Food Corporation Of India vs Sh. Kuljinder Pal Singh Dhillon
2002 Latest Caselaw 690 Del

JUDGMENT

R.C. Jain, J.

1. These two Second Appeals arise out of judgment and decree dated 21.7.99 passed by the Additional District Judge, Delhi sitting as First Appellate Court. RSA No. 75/99 has been filed by the FCI-tenant and challenges the impugned judgment so far as it passed the decree of possession of the suit premises while Appeal No. 89/99 has been filed by the landlord against the order/direction in regard to the award of mesne profits/user charges of the premises in question.

2. Briefly the relevant facts leading to these appeals are that Flat No. 602, 6th Floor, Rohit House at 3, Tolstoy Marg, New Delhi was let out to the FCI for commercial purpose for a period of three years at a monthly rent of Rs. 3870/- vide a lease deed dated 4.10.78 and the tenancy was renewed for a further period of two years i.e. w.e.f. 4.10.1981 without any increase in the rate. The landlord terminated the FCI's tenancy by means of a registered notice dated 11.3.1989 and called upon them to deliver the vacant possession of the flat. It was also claimed that the FCI had illegally withheld the payment of Rs. 21,500/-. The FCI having failed to hand over the vacant possession of the flat in question and to pay the due rent, the landlord-plaintiff filed a suit for possession and recovery of Rs. 48,000/- by giving up a portion of the claim but claiming interest @ 18% p.a. from the date of filing of the suit till its realisation. The suit was contested by the FCI, inter alia, on the grounds that the suit has not been filed, signed and verified by an authorised person on behalf of the plaintiff; plaint did not disclose any cause of action; plaintiff was not entitled to enhancement of rent @ Rs. 327/- per month. With regard to withholding of Rs. 21,500/-, it was explained that a sum of Rs. 21,500/- was paid to the Rohit House Maintenance Society and Rs. 862/- to the New Delhi Municipal Corporation and the balance have been paid to the plaintiff vide a cheque dated 1.9.88. It was stated that by accepting the cheque for rent without objection, the plaintiff was estopped from raising any plea of the deduction of the said amount. The receipt of the notice dated 11.3.89 was not denied, but it was alleged that the notice is illegal, invalid and unenforceable.

3. On the pleadings of the parties, the learned trial court framed the following issues:-

1. Whether the present suit has been filed signed and verified by the competent person? OPD.

2. Whether the present suit does not disclose any cause of action for the recovery of possession? OPD.

3. Whether the suit is within limitation period? OPD.

4. Whether the tenancy of defendant has not been terminated in accordance with law? OPD.

5. Whether the plaintiff is entitled for recovery of possession and damages and interest, if so, at what rate and for what period?

6. Whether by accepting the cheques plaintiff is estopped from raising any plea of deduction of the said amount of Rs. 21,5000.68 as alleged by the defendant in preliminary objection No. 6? OPD.

7. Whether plaintiff is estopped from raising the plea of eviction as they have been accepting the rent regularly? OPD.

8. Relief?

4. On the basis of the evidence and material led at the trial, the trial court answered issues No. 1 to 4 in negative and against the defendant and answering the other issues in favor of the plaintiff, the trial court decreed the suit of the plaintiff for recovery of possession of the flat in question and also for recovery of a sum of Rs. 26,500/- with interest a 18% p.a. from the date of filing of the suit till its realisation. Aggrieved by the judgment and decree, the FCI filed an appeal and the first appellate court upheld the finding of the learned trial court on all the issues except issue No. 5 and modified the order of the learned trial court as under:-

1. The plaintiff was entitled to get possession of the suit property, i.e. flat No. 662, Rohit House, 6th Floor, 3, Tolstoy Marg, New Delhi.

2. The plaintiff was entitled for mesne profits/user charges for the period from 1st January, 1944 till the recovery of possession at the admitted rate of rent, i.e. @ Rs. 3,870/- per month Along with interest for unpaid period @ 18%.

10. The question may arise that when there is no prayer for mesne profits why should the court grant mesne profits. I consider that there should always be an endeavor to see that there was no multiplicity of litigation. Moreover, Under Rule 39, Rule 10 the court can give directions to the defendant for payment of user charges at the admitted rate to the plaintiff for the period when the suit remains pending. In this case, after December, 1993 the defendant/appellant continued to use the premises but did not pay the usercharges to which the plaintiff was entitled. The plaintiff is, therefore, entitled to recover these usercharges and there is no dispute about the quantum of user charges. The appeal is hereby partly allowed in the above terms. Amended decree sheet be prepared. Trial court record be sent back.

5. I have heard Shri Ajit Poddusary, learned counsel representing the FCI and Shri M.S. Sethi, counsel representing the Landlord and have given my thoughtful consideration to their respective submissions. This appeal was admitted to consider the following question of law:-

"Whether the notice given by the respondent landlord terminating the tenancy was waived and a fresh tenancy was created by acceptance of rent from the tenant?"

