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PETITIONER: TAYABALI JAFERBHAI TANKIWALA

       Vs.

RESPONDENT: M/S. ASHA & CO. AND ANR.

DATE OF JUDGMENT: 24/09/1969

BENCH: GROVER, A.N. BENCH: GROVER, A.N. SHELAT, J.M. RAMASWAMI, V.

CITATION:  1971 AIR  102            1970 SCR  (3) 554  1970 SCC  (1)  46

ACT: Landlord  and Tenant--Notice  terminating  tenancy--Landlord accepting  rent--Second notice of termination  treating  the tenancy  as  subsisting--Suit  for  ejectment  treating  the second notice as non est--Transfer of Property Act, 1882, s. 113 illustration (b).

HEADNOTE:     A landlord gave notice to his tenant, under s. 12 of the Bombay  Rents,  Hotel and Lodging House Rates  Control  Act, 1947, demanding arrears of rent due and also terminating the tenancy  on  the  ground  that the  tenant  was  a  habitual defaulter.   The arrears of rent claimed in the notice  were paid after the expiry of one month mentioned in the  notice. The landlord gave a second notice calling upon the tenant to deliver  vacant possession of the premises which was  stated to  be in his occupation as monthly tenant.  In this  notice another  ground, viz., that the premises were  required  far personal  use  and occupation, was mentioned.,  The  tenant, thereafter, tendered the amount of arrears then due, but the same was rejected. The landlord brought a suit for ejectment on  the ground of default in payment of arrears of rent  and for  personal use and occupation.  He amended the plaint  by adding  that  the  first  notice was  given  to  the  tenant demanding  arrears of rent.  The Trial Judge  dismissed  the suit  holding  that  by serving a  second  notice  .,and  by various  acts  and  conduct  the  landlord  showed  a  clear intention  to  waive and condone the ground  of  default  in payment  of arrears contained in the first notice  and  that the  premises were not reasonably and bona fide required  by the landlord  for  his  own  use.   The Appellate Court held the first notice invalid on different grounds and a petition under  Art.  227’before  the High  Court  was  dismissed  in limine. In appeal to this Court it was contended that  since the arrears claimed in the first notice were paid after  the expiry  of the period of one month after notice referred  to in  sub-s. 2 of s. 12, the court was bound to pass a  decree for eviction.  Dismissing the appeal,     HELD:  Under  s. 113 of the Transfer of Property  Act  a notice given under s. 111 cI. (h) is waived with the express

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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.  The section does not  in terms  appear to indicate that far bringing about  a  waiver under  the  section a new tenancy by an express  or  implied agreement must come into existence.  All that has to be seen is  whether  any  act has been proved on ’the  part  of  the appellant  which  shows an intention to treat the  lease  as subsisting  provided there is an express or implied  consent of the person to whom the notice is given. [557 E-F; 558  A- C]     In the present case the serving of the second notice and what was stated therein together with the claim as laid  and amplified in the plaint showed that the landlord waived  the first notice by showing an intention to treat the tenancy as subsisting  and  that this was with the express  or  implied consent  of the tenant.  It was not open therefore., to  the landlord  to say that he did not want to rely on the  second notice: and should be allowed to base his claim for eviction only  on  the  first notice containing  the  ground  of  the default in payment of arrears ’of rent. [558 C--E. F-G]          5 5 5

