2008(4) ALL MR 793
IN THE HIGH COURT OF JUDICATURE AT BOMBAY (NAGPUR BENCH)

C.L. PANGARKAR, J.

Nanaji Gajanan Upaganlawar Vs. Shabbir Husain Fida Hussain

Second Appeal No. 88 of 1996

27th February, 2008

Petitioner Counsel: S/Shri. J. PENDSEY, N. S. BHATTAD
Respondent Counsel: Shri. D. L. DHARMADHIKARI

Transfer of Property Act (1882), S.113, Illustration (b) - Waiver of notice to quit - Second notice - Simply because a landlord issues second notice it does not amount to waiver of the first notice - Tenant must prove that the landlord had an intention to treat the lease as subsisting and that he had expressly or impliedly consented - Intention of the parties will have to be gathered. 2004(2) ALL MR 154 and 2002(4) ALL MR 783 - Ref. to. (Paras 7, 8)

Cases Cited:
Tayabali Jaferbhai Tankiwala Vs. M/s. Ahsan and Co., AIR 1971 S.C. 102 [Para 7]
Rambhau s/o. Ganpat Rudrakar (deceased through L.Rs.) Manjurabai wd/o. Rambhau Radrakar Vs. Mangtulal s/o. Gowardhandas Agrawal, 2004(2) ALL MR 154=2004(1) Maharashtra Law Journal 528 [Para 7]
Kishorilal Laxminarayan Chandak Vs. Leelabai Nmandiram Holani, 2002(4) ALL MR 783=2002 (Supp.2) Bombay Cases Reporter 610 [Para 7]


JUDGMENT

JUDGMENT :- This is an appeal by the defendant. The facts giving rise to this appeal are as under :

2. The parties shall hereinafter be referred to as plaintiff and defendant.

3. Plaintiff is the owner of building situated at Mahatma Gandhi Road Ekori at Chandrapur. The defendant was a tenant of the plaintiff and was using the said premises as godown. The rent was Rs.55/- per month. The tenancy was monthly commencing from 14th day of each English Calender month. The defendant was irregular in payment of rent. The plaintiff, therefore applied to the Rent Controller for grant of permission to determine the tenancy of the defendant. The Rent Controller granted the permission on 25.04.1981. On 22.05.1981 the plaintiff through his counsel issued a notice terminating the tenancy of the defendant by 13.06.1981. Upon service of this notice the defendant sent a reply and informed the plaintiff to wait till decision of the appeal preferred against the order of the Rent Controller. Appeal came to be decided by the Resident Deputy Collector on 12.10.1981, hence on 23.12.1981 the plaintiff as a courtesy gave another notice to the defendant calling upon the defendant to vacate the premises by 14.01.1982. He was also called upon to pay damages at the rate of Rs.10/- per day. The defendant did not vacate the premises. Hence the plaintiff instituted the suit.

4. The defendant filed Written Statement and admitted that he was a tenant of the plaintiff. He also admitted the proceedings before the Rent Controller. The defendant however disputed the validity of the notice issued by the plaintiff. It is contended that since the defendant issued a second notice he has infact waived first notice and he therefore could not base the suit on the first notice. It was also contended that the permission granted by the Rent Controller was therefore exhausted and the suit was liable to be dismissed.

5. The learned Judge of the trial Court framed issues. He found that the tenancy of the defendant was monthly. The tenancy of the defendant was validly determined. The first notice was not waived and holding so he decreed the suit. The defendant preferred an appeal before the District Judge. District Judge confirmed the decree passed by the trial Court. He also found that the first notice issued by the plaintiff was not waived at all. Being aggrieved by that confirmation of decree by the first appellate Court the defendant/tenant has preferred this second appeal.

