Vijayshree Commercial (P) Ltd. vs Tika Jagjit Singh Bedi
1996 Latest Caselaw 512 Del

JUDGMENT

R.C. Lahoti, J.

(1) In a suit based on landlord-tenant relationship, the appellant has been ordered to be evicted from the suit premises. The defendant has come up in appeal.

(2) It is not disputed that the plaintiffs- respondents are owner-landlords of the premises known as N-97, Panchsheel Park, New Delhi. The defendant- appellant has been a tenant in the premises on a monthly rent of Rs. 14,000.00 . The tenancy runs from month to month, parallel to English calendar month. By notice dated 10.7.1993 the plaintiffs terminated the tenancy of the defendant w.e.f. 31.8.1993 calling upon it to vacate the premises. The notice was replied to. On 3.12.1993, the defendant sent an amount of Rs. 14,000.00 to the plaintiff No.2. This amount was in the form of a bank draft dated 3.12.1993 and accompanied by letter dated 3.12.1993 sent through registered post. The suit for ejectment was filed on 3.1.1994. It was contested by the defendant -appellant mainly on two grounds : firstly, that the notice terminating the tenancy was invalid; and secondly, that the notice stood waived by the plaintiffs having accepted rent for the month of September, 1993 i.e. for the period falling subsequent to the date of termination of tenancy. On both the counts the trial court has held in favour of the plaintiffs and directed a decree for ejectment to be passed.

(3) Before this Court both the pleas have been raised and canvassed by Mr Mukul Rohtagi, the learned senior counsel for the defendant/appellant. However, during the course of hearing, the plea as to invalidity of the notice was not seriously pressed, and rightly so, as no fault can be found with the notice terminating the tenancy tested on the touchstone of Section 106 of the Transfer of Property Act. The only plea seriously pressed and which survives for adjudication is of waiver of the notice of ejectment.

(4) It is not disputed that the tenancy is not governed by the provisions of Delhi Rent Control Act, 1957. The plea of waiver has to be examined in the light of the provisions contained in the Transfer of Property Act, to be more specific S.113 thereof.

(5) The notice dated 10.7.43 terminating the tenancy w.e.f. 31.8.93 was served admittedly much before the expiry of 15 days prior to the date of termination of tenancy. Rent for the month of September, 1993 was not tendered by the defendant -tenant along with the reply dated 22.8.1993. After the lapse of more than three months of the date of reply, the letter dated 3.12.1993 was sent to one of the plaintiffs accompanied by a bank draft in an amount of Rs. 14,000.00 . The contents of the letter would be of importance and are therefore reproduced hereunder :

"REGDWITH A/D VSC/ACCTS/93/103-12-1993 To Justice Tikka Jagjit Singh Bedi( Reld). Sector Ioa House No. 291 Chandigarh. Dear Sir, Sub: Rent of premises No. N-97 Panchshila Park, New Delhi-17 We are sending herewith a demand draft No. 689937 dated 3.12.1993 drawn on State Bank of Patiala for Rs. 14000.00 ( Rupees fourteen thousand only) is- sued in favour of Tikka Jagjit Singh Bedi and Harjeet Singh Bedi, payable at Chandigarh in respect of above for the month of Sept 1993. Please acknowledge & send official receipt for the same. Thanking you, Yours faithfully) for Vijayshree Commercial Pvt Ltd End: As above. "

On 5.8.94 one of the plaintiffs gave a reply which reads as under :

"KOTH'No. 3406, Sector 24 Chandigarh Judge High Court Of Punjab & Haryana Chandigarh 5TH August, 1994 M/S Vijay Shree Commercial Pvt Ltd 4, India Exchange Place Calcutta Dear Sir, I acknowledge the receipt of Draft No. 689937 for Rs. 14,000.00 sent by you. This amount is accepted as damages/mesne profits for use and occupation of house No. N-97, Panchsheel Park New Delhi without prejudice to the termination notice dated 10.7.1993 and without prejudice to suit No. 7 of 1994 pending in the court of Shri P.K. Basin, Addl District Judge Delhi. Yours sincerely, (HARJIT Singh Bedi )"

(6) The reply dated 5.8.94 was given during the pendency of the suit; the suit having been instituted on 3.1.1994.

(7) The learned counsel for the defendant- appellant has submitted that the amount of Rs. 14,000.00 was tendered as rent through a bank draft. The bank draft was accepted by the plaintiffs without any demur and encashed prior to the filing of the suit. This act on the part of the plaintiffs clearly allows them having accepted the rent for the .period of one month subsequent to the date of termination of tenancy and thereby having waived the notice. Reliance is placed on Section 113 of the transfer of Property Act and illustration (a) appended thereto which read as under:- "113.Waiver of notice to quit.-A notice given under Section Iii, 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."

(8) A bare reading of Section 113 above said shows that in order to constitute waiver of notice, there must be consent-expressed or implied of the person to whom the notice is given and there must be an act on the part of the person giving the notice which shows an intention to treat the lease as subsisting.