6. Learned counsel for the appellant-FCI has submitted that in the present case after issuance of notice dated 11.3.89 terminating the tenancy of the defendant, the plaintiff-landlord had been accepting rent up to December, 1993 which act of the plaintiff clearly amounts to waiver of the notice terminating the tenancy within the meaning of Section 113 of the Transfer of Property Act and a fresh tenancy will be deemed to have come into existence. In support of his contention he has placed reliance upon a Single Bench decision of this Court in the case of Smt. Kanta Manocha v. M/s. Hindustan Paper Corporation . On the facts of that case, it was held by this Court that acceptance of rent without any reservation on the part of the plaintiff-landlord after termination of the lease amounted to renewal of lease from month to month and acceptance of rent amounted to waiver of notice.

7. It was next submitted by learned counsel for the appellant that reliance of the courts below on two Supreme Court's decisions one in the case of Bhwanjit Lakhamshi and Ors. v. Himatlal Jamnadas Dani and Ors. and in the case of Firm Sardari Lal Vishwa Nath and Ors. v. Pritam Singh was misplaced as those authorities could not be applied to the facts and circumstances of the case in hand. Reliance has then been placed on a recent decision of the Supreme Court in the case of Bhuneshwar Prasad and Anr. v. United Commercial Band and Ors. . In this case the Supreme Court observed that the whole basis of Section 116 is that a landlord is entitled to file a suit for ejectment and obtain a decree for possession and, therefore, his acceptance of rent after expiry of lease is an unequivocal act referable to his desire to assent to the tenant continuing possession. At the same time it was also held that such an assent would be absent in cases whether there are restrictions as contemplated by rent laws and in such cases it is for the tenant where it is said that the landlord accepted the rent not as a statutory tenant but only as a legal tenant indicating his assent to the tenant's continuing possession, to establish it. In this very authority, the Court held as under:-

"We agree that to bring a new tenancy into existence within the meaning of Section 116, there should be an offer lessee's continuing occupation of the property after the expiry of the lease and on the other side, there must be a definite assent to this continuance of possession by the Lesser/landlord and that such an assent of the landlord cannot be assumed in cases of tenancies to which the Rent Restrictions Acts apply on account of the immunity from eviction which a tenant enjoys even after the expiry of lease. In such cases, the landlord cannot eject him except on specified grounds mentioned in the Rent Restriction Acts and thus the acceptance of rent by the landlord from a statutory tenant, whose lease has already expired, would not be open to such a tenant to urge that by acceptance of rent, a fresh tenancy was created. We do not expect a Lesser not to accept the rent when, in view of the protection granted by the rent restriction laws, without existence of one or the other ground, he is precluded from seeking eviction of the lessee and in such a case, there would be no question of creation of tenancy from month to month. Under these circumstances, mere acceptance of amount equivalent to rent or the standard rent would not attract Section 116. Assent to the lessee continuing in possession would be absent in such cases."

In the opinion of this Court, this authority does not advance the case of the appellant in any way because mere acceptance of rent by itself cannot be treated as creation of a fresh tenancy. 8. Learned counsel for the respondent on the other hand has urged that the plea of waiver of a notice terminating the tenancy is a fact which must be specifically pleaded in the written statement and no such plea was raised in the case in hand and therefore no issue on this aspect was required to be framed and answered. In this connection, he has placed reliance on a Supreme Court decision in the case of Pulin Bihar Lal v. Mahadeb Dutte and Ors. 1993(1) RCR 357. In this case it was held that the waiver is a question of fact -- In case of waiver of any provisions of statute it is necessary to prove that there was conscious relinquishment of the advantage of such provisions of the statutes. Earlier in the case of Sarabjit Singh v. Mohan Singh 1977 RLR 79, this Court held that waiver of a notice or abandonment of right is a question of fact to be determined by circumstances indicating intention to abandon previsouly acquired rights to be gathered from documents read as a whole and from conduct of parties. Reliance is then placed on a Division Bench decision of this Court in the case of Bank of Rajasthan Ltd. v. Sarin & Co. . In that case, the Court considered the effect of mere acceptance of rent by a landlord after issuance of a notice of termination and on a consideration of certain earlier authorities held as under:-

"Plain reading of Section 113 of the Transfer of Property Act shows that it consists of two essential components : (a) the express or implied consent of the person to whom the notice is given and (b) act of the person giving notice showing the intention to treat the lease subsisting. In order to constitute waiver, both the ingredients must concurrently exist, which means the act of acceptance of rent by itself without reference to the intention of the Lesser, cannot be deemed to be the waiver. Illustration (a) of Section 113 of the Act cannot be construed so as to water down the substantive provision of Section 113. Thus in addition to the receipt of the rent by the landlord there should be other conclusive evidence to show that the landlord intended to treat the lease as subsisting. Of course, the intention can be gathered from attending circumstances but these circumstances must be such which irresistibly lead to the conclusion, that the Lesser had intended to keep lease subsisting. The conduct of the parties must justify such an inference.