6. Second appeal has been admitted by Manoharan J. on the following substantial question of law :

"The substantial question of law that has to be decided in this appeal is, whether there is waiver of the first notice by the issue of the second notice dated 23.12.1981 (Ex.88)"

I have heard the learned counsel for the appellant and the respondent i.e. the defendant and the plaintiff respectively. Following few are the undisputed facts :

Plaintiff/landlord applied to the Rent Controller to grant permission to determine the tenancy. The Rent Controller granted permission by order dated 25.04.1981. The tenancy is monthly and commences on 14th day of each English Calender month. Plaintiff after the permission of the Rent Controller issued first notice dated 22.05.1981 (Ex.79). By this notice plaintiff/landlord called upon the defendant/tenant to vacate the premises on 13.06.1981. The defendant received notice on 29.05.1981 vide (Ex.81). Obviously 15 days clear notice ending with the month of tenancy was served. Defendant/tenant on 10.06.1981 sent a reply to the notice vide (Ex.83) informing the plaintiff that it would not be proper for him to take action since the defendant has preferred an appeal against the order of the Rent Controller. After this reply the plaintiff again sent a second notice (Ex.88) to defendant/tenant calling upon him to vacate the premises by 14.01.1982. The suit is based on the first notice (Ex.79).

7. With these admitted facts the arguments are to be appreciated. The defendant's contention is that when the plaintiff gave second notice (Ex.88) he waived the first notice and, therefore, could not base the suit on the first notice. Shri. Pendsey learned counsel for the appellant contended that Illustration (b) to Section 113 of the Transfer of Property Act makes it very clear that whenever a second notice for termination of tenancy is issued the first notice is deemed to be waived. Section 113 and Illustration (b) read as follows:

"113. Waiver of notice to quit :- A notice given under Section 111, 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.

Illustration (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."

Shri. Pendsey learned counsel submits that Illustration is very simple and clear and the case squarely falls under Illustration. The Illustration is no doubt is very simple but then it has to be read along with Section itself. The important words in the Section are:

"by any act on the part of the person giving it showing an intention to treat the lease as subsisting".

Obviously while reading the Illustration and applying it to the facts of the case intention carries more weight. Learned counsel Shri. Pendsey contended that intention to create new lease need not be looked into. He relied on a decision of Supreme Court reported in Tayabali Jaferbhai Tankiwala Vs. M/s. Ahsan and Co. and others, AIR 1971 Supreme Court 102. Supreme Court observed as follows:

"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 13, 1956. under Sec.113 of the Transfer of Property Act a notice given under Section 111, 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. 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 Vs. Vanhoute, 1947-1 KB 342, 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 an intention to create a new tenancy after the expiration of the first. The Privy Council in Harihar Banerji Vs. Ramsashi Roy, 45 Ind App 222 = (AIR 1918 PC 102), had said that the principles governing a notice to quit under Sec.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 Sec.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 Section 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."

It is neither party's case that a new lease was intended to be created. Supreme Court has specifically observed in the same decision that nonetheless the Court will have to consider if there was intention to treat the lease as subsisting and there is a express or implied consent of person to whom notice is given. Thus even the Supreme Court clearly says that the intention of the parties will have to be gathered. It does not say that since second notice is given the first is deemed to be waived and the Court need not go into the question of intention at all. It is for this reason it would be absolutely incumbent to look into the intention of the parties as to whether they treated the lease as still subsisting. Not only this but even the implied or express consent of the leasee would be required to be taken into account. This Court in a decision reported Rambhau s/o. Ganpat Rudrakar (deceased through L.Rs.) Manjurabai wd/o. Rambhau Radrakar and others Vs. Mangtulal s/o. Gowardhandas Agrawal and another, 2004(1) Maharashtra Law Journal 528 : [2004(2) ALL MR 154] observed as follows :