(9) What is waiver ? In Basaheshar Nath vs Cit Delhi and Rajasthan , their Lordships of the Supreme Court have held : "It has been said that 'waiver' is a troublesome term in the law. The generally accepted connotation is that to constitute 'waiver', there must be an intentional relinquishment of a known right or the voluntary relinquishment or abandonment of a known existing legal right, or conduct such as warrants an inference of the relinquishment of a known right or privilege."

(10) The question of waiver by reference to Section 113 of the Transfer of Property Act has also been subject matter of judicial scrutiny in a few decided cases.

10.1.INSmt S. Sharma vs Gulab Devi, , the learned Judge has vide para 4 noticed the consistent view of the High Court of Allahabad and summed up the law in the following words : "In order to constitute a waiver of notice to quit under section 113 the tenant has to prove that the landlord by accepting the rent for the period subsequent to the termination of tenancy had an intention to treat the lease as subsisting. In the absence of any such intention on the part of the landlord being proved, mere acceptance of an amount tendered by the tenant during the pendency of the suit for ejectment against him cannot amount to waiver."

10.2In C.Sundaram vs V.T.Abdul Ghani, , it has been held: "In order to constitute a waiver under Section 113 not only the acts of parties must coalesce but there should also be some act on the part of a person giving the notice showing an intention to treat the lease subsisting and such act must be with the express or implied consent of the person to whom the notice is given. The acceptance of rent by the lessor merely as a prudential act without the necessary animus to nullify the notice of termination given earlier will not constitute an act on his part with the express or implied consent of the lessee to treat the lease as subsisting. Further there must also be evidence to show that the lessee construed the act of receipt of rent by the lessor as an intention to treat the lease as subsisting and then made further payment of rent to manifest his express or implied consent to continuance of the lease."

10.3An English case available on the point may be referred to. In Maconochie BROS.LTD.v. Brand And Others, [1946] 2 All.E.R 778, it has been held (placing reliance on an earlier decision) :- "In Davies v. Brislow (1) ([1920] 3 Kb 428 at pp 437, 438)LUSH, J., points out clearly that "waiver of a notice to quit" is a convenient, but inaccurate, expression when what has happened is that the notice has expired and rent has been accepted thereafter. When the term has expired by the effluxion of time or by a competent notice, it is wrong to talk about a waiver. If the relations of landlord and tenant continue thereafter, it is by agreement between the partics. On the facts of this case I am clear that the cheque was received and paid into the bank under a misapprehension, and in the light of the evidence I am satisfied that the defendants paid it in the hope that it would be accepted and that the acceptance would enure to their benefit in some sort of waiver of the notice to quit or some new implied tenancy. I, have no ground for thinking that a new tenancy was created."

(11) Following two decisions in which acceptance of rent subsequent to the date of termination of tenancy was held to constitute waiver may now be noticed and dealt with.

11.1Ram Dayal vs Jawala Prasad, Air 1966 Allahabad 623 is a case in which notice of termination was held to have been waived by payment and acceptance of rent for a period subsequent to the date of termination. From para 4 of the report, it is clear that it was not disputed that during the pendency of the suit the plaintiff had received rent regularly from the defendant for the period subsequent to the notice to quit.

11.2In Kapur Chand vs Kanji, 1959 Ap 346, also the facts show the landlord having accepted rent for 7 months successively for the period after the notice to quit and the Db treated it as the circumstance going to show that the landlord intended to treat the terminated tenancy as continuation.

11.3It is clear from both the above said judgment that it was a continuous or regular course of conduct on the part of the landlord manifesting the intention of the landlord to treat the tenancy as subsisting which was treated as evidence of waiver.

(12) Under Section 113 whether an act of the landlord receiving any amount sent as rent or receiving an amount sent without any statement at all, is one from which he can be imputed an intention of creating a renewal of the tenancy or treating the tenancy as still subsisting, is a question of fact.

(13) In the light of the decided cases noticed hereinabove we may now proceed to examine the facts of the case at hand.

13.1The letter dated 3.12.1993 reproduced hereinabove (vide para 5) is an intelligent piece of drafting. In the subject it is mcntioned,-'rent of premises'. However, in the body of the letter it is nowhere stated that the amount of Rs 14,000.00 tendered by demand draft was on account of rent of the premises. There is request to acknowledge and send an official receipt of the amount. The plaintiffs neither acknowledged the receipt of the amount as rent nor did send an official receipt manifesting their intention of having accepted the amount as rent. The First ever communication in response to the letter dated 3.12.1993 is made on 5.8.1994, which, though made during the pendency of the suit, clearly states the plaintiffs having accepted the amount as damage/mesne profit for use and occupation of the premises. It is pertinent to note that the amount was not tendered by defendant No.2 along with reply to the notice. It is a casual payment made on 3.12.1993 ? We fail to understand why the defendant did not tender the rent for the month of October and November also while remitting the demand draft on 3.12.1993. Why no statement was made in the body of the letter that the amount was on account of rent ? It is clear that the intention of the defendant was to create a trap for the plaintiffs wherein they or any of them' may fall mistakenly or unwittingly and if that be so then the defendant may knit out a plea of waiver.