9. In the case in hand, it is not disputed that after issuance of notice of termination of tenancy dated 11.3.89 the plaintiff-landlord had been accepting rent from the defendant-tenant. Other undisputed fact is that the suit for recovery of possession and arrears of rent etc was filed within a few months of the issuance of notice in the year 1989 itself. On the face of this factual position and view taken by Division Bench of this Court, there is no escape from the conclusion that mere acceptance of rent/user charges by the plaintiff-landlord was itself not sufficient to attract the provisions of Section 113 of Transfer of Property Act as no other acts on the part of the plaintiff landlord has been brought on record showing his intention to treat the lease subsisting. On the contrary the factum of filing of the suit for possession within few months from issuance of notice clearly negate such an intention on the part of the landlord. I, therefore, see no substance in the contention of the appellant-FCI that notice terminating the tenancy dated 11.3.89 stood waived by the plaintiff-landlord by acceptance of the rent. The question is, therefore, answered accordingly.

10. Besides, in the case in hand, the landlord has already obtained the vacant possession of the flat in question from the appellant-FCI during the pendency of the appeal and therefore the appellant-FCI cannot make any valid claim to the premises. No other point was pressed in support of the Appeal. The RSA 75/99 is, therefore, liable to be dismissed.

11. As regards Appeal No. 89/99, the landlord has made a grievance of the order/direction of the First Appellate Court holding that the plaintiff was entitled for mesne profits/user charges from 1st January, 1994 till the recovery of possession at the admitted rate of rent @ Rs. 3870/- per month Along with interest for unpaid period @ 18%. According to the learned counsel for the appellant, this direction was uncalled for and has caused prejudice to the landlord by foreclosing his right to recover mesne profits/damages for use occupation at a higher rate, as the suit premises is located in a prima commercial locality of New Delhi. According to him while invoking provisions of Order 20 Rule 12 CPC, the Court ought to have ordered an inquiry to determine the quantum of the mesne profits/use and occupation charges during the pendency of the suit and appeal proceedings rather than quantifying the same at the rate of last paid rent. In this connection he has sought support from Supreme Court decision in the case of Gopalakrishana Pillai and Ors. v. Meenakshi Ayal and Ors (supra) where the Supreme Court has interpreted the scope of the provisions of Order 20 Rule 12 and held as under:-

"Order 20 Rule 12 of the Civil P.C. enables the court to pass a decree for both past and future mesne profits, but there are important distinctions in the procedure for enforcement of the two claims. With regard to past mesne profits the plaintiff has an existing cause of action on the date of institution of the suit. In view of Order 7 Rule 1, 2 and 7 of the Civil P.C. and Section 7(1) of the Court Fees Act, a plaintiff must plead his cause of action, specifically claim a decree for past mesne profits, value the claim approximately and pay court fees thereon. With regard to future mesne profits, the plaintiff has no cause of action on the date of institution of the suit and it is not possible for him to plead this cause of action or to value it, or to pay court fees thereon at the time of institution of the suit. Moreover, he can obtain relief in respect of this future cause of action only in a suit in which provisions of Order 20 Rule 12 apply. But in a suit to which the provisions of Order 20 Rule 12 apply, the court has discretionary power to pass a decree directing an enquiry into future mesne profits and the court may grant a general relief though it is not specifically asked for in the plaint.

12. In the case of Motibai Nathbhai v. Ramchandra Martandrav Vahivatdar , the Gujrat High Court has taken a view that direction as to future mesne profit is within the discretion of the Court, therefore irrespective of whether the plaintiff has prayed for them or not if the court thinks fit to future mesne profits, it can do so.

13. Yet another ground pressed for by the counsel for the landlord is that on the face of the aforesaid directions he was precluded from filing a suit for recovery of use and occupation charges at higher rate which if filed now, would be barred by limitation. As against this, the submission of learned counsel for the FCI-tenant is that in the absence of any prayer being made in the suit for grant of pendente lite and future mesne profits, the First Appellate Court was not justified in granting a decree for mesne profits/use and occupation charges and in any case the award of such charges @ Rs. 3870/- per month which was the admitted rate of rent, is quite justified and reasonable. There appears to be force in the above submission of learned counsel for the tenant-FCI. The award of mesne profits/use and occupation charges for the period during which the tenant had remained in possession of the suit premises and had enjoyed it at the rate of last paid rent, in exercise of its power under Order 20 Rule 12 cannot be said to be illegal unjust or unreasonable. However, this Court does not approve the direction of the First Appellate Court that such an order could be passed on the strength of the provisions of Order 39 Rule 10 CPC or with a view to avoid multiplicity of litigation. The consideration for issuing directions under the provisions of Rule 10 of Order 39 are different and meant to take care of interim situation during the pendency of the suit rather than for passing a decree for mesne profits/use and occupation charges on the conclusion of trial in a suit for possession and recovery of arrears of rent. This Court is, therefore, of the opinion that the appeal of the landlord has also no merits.

14. In the result, both the appeals - RSA 75/99 and RSA 89/99 hereby dismissed and the judgment and decree passed by the First Appellate Court are hereby upheld. Although the finding/order of the first appellate court so far as it relates to grant of mesne profits/use and occupation charges with interest in favor of the landlord and against the tenant is also upheld, but on different ground.

15. Parties are left to bear their own costs.