Civil Judge, Junior Division, Chandur Bazar.

2. The Plaint which was tendered on 1st April, 1992 consisted the prayers for recovery of arrears of rent in a sum of Rs. 800/- for a period from 1st February, 1991 to 31st March, 1992 and a decree for possession.

3. Upon the suit summonses the defendant appeared and filed written statement opposing the claim towards the arrears on the ground that there is no rent arrears whatsoever as the entire rent amount was paid from month to month. In the Special Pleas the defendant pleaded that the tenancy commences from 16th day of each month. Further that the defendants' father had paid the rent upto January, 1992 and after the death of father of the defendants on 9th February, 1992, the rent for the month of February could not be paid. As to the practice of payment of rent, the defendants pleaded that a diary relating to the remittance of rent was maintained. However, that diary was retained by the father of the defendants and was not returned. According to the defendants they have regularly paid the rent after March, 1992 and that the defendant denied the story of arrears of rent. In paragraph 10 of the Written Statement a specific plea that was raised reads :

"Without prejudice to the above contentions, the defendants submit that the plaintiff has waived the Ejectment Notice by accepting the rent for a period subsequent to the notice of ejectment. ------------."

Proceeding with the hearing of the suit, the learned Trial Court framed various issues, however any issue relating to the plea of waiver was not framed.

4. Perusal of the record also does not reveal that the defendants had moved an application for framing additional issue or recasting thereof. While the plaintiff was in the midst of the cross-examination as P.W. 1 he was confronted with the plea of waiver by agitating the suggestion in the cross-examination that the plaintiff had issued the second notice. The plaintiff sought permission from the Court to produce it which is at Exhibit 29 the contents of the second notice -Exhibit 29 expressly contain the following :

(a) That Daulatrao Borkar was a tenant on the suit property and that the defendants are the heirs and the plaintiff has already issued a notice of ejectment and filed the civil suit;

(b) In the said suit defendant had raised plea that on account of acceptance of rent, notice stood waived and tenancy commenced from 16th of the month;

(c) Without prejudice to the plaintiff's right in the said suit the plaintiff was issuing the said notice;

(d) By the said notice plaintiff called the defendant to deliver the possession of the suit property treating that the tenancy commenced from 16th by treating the notice of 15 days demanding the possession on 31st August, 1993 and on or before 1st May, 1993.

5. The landlord had produced in the trial Court the first notice Exhibit 22 as indicated above, second notice exhibit 29 as aforesaid and the postal acknowledgment of the first as well as the second notice of ejectment, which were duly accepted. The defendants in addition to their oral evidence produced money order coupon towards the payment of rent which are in Exhibit 36 to 51 between the period of March, 1992 to February, 1994. Except exhibit 46 receipt dated 22-2-1993 which is for Rs. 160/-, Exhibit 50 which is dated 20-7-1993 for Rs. 160/- and Exhibit 51 which is dated for Rs. 320/- all other receipts are for a sum of Rs. 80/- being rent towards the month completed. Two amongst receipts exhibit 36 and 37 only one receipt except this consists of same writing of "accepted under protest". Other documents filed by the tenants are two diaries at Exhibit 52 which consist of some notes written in pencil as well as some in ball pen. These entries if perused indicate some payment which is prior to 1990, these diaries though are exhibited are not proved.

6. After reading the entire evidence and submissions the learned trial Court had decreed the suit towards the arrears of rent in a sum of Rs. 800/- and for possession by the Judgment and Decree of the Trial Court dated 17-7-1996.

7. Dissatisfied by the aforesaid Judgment and Decree the defendants carried a regular civil appeal before the Additional District Judge, Achalpur which is registered as Regular Civil Appeal No. 90 of 1996, it was admitted and was finally decided by the Judgment and Order dated 22nd October, 1999, which is under challenge in the present revision.

8. The learned appellate Court while partly allowing the appeal confirmed the decree towards the arrears of rent and modified the decree by reversing the portion in relation to decree for possession. The learned appellate Court formulated the questions for his determination as under :

"1) Whether the defendant has fallen in arrears of rent of Rs. 800/ for ten months till the date of suit?

2) Whether the notice to quit given to defendant on 3-3-1992 is waived by the plaintiff?

3) To what reliefs is the plaintiff entitled if any?"