13.2One witness each has appeared for the two parties. While the witness for the plaintiffs has clearly stated that the amount was received as damages, there is no evidence adduced by the defendant directed towards proof or enabling an inference being drawn of the plaintiffs' intention to renew the tenancy or waive the notice.

13.3But for a casual payment of an amount equivalent to one month's rent, there are no further and regular payments or payments made and accepted showing a course of conduct enabling inference of an intention on the part of the landlords to treat the tenancy as subsisting.

13.4If the singular payment of Rs. 14.000.00 made by the tenant and accepted by the landlord was treated by the tenant as manifestation of an intention on the part of the landlords to treat the lease as subsisting, then there is no act or communication thereafter on the part of the tenant tantamounting to his consent- express or implied- to continuance of tenancy.

13.5In our opinion, merely by accepting an amount of Rs, 14,000.00 for a period subsequent to the date of termination of tenancy when in the body of the letter tendering the amount it was not specifically stated to be on account of rent and not accompanied by any subsequent payment or acceptance till the date of filing of the suit, an inference of the notice of termination having been waived by the plaintiffs cannot be drawn.

(14) We may examine the issue from yet another angle. The entire case of the defendant-appellant is based on a single tender consisting of one month's rent subsequent to the date of termination of tenancy having been made by the tenant and having been accepted by the landlord. Therefrom a waiver of notice is sought to be spelled out. Support is being derived from illustration 'A' to Section 113 of the Transfer of Property Act quoted in para 7 above.

14.1Illustration (a) appears to give an impression that mere acceptance of rent due in respect of the property since the expiration of the notice waives the notice. This impression is created only if the illustration is read divested from the context of Section 113. Section 113 speaks of notice being waived by an act on the part of the person giving the notice "showing an intention to treat the lease as subsisting". The emphasis is on requisite intention of the person giving the notice. Such intention as constituting an essential ingredient on waiver cannot be bidden a goodbye by reading the illustration.

14.2An illustration docs not exhaust the full contents of the section which it illustrates but it can neither curtail nor expand its ambit. ( Shambhu Nath v. State of Ajmer, ; Anirudha v. Administrator-General of Bengal . An illustration to a section in a statute cannot have the effect of modifying the language of the section which alone forms the enactment. (Bengal Nagpur Railway Co. Ltd. vs Rultanji Ramji Air 1939 Pc 67)

14.3Use of the word 'rent' by the tenant- appellant in his letter dated 3.12.1993 is not by itself decisive of his having tendered the amount as evidence of demise between the landlord and tenant remaining alive. Nor can it be inferred that the landlord having accepted the rent tendered along with the letter was necessarily accepting tendered amount so as to revive or create a demise by the landlord to the tenant.

14.4We may with advantage refer to a decision of the Supreme Court in Konchada Ramamurty Subudhi vs Gopinath Naik and ors. . A suit for ejectment of tenant filed after termination of tenancy was dismissed. In appeal the appellate court passed a decree based on compromise wherein the decree of ejectment could be executed if the judgment debtor failed to pay rent for three consecutive months. The question arose whether use of the term "rent" in the deed of compromise created a lease between the partics. Their Lordships have held that it was not so. Rent in its wider sense means any payment made for the use of land and building and would thus include a payment by a licensee in respect of use and occupation of any land or building. In its narrower sense "rent" meant payment made by the tenant to the landlord for property demised to him.

14.5The tenancy having been terminated so long as the tenant has not surrendered possession to the landlord it would be bound to make payment for the use of premises in its possession. The word "rent" may well have been descriptive of the amount tendered by the tenant in lieu of using the premises. The amount may well have been accepted by the landlord in that sense. Be that as. it may, merely for use of the word rent in the heading of the letter dated 3.12.1993 we do not think that any intention of creating or revival of tenancy either on the part of the tenant or on the part of the landlord can be spelled out.

(15) For the foregoing reasons, the only pica raised and seriously canvassed, on behalf of the appellant is found to be without any merit.

(16) A few cases were cited at the bar which deal with the question of waiver where tenancies are governed by the provisions of Rent Control Legislation. Such is not the case here. We are, therefore avoiding burdening this judgment with dealing with those rulings.

(17) It may be placed on record that the appellant had sought for the stay of execution of 'decree under appeal. On the date on which the application came up for hearing the .counsel for the respondents made appearance opposing the stay being granting submitting that the decree was already put to execution and also executed. In view of the disputed position this Court had directed status quo in the matter of possession over the property to be maintained, also directing appointment of a local commissioner to find out the state as to possession. The report of the local commissioner suggests the respondent having already secured possession over part of the tenancy premises.

(18) As we find no merit in the appeal, the same is dismissed. The defendant-appellant is allowed time till. 31.7.96 to deliver vacant and peaceful possession to the landlords over such part of the tenancy premises on which possession still continues with it. No order as to costs