JUDGMENT: CIVIL APPELLATE JURISDICTION :Civil Appeal No. 1741 of 1966.     Appeal  by special leave from the order dated March  18, 1966  of the Bombay High Court in Special Civil  Application No. 475 of 1966. M.C. Chagla and S.S. Shukla, for the appellant. S.T. Desai and D.N. Mishra, for respondent No. 1. The  Judgment of the Court was delivered by     Grover  J.  This is an appeal by special  leave  from  a judgment  of  the  Bombay  High  Court  and  arises  in  the following circumstances:     The  suit  premises  consisting; of a   shed   at   130, Shuklaji  Street, Bombay are the property of the  appellant, and were let out to the respondent as a monthly tenant.   By means  of  a  notice  dated June 13,  1956  the  tenant  was informed   by the  landlord that he was in arrears  of  rent since  July 1, 1953 and was liable to pay to the landlord  a sum of Rs. 1,826/- being the amount of rent calculated up to the date of the notice., As he was an habitual defaulter and had  been making illegal ,use of a passage attached  to  the premises without the consent of the landlord his tenancy was being,  terminated.   He  was further called  upon  to  make PaYment of the amount of arrears.  The tenant did not vacate the premises and a second notice was sent dated October  18, 1957  calling upon him to deliver vacant possession  of  the premises  which  were stated to be in his  occupation  as  a monthly  tenant.  In the second notice  another  ground  was mentioned for getting the premises vacated.  It was that the same were required  for  the personal use and occupation  of the  landlord.   It  may  be mentioned  that  prior  to  the dispatch  of ’the second notice the landlord had  been  paid and he had received the amount of arrears which were said to be due in the first notice. In other words the rent had been ’received  upto March 1955.  On October 30, 1957 the  tenant made  a  tender by means of a cheque of the full  amount  of arrears  then  due  but  the  cheque  was  returned  by  the landlord.     On  March  31,  1958  the  landlord  filed  a  suit  for ejectment  and  or  recovery  of rent  from  April  1955  to NoVember  1957 and compensation for use and occupation  from

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December 1957 to February 1958 as also for a certain  amount for  Vacant  possession being back rent  of  twelve  months’ rent,  the total amount of all the items being  Rs.  2448.12 Np.  In  July 1960 the plaintiff sought and was  allowed  to amend the plaint by introducing the following paragraph: L3SupCI/70--5 5 5 6                   "Notice dated 13th June 1956 under section               12  of the Bombay Rent Control. Act was  given               by the plaintiff’s advocates to the defendants               demanding payment of arrears of rent from  1st               July  1953  upto  date  1956, which  has  been               ’duly acknowledged. Copy of the said notice is               hereto annexed and marked Ex. ’A’." The  ejectment  was  claimed on the  ground  of  default  in payment  of  arrears  of  rent  and  for  personal  use  and occupation. The learned trial judge held that by ’serving  a second  notice and by various acts and conduct the  landlord showed a clear intention to waive and condone’ the ground of default  in  payment   of arrears  contained  in  the  first notice.   As regards the ground of persona  requirement  the trial  court  was  not satisfied  that   the   premise  were reasonably  and bona fide required by the plaintiff for  his own  use.   The suit for eviction was dismissed  although  a decree for Rs. 1822.97 was granted.  The matter was taken in appeal of the Court of Small Causes.  The appeal court  held that  there  was no waiver on the part of  the  landlord  as regards  the default committed by the tenant in  not  paying the  arrears of rent within one month after the  receipt  of the first notice.  In other words.  the service of a  second notice  and  other facts which had been found by  the  trial court did not amount to a waiver of the first notice. But it was of the view that the demand of the arrears of rent  made in the notice dated June 13, 1956 was excessive and  illegal which  made  the  notice invalid.   The  other  point  about personal  neces city appears to have been abandoned  by  the plaintiff  before  the appeal court.  The landlord  filed  a petition  under  Art. 227 of the Constitution  in  the  High Court which was  dismissed in liming.     It  has  been  contended  before us  on  behalf  of  the landlord  the view of the appeal court on the effect  of  an excessive  deman  having  been  made  in  the  notice    was altogether   erroneous.   Ln Civil Appeal No.  387  of  1964 (RaghunathRavji  Dandekar Anant Narayan Apte)(1) this  Court laid down that a notice quit under the Transfer of  Property Act  would not be bad because by mistake or  oversight  more was  demanded  in the notice under s. 12(2)  of  the  Bombay Rents, Hotel and Lodging House  Rate Control Act, 1947  (Act LVII of 1947), hereinafter called the Act than was due.   It is  urged that since the aforesaid infirmity in  the  notice dated  June 13, 1956 alone had prevailed with  appeal  court the High Court ought to have entertained the petition  under Art.  227  and  after setting aside the  judgment’  of   the appeal  court  the-suit  for ejectment  should   have   been decreed Reliance has been placed on s. 12(3)(a) of the  Act’ according (1) Decided on April 5, 1966. 557 which  where the rent is payable by the months and there  is no  dispute  ’regarding  the amount  of  ;standard  rent  or permitted  increases  if  such ’rent or  increases  ’are  in arrears  for a  period of six months or more and the  tenant neglects  to make payment thereof  until the  expiration  of the  period of one month after notice referred to  in  sub-s (2), the court shall pass ’a decree for eviction in any such

