J.S.Panesar vs Santokh Singh & Ors.
2010 Latest Caselaw 1678 Del

                * IN THE HIGH COURT OF DELHI AT NEW DELHI

                                               Date of Reserve: 2nd February, 2010
                                                    Date of Order: 25th March, 2010
CM(M) No. 2151/2006
%                                                                      25.03.2010

        J.S.Panesar                                       ... Petitioner
                                 Through: Mr. Manbir Singh, Advocate

                Versus


        Santokh Singh & Ors.                       ... Respondents
                         Through: Mr. S.S.Dahiya, Advocate &
                         Mr. R.M.Sharma & Mr. Ranjit Dubey, Advocates

JUSTICE SHIV NARAYAN DHINGRA

1. Whether reporters of local papers may be allowed to see the judgment?    Yes.

2. To be referred to the reporter or not?                                   Yes.

3. Whether judgment should be reported in Digest?                           Yes.

JUDGMENT

By the present petition under Article 227 of the Constitution of

India, the petitioner has assailed concurrent judgment of two Courts below

dismissing suit filed by the petitioner for possession of the premises in

question. As this Court is not a Court of second appeal and the jurisdiction of

this Court under Article 227 is limited, the only issue pressed before this Court

is that the two Courts below wrongly came to conclusion that the notice

served by the petitioner on the respondent/tenant stood waived while there

was no plea of waiver taken by the respondent.

2. Brief facts relevant for deciding this petition are that the

petitioner/landlord served notice dated 26.10.1998 on Smt. Bhupinder Kaur

terminating her tenancy w.e.f. 30.11.1998 of the tenanted premises. At the

time when notice was served the rent of the premises was Rs.25/- p.m., since

the tenancy was protected under Delhi Rent Control Act, he could not have

filed a suit for eviction on the ground of termination of tenancy, therefore, no

such suit was filed and the rent was continued to be accepted. However, the

petitioner thereafter requested Smt. Bhupinder Kaur to increase rent and it is

admitted by the petitioner in his evidence that his request was agreed to and

the rent was increased from Rs.25/- p.m. to Rs.45 p.m. w.e.f. 1st December,

2001. It is not disputed that petitioner had been issuing rent receipts initially

of Rs.25/- p.m. and thereafter of Rs.45/- p.m. In his testimony the petitioner

also stated that this rent was increased after admitting Smt. Bhupinder Kaur

as his tenant and she continued to pay rent to the petitioner regularly

thereafter. The trial Court on the basis of this testimony of the petitioner came

to the conclusion that the notice dated 26th October, 1998 served on Smt.

Bhupinder Kaur stood waived and a new relationship came into existence and

Smt. Bhupinder Kaur continued to be a contractual tenant @ Rs.45/- p.m. till

her death. The learned ADJ in appeal upheld this contention.

3. It is contended by the petitioner that mere acceptance of rent on

the part of petitioner after service of notice would not amount to waiver since

the petitioner could not have filed an eviction petition as tenancy of Smt.

Bhupinder Kaur was protected under Delhi Rent Control Act. The petitioner

could not have allowed the premises to be occupied without rent therefore, he

had to continue accepting rent and acceptance of rent would not amount to

waiver unless and until it was intended by the petitioner to waive the notice.

He relied upon 2006(1) RCJ 89 (SC) Sarup Singh Gupta v. S. Jagdish Singh

& Ors. wherein Supreme Court had held that mere acceptance of rent cannot

amount to waiver of notice unless there was other evidence to prove that the

landlord so intended. On the other hand counsel for the respondent

submitted that it was a clear cut case of waiving of notice by conduct of the

petitioner since the petitioner not only continued accepting rent @ Rs.25/-

p.m. but later on increased the rent, admittedly treating Smt. Bhupinder Kaur

as a tenant. If Smt. Bhupinder Kaur had not been a tenant and was living in

the premises only under statutory protection of Rent Control Act then the

landlord could not have increased the rent from Rs.25/- to Rs.45/- and the

increase which he could have asked was as permitted by the provisions of

Rent Control Act. The increase in the rent from Rs.25/- to Rs.45 p.m., almost

double, showed that the landlord treated Smt. Bhupinder Kaur as tenant at

new rate of rent and he gave up/waived his previous notice.

4. Waiver of notice by conduct is a well known concept in law. The

acceptance of rent after expiry of notice by itself may not necessarily

constitute a waiver but if the conduct of the parties goes to show that the

parties intended to waive the notice and create a new tenancy, the waiver can

be inferred from such conduct. In the present case when the notice was

served the rent was Rs.25/- p.m. This rent continued from November, 1998 till

October, 2001 when at the request of the landlord Smt. Bhupinder Kaur

increased rent from Rs.25/- to Rs.45/-. That shows that the parties had given

a go-bye to notice of termination of the tenancy and the landlord considered

that let Smt. Bhupinder Kaur continue as a tenant & created a new

relationship of tenancy with her by agreeing to higher rent. If the landlord had

continued accepting rent of the premises under protest and had only insisted

upon statutory increase by serving a notice, reminding the tenant that she was

living in the premises because of statutory protection, the case would have

been different but here is a case where after service of notice the landlord

requested the tenant to increase the rent from Rs.25/- to Rs.45/-. The tenant

agreed to the same and thus a new tenancy got created in respect of the

same premises at monthly rent of Rs.45/-. I consider that this conduct

sufficiently reflects waiver on the part of the landlord. Under Section 113 of

Transfer of Property Act, a notice stands waived on an act on the part of

person giving it, showing an intention to treat the lease as subsisting, provided

there is express or implied consent of the person to whom it is given. In the

present case, once the landlord intended to continue the tenancy with Smt.

Bhupinder Kaur at increased rent and Smt. Bhupinder Kaur agreed to it, the

notice stood waived.

I, therefore consider that there are no merits in this petition. The

petition is hereby dismissed.

March 25, 2010                            SHIV NARAYAN DHINGRA, J.
vn