"It is clear from section 113 of the Transfer of Property Act that the notice of ejectment is waived not only by a subsequent act on the part of the person giving such a notice doing an act which shows an intention to treat the lease as subsisting, but only when such an act is accompanied by an express or implied consent of the tenant or the lessee. The mere act of the lessor showing an intention to treat the lease as subsisting is not sufficient to constitute a waiver. The action must have the express or implied consent of the lessee whose consent to the act must exist. For such an inference there must be a clearest indication that the recipient of the notice intended and consented to have the notice to him waived and an agreement on the part of both in respect of such waiver. In the present case, clearly the parties had been litigating against each other. Admittedly, there was no express consent of the appellant-tenant to the act of the respondent-landlord in initiating and prosecuting the permission to terminate the tenancy. What must be clearly seen is that the act which is said to constitute an intention on the part of the lessor respondent to treat the lease as subsisting is the institution and the prosecution of the permission to terminate the tenancy after the notice to quit was given on 31-8-1982. The act of the respondents challenging the order allowing the tenant's appeal against the order granting permission to the landlord to terminate his tenancy in writ petition was mere continuation of proceedings initiated by the respondent before the quit notice which took effect from 31-8-1982. It did not appear that by the mere filing of the writ petition, the lessor intended to continue the lease or to treat the lease as subsisting. The appellant-tenant had done no act such as the payment of rent by the appellant to show that the appellant intended to treat the lease as subsisting. Thus, to qualify for section 113 to apply, there was no waiver as contemplated in section 113 of the Act."

In yet another decision reported in Kishorilal Laxminarayan Chandak Vs. Leelabai Nmandiram Holani & others, 2002 (Supp.2) Bombay Cases Reporter 610 : [2002(4) ALL MR 783], this Court has observed as follows :

"In a case such as the present, the Court must have due regard to the fact that the relationship of tenancy between the parties was subject to statutory regulation and to the protection which has been granted to the tenant by the provisions of the Rent Control Order. The Supreme Court has held that in a situation such as the present, even the acceptance of rent by the landlord would not be indicative of an intention to establish a fresh contractual relationship of tenancy or to waive the earlier notice of termination. Significantly, it is not the case of the tenant that any additional ground for eviction was sought to be urged in the notice issued on 17-4-1987. The tenancy was sought to be terminated on the same grounds which have been urged in the notice dated 16-5-1986. The notice dated 17-4-1987 came to be issued only because the order of the Rent Controller became final upon the dismissal of the appeal by the Collector under Clause 21(3). That being the position, it is impossible consistent with the law which has been laid down by the Supreme Court and by this Court, to come to the conclusion that there was any intention to waive the earlier notice or to create a fresh contractual relationship of tenancy."

The facts of Kishorilal's case are almost identical. In that case also second notice was issued after the decision of appeal in rent control proceedings. In the instant case also the second notice was issued after appellate Court's order. The landlord had no intention to treat the lease as subsisting.

8. In the instant case the intention of the landlord not to treat the lease as subsisting is absolutely clear in the second notice. It is clearly averred by the landlord that because the defendant-tenant informed that the appeal was preferred and no action should be taken that the action was kept in abeyance. It is next averred in the second notice that the occupation of the tenant as per first notice is already unauthorised. Thus the landlord was certainly treating the tenant to be in unauthorised occupation. He did not disclose his intention to either treat the lease as subsisting or creation of a new one. Even defendant does not show by any of its act that lease was subsisting. He has not sent rent after the notice nor is it accepted by the landlord. What the defendant by his reply to the notice informed to the plaintiff was that since the appeal is preferred he should not act upon that notice i.e. in other words he did not want the plaintiff to immediately institute a suit. This action was merely kept in abeyance. In the first notice as well as in the second notice, the damages have been claimed by the plaintiff-landlord. Simply because a landlord issues second notice it does not amount to waiver of the first notice. The tenant must prove that the landlord had an intention to treat the lease as subsisting and that he had expressly or impliedly consented. There is nothing on record to suggest that the parties intended to treat the lease as subsisting. In the circumstances I do not find any substance in the appeal. The Courts below have rightly decreed the suit. The substantial question of law is answered accordingly. The appeal is dismissed with costs.

Appeal dismissed.