ORDER
D.P. Hiremath, J.
1. The short point for consideration in this Revision Petition is whether even after eviction order was passed by the Rent Control Court against the present revision petitioner his continuation in possession of the petition premises and payment of rent would mount to revival of old tenancy or renewal of tenancy.
2. The facts briefly are to be found in the order of the Court below which is now impugned. In Execution Petition No. 60/1980 the Decree Holder-respondent took out execution for eviction of the petitioner in pursuance of the decree he had obtained in HRC 62/1974 before the Court of I Additional Munsiff, Belgaum. The decree is dated 19-11-1974 which was an ex parte decree. The suit filed by the petitioner to set-aside that ex parte decree on the ground that he was misled by the Decree-Holder - landlord or fraud was practised on him was not upheld by the Court. Thus decree for eviction passed on 19-11 -1974 stood. Till 1980 it appears execution was not taken out by the respondent-Decree Holder. When execution application was filed the petitioner-Judgment Debtor contended that originally he had taken premises on rent on a monthly rental of Rs. 14/-. He paid at that rate till 1973. It was enhanced to Rs. 16/- per month which was the rate of rent when the decree for eviction came to be passed. After this eviction decree there was revival of the tenancy on fresh terms in 1975 fixing the rental at Rs. 20/- per month. Again on 1-1-1978 the terms of the tenancy revived fixing the rent at Rs. 25/- per month. The Decree Holder had also issued rent receipts and therefore this contention of the petitioner-Judgment Debtor has all the force.
3. The Executing Court considering the contentions of the parties and also the material placed before it came to the conclusion that there was neither revival of the tenancy nor a new tenancy was created. Even though the petitioner also disputed the identity of the property the Court below did not find any merit in that contention. As the Executing Court allowed the execution of the decree in question the Judgment Debtor has come up in Revision to this Court.
4. The Judgment Debtor gave evidence as to the rent that he was paying previous to the passing of the decree and also rent that he started paying from 1-1-1975. Though he contended that from 1-1-1978 he was paying at the rate of Rs. 25/- per month excepting his oral evidence there is no other evidence on record. As far as payment of rent at the rate of Rs. 20/- is concerned the petitioner relied on receipts passed by the respondent which are printed and which say that they are towards payment of rent. They are in Marathi. From this circumstance alone the petitioner now wants to contend that there was creation of new tenancy. In this behalf in the trial Court the Decision in the case of Chitra Talkies v. Durga Dass, : AIR1973All40 was relied upon wherein there was clear and unambiguous independent evidence to prove the tenancy inasmuch as the partners had met on certain day and agreed that there should be a new tenancy. There were also letters that were written by the alleged tenant with regard to the tenancy. Therefore the Court below distinguished the facts of that case from the facts of this case and found that simply because after decree the rent was paid at the rate of Rs. 20/- it did not necessarily follow that the new tenancy was created. In order to meet this contention the respondent's Counsel invited my attention to the order of this Court in C.R.P.4364/1982 DD 25-1-1982 - Nawaz Khan v. A. Nazeer Sheriff filed against, the Judgment and decree of the Small Causes Court in Small Cause Suit No. 16 of 1981 in which the Decree Holder-respondent had sued the Judgment Debtor for mesne profits at the rate of Rs. 20/- per month. It was contended that in that suit the petitioner never raised a contention that he was not liable to pay mesne profits but he was liable to pay only the rent as a tenant. However, when the decree was passed for mesne profits in the Revision Petition aforesaid the question was with regard to Rs. 200/- paid through a cheque by the Judgment Debtor on 24-1-1980. Incidentally it was also observed that even though an eviction order was passed, the tenant would continue to be tenant till he is actually thrown out of the premises and his possession cannot be held wrongful till he is thrown out. Therefore, the question of awarding mesne profits does not arise in such a case. It would thus only go to show that unless there is independent and clear evidence as to the revival of the tenancy or creation of new tenancy the terminology used by the tenant while paying rent or by the landlord while receiving rent would not be a conclusive factor. Even under Section 106 of Transfer of Property Act under which a notice for termination was required to be issued before coming into force of the Karnataka Rent Control Act, if rent was received after determination of tenancy by that fact alone it was settled law that there was no waiver of notice under Section 106 of the T.P. Act. It is no doubt true that receipts have been passed by Decree Holder and that he had received rent of Rs. 20/- as contended by the petitioner. As observed by this Court in the Civil Revision Petition aforesaid he continues to be Therefore even if the rents were paid after the decree was passed that alone would not be sufficient to show or prove that there was revival or renewal of tenancy. There is no other evidence to come to the conclusion that the parties intended that the tenancy should be revised.
In that view of the matter, the trial Court was justified in rejecting the contention of the petitioner. There is no merit in this Civil Revision Petition. The same is liable to be dismissed and it is dismissed. The petitioner is given six months time to vacate the premises.