9. The point No. 2 formulated by the learned Appellate Court is based upon the specific ground which has been raised in the memo of appeal in the ground No. 7 as can be read from page 19 of paper book: which is quoted below for ready reference :

"That the learned lower Court ought to have held that by issuing second notice dated 19-7-1993 and also by accepting the rent subsequent to the notice dated 3-3-1992 (i.e. First notice), the landlord created fresh tenancy in favour of the tenants appellants. Hence, the findings of the learned lower Court are against the admissions of the landlord in his deposition. Therefore, the order/finding/judgment of the learned lower Court are erroneous and it causes great miscarriage of justice."

The objection as to the waiver of notice of ejectment i.e. the notice dated 3rd March 2002 - Exhibit 22 of the Trial Court was based in the written statement in paragraph 10 is indicated herein above. On the basis of the contentions as to acceptance of the rent the ground of waiver has, however been agitated in the appeal under plea that the second notice dated 19th July 1993 coupled with contention that acceptance of rent results in waiver of first notice.

10. The learned first appellate Court has dealt with the question of waiver in paragraphs 14 and 15 of his judgment. The learned appellate Court rightly observed that "the intention as to waiver of notice can be gathered from the conduct of the parties. In order to create new tenancy the act of parties must be voluntary and with definite intention to create fresh tenancy". Having observed in the judgment the appellate Court proceeded to find out as to whether the conduct of the parties constitute waiver and a fresh tenancy. The learned first appellate Court further observed in paragraph 14 by way of his observations and finding which is quoted below, shall be more useful:

"In the instant case, the tenant presumably remitted the amounts as rents with the intention of creation of fresh tenancy and the landlord also went on accepting the same, as already said without protests. This shows that the landlord never expressed or gave any indication that the amounts tendered to him by the tenant was accepted by him as the compensation which in other words means that the landlord impliedly assented to the defendants continuing in possession and waive the notice with that specified intention on his part to treat the lease as subsisting. This inference gets strength from the plaintiffs second notice to the tenant given on 19-7-1993 (Exhibit 29)."

The appellate Court further observed in paragraph 15 that - Although in the said notice it is stated by its giver that

"without prejudice to the suit filed and his rights". The notice unambiguously indicated that the landlord never intended or meant to determine the tenancy by his first notice dated 3rd March 1992."

11. These findings are challenged by the petitioner in this Court. In support of the challenge the learned counsel appearing for the petitioner relied upon two judgments namely : 1975 Mh.L.J. Page 750, Hashmatrai Hiranand Sindhi and Anr. v. Tarachand Laxmichand Mohota and Ors. and 2002(4) Mh.L.J. Kishorilal Laxminarayan Chandak v. Leelabai wd/o Nandiram Holani and Ors..

12. In the first case of Hashmatrai the question that had arisen for consideration before this Court was as to whether the act of plaintiff in acceptance of rent after filing of the suit which was continuing can be treated as an intention to continue or treat the very lease in substance and shall amount to a waiver. The Court [His Lordship B. C. Gadgil as he then was] observed after considering the facts of the case and the law as cited that:

"In the present case also the plaintiff had filed the suit and as such acted on the termination of the tenancy. They cannot be said to have waived notice by accepting some amount during the pendency of the suit. It appears very difficult to uphold the contention of the appellants that a termination of tenancy which has been made as a cause of action for filing the suit should be treated as done away with on account of the alleged waiver by acceptance of Rs. 35/-. I would therefore, hold that the contention of waiver is not permissible for want of plea and even on merits that plea must fail."

13. In the second case i.e. of Kishorilal Laxminarayan, this Court referred to reported decision , Ganga Dutta Murarka v. Kartik Chandra Das and Ors. this Court (Coram : Justice D.Y. Chandrachud) quoted the observations of Supreme Court that after referring to provisions of 116 that it is well settled that where a contractual tenancy to which the Rent Control Legislation applies has expired by efflux of time or by a notice to quit and the tenant continues in possession of the premises, acceptance of rent by the landlord after the expiration or determination of lease, by virtue of the statutory protection conferred on the tenant, will not afford a ground for holding that the landlord has assented to a new contractual tenancy.

In the very judgment in paragraph 14 referring to the very Supreme Court Case, this Court has held that --

"Where a landlord makes a claim of rent from a tenant, who is within the fold of the statutory protection conferred by the Rent Act or Rent Control Order, the claim or demand for rent can not be regarded as amounting to an intention to waive the earlier notice to quit or as being reflective of an intention to create a fresh contractual tenancy."