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suit  for  recovery of possession.  It’ is argued  that  the notice dated June 13, 1956’ was the only notice which  after the  amendment introduced in the plaint by’ paragraph 3A was to  be treated as a valid ’notice and since there  had  been non-compliance  with   the demand’ made in that  notice  the court  was bound to pass a decree’ for eviction.   As  there was  failure to  exercise  jurisdiction  the High Court  had the’  power  and the authority to interfere  in  a  petition Under’ Art. 227 of the Constitution.     It  seems  to  us  that on the  facts  which  have  been established   the  landlord  was  bound  to  fail.   It   is abundantly   clear that  he had, in the second notice  dated October 18, 1957, treated  the tenancy as subsisting and not only  the respondent was described as a monthly  tenant  but also  in  the  plaint, even after  the  amendment  had  been allowed, rent was claimed upto November 1957; thereafter the amount  due  was  described  as  compensation  for  use  and Occupation.   The  plaintiff  was thus fully  alive  to  the distinction between rent and damages for use and  occupation and  it  cannot  be said that he had  abandoned  the  second notice  and  asked for the same to be treated as non-est  or that  he  had relied solely on the first;notice  dated  June 1’3, 19’56. Under s.  113  of the Transfer of Property  Acts notice  given  under  s. 111, el. (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. Illustration (b) is in the following terms.               "(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". If  only  the  language  of  the  illustration  were  to  be considered as soon as the second notice was given the first, notice-  would stand waived.  Counsel for the appellant  has relied  on the observation of Denning, J., (as he then  was) in  Lowenthal  v.   Vanhoute(1)  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 a subsequent notice to quit  is of  no  effect unless, with other circumstances, it  is  the basis for inferring (1) [1947]  1 K.B.D. 342. 558 an intention to create a new tenancy after the expiration of the  first. The Privy Council in Harihctr Banerji & Ors.  v. Ramsashi  Roy  &  Ors.(1)  had  said’  that  the  principles governing  a notice to quit under s. 106 of the Transfer  of Property  Act were the same in England as well as in  India. For the purpose of the present case it is wholly unnecessary to  decide whether for bringing about a waiver under s.  113 of the Transfer of Property Act a new tenancy by an  express or  implied agreement must come into  existence.   All  that need be observed is that s. 113 in terms does not appear  to indicate any such requirement and all that has to be seen is whether  any act has been proved on the part of the  present appellant  which  shows an intention to treat the  lease  as subsisting  provided there is an express or implied  consent of the person to whom the notice is given.     In  the  present case there can ’be no  doubt  that  the serving  of  the second notice and what was  stated  therein together with the claim as laid and amplified in the  plaint showed that the landlord waived the first notice by  showing

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an  intention to treat the tenancy as subsisting  and  ,that this  was  with the express or implied  consent      of  the tenant  to whom the first notice had been given  because  he had  even made payment of the rent which had  been  demanded though  it  was after the expiration of the  period  of  one month given in the notice.     It further appears that the rent Was sent by  the_tenant treating the tenancy as subsisting and not as having come to an  end  by virtue of the first notice.   There  is  another significant  fact which shows that it was the second  notice which  was  considered by the landlord to be  the  effective notice.   It was in the notice :sent in October  4957  ,that the  landlord,  for  the first time, raised  the  ground  of personal  necessity.   In the suit requirement  of  personal necessity was made one of the main grounds on which eviction was sought. In the first notice which was sent in June  1956 no  such requirement or ground had been mentioned.   It  was not  open, therefore to the landlord to say that he did  not ,want to rely on the second notice and should be-allowed  to base  his   action  for eviction only on  the  first  notice containing  the ground of the default in payment of  arrears of rent.’ We are satisfied that the suit of the landlord was rightly dismissed though we have sustained it.’ dismissal on different reasoning. The appeal, therefore, fails and it is dismissed with costs. y.p.                                    Appeals dismissed (1) 45 I.A. 222. 559