14. Though the position referred to as dealt in the Judgment of the Supreme Court referred to above is one to which Rent Act applies i.e. where the tenant enjoys the larger protection than under the Transfer of Property Act, the aforesaid position has been discussed, what emerges from the judgment cited by the counsel for the petitioner and discussed herein above is that the fact of demand or acceptance of rent will not ipso facto constitute waiver and it will have to be viewed in the facts and circumstances of the case.

15. Learned counsel appearing for the respondent - tenant relied upon the Judgment of the Supreme Court reported in 1977 SC 102, Tayabali Jaferbhai Tankiwala v. Ahsan and Co. and Ors.. In this case considering the question of waiver their Lordships of Supreme Court referring to the illustrations quoted below Section 113 of the Transfer of Properties Act observed that

"Where a tenancy is determined by a notice to quit it is not revived by anything short of a new tenancy and in order to create a new tenancy there must be an express or implied agreement to that effect and further that subsequent notice to quit is of no effect unless, with other circumstances, it is the basis for inferring an intention to create a new tenancy after the expiration of the first."

The above observations of the Supreme Court in paragraph 5 of the Judgment are based on the Judgment of Privy Council in Harihar Banerji v. Ramshahi Roy 45 Ind App 22 : AIR 1918 PC 102, and these observations do not in any manner help the respondent-tenant to extent whatsoever.

Though the learned counsel relied on the aforesaid judgment of the Supreme Court and the finding quoted herein above did not in any manner support the plea that issuance of second notice or acceptance of rent would ipso facto constitute waiver.

15-A. The waiver ultimately will depend upon the facts of the case and the conduct of the parties. In the light of the legal position that emerges from the discussion above, the facts of the case which can be clear from the dates mentioned hereinafter namely :

a]       First quit notice - 3rd March 1992
 

b]      Suit filed - 1st April 1992
 

c]      Rent paid between March 1992 to February 1994
 

d] Second quit notice of ejectment - 19th July 1993.
 

The second notice has been issued without prejudice to the first notice and with a specific reference to suit, earlier notice etc. and the fact that the decree for arrears has been passed and is confirmed to the extent of arrears of the first appellate Court and has not been challenged by the opponent thereafter reveals a positive conclusion that the act of the landlord did not result in waiver.

16. In the background that there were arrears of rent by virtue of the judgment and decree of the trial Court as confirmed by the first appellate Court the Court can not ignore the Section 59 of the Indian Contract Act, which reserves absolute privilege for the person receiving the amount as to appropriation when payment is made without qualifying the appropriation. It shall be useful to refer Section 59 which reads as follows :

"59. Where a debtor, owing several distinct debts to one person, makes a payment to him, either with express intimation, or under circumstances implying, that the payment is to be applied to the discharge of some particular debt, the payment, if accepted, must be applied accordingly."

17. In the present case the landlord pleaded that there existed the arrears of rent and prayed for a decree. During the pendency of the suit for payment through money order had come forward from the tenant. Oral evidence of the tenant does not specify any details such as any period for which the money orders were sent. True it is that the landlord has not brought before the Court the money order message slips which may otherwise have a description as to the payment details. The fact remains that, a person receiving has a right to appropriate the amount towards the debt or dues of his choice. When admittedly there existed arrears and now judicial seal has been put to it, it was the absolute choice of the landlord to appropriate the dues or amount, towards the arrears and in this background also acceptance of rent it was not the rent being received towards current dues or towards immediate past duration of tenancy, and therefore, such payment was not in any circumstances liable to be treated.

18. With the discussion as to waiver the receiving of rent as well as issuance of the second notice amount to a waiver, I have no hesitation to hold that the finding recorded by the first appellate Court in paragraphs 14 and 15 are liable to be faulted being erroneous, perverse and contrary to the facts and circumstances on record. I have no hesitation to interfere in the said finding of fact being totally perverse and untenable. The manner in which the learned first appellate Court has arrived at the conclusion is clearly illegal exercise of power and gross failure in exercising jurisdiction in accordance with and within four corners of law and passed in erroneous manner of exercise of jurisdiction. Finding recorded by learned appellate Court is unsustainable and is therefore liable to be set aside. I therefore, pass the following order :

ORDER

19. Revision Petition is allowed.

Judgment and Decree passed by the First Appellate Court in Regular Civil Appeal No. 90/1996 [Additional District Judge, Achalpur] dated 22nd October, 1999 is modified in so far as it relates to reversing the decree of trial Court granting decree of possession and the judgment and decree of the trial Court passed in Regular Civil Suit No. 432/1992 passed by the Joint Civil Judge, Junior Division, Chandurbazar is restored. Revision petitioner is entitled for the costs throughout.