Full Judgment
M.M. Pareed Pillay, J.
1. Defendant is the appellant. Plaintiff (respondent) filed the suit for eviction of the defendant who is a tenant of the plaint schedule building. The trial Court. decreed the suit and it has been confirmed by the lower appellate Court.
2. For the plaintiff, Advocate Mr. Cyriac Joseph entered appearance. Mr. E. V. Nayanar, counsel for the defendant contended that as rent was received by the plaintiff subsequent to the notice there is waiver and hence the plaintiff cannot get recovery of possession of the property. Learned counsel for the plaintiff submitted that mere acceptance of rent does not tantamount to a waiver as the rent was accepted in lieu compensation for use and occupation.
3. The essential element of waiver is that there must be a voluntary and intentional relinquishment of a known right or conduct as warrants the inference of the relinquishment of such right. To constitute waiver there must be definite evidence of a voluntary and intentional relinquishment of a known right. When a landlord has issued notice to the tenant to quit from the premises and when he immediately filed the suit mere acceptance of rent cannot be considered as a waiver, especially when the landlord accepted the rent as compensation for use and occupation. If it is held otherwise it would result in gross hardship to a plaintiff who had filed the suit for eviction and if the suit is prolonged indefinitely from Court to Court. As the plaintiff in the present case has stated that the amount of Rs. 200/- was received by him as compensation for use and occupation it cannot be held that the plaintiff has waived his right to get eviction of the defendant from the property. In Mohommed Sadruddin Khan v. Gulam Mohiuddin, AIR 1953 Hyderabad 97 it has been held that the mere fact that rent is accepted after a notice of ejectment is given would not amount in law to a waiver of the right of the landlord to eject a tenant. In the above decision it has been stated that there ought to be evidence of an express intention on the part of the landlord to waive his right to eject a tenant. As the present suit was filed immediately after issuing notice to the defendant and as the rent was received by the plaintiff only as compensation for use and occupation and as there is no other evidence of an express intention on the part of the plaintiff to waive his right to eject the defendant it is not possible to hold that the plaintiff has waived his right to eject the defendant from the premises. There is no evidence in the case that the plaintiff has desired that the defendant should continue in possession as a tenant.
4. There is also no pleading in the written statement that the plaintiff received rent after the suit notice. Nor such a contention was taken in the first appeal memorandum. In the absence of any pleading that the plaintiff has received rent after notice and that it amounts to intentional waiver on his part defendant cannot succeed in his contention.
5. Another contention is that Ext. A-2 notice is not valid and proper. Ext. A-2 notice dated 26-8-1986 was received by the defendant on 1-9-1986. It is contended by the defendant's counsel that 15 days time granted does not end with the end of tenancy month. In the notice the tenant is specifically asked to vacate the suit premises only after the expiry of tenancy month which starts in September. That means he need only to vacate the premises in October. As the suit was filed on 16-12-1986 it cannot be contended that after receipt of the notice the tenant did not get 15 days time with the end of the tenancy month. Learned Additional District Judge has considered the matter correctly and hold that Ext. A-2 notice is proper and valid.
6. Counsel for the defendant submitted that at least six months time may be granted for the defendant to surrender the premises. Counsel for the plaintiff opposed the above request. Considering all aspects of the matter I held that three months time can be granted from the date of judgment to the defendant to vacate the premises. Such time will be available to him only if he files an unconditional affidavit before the trial Court expressing his readiness to surrender the premises. Such an affidavit should be filed before the trial Court on or before 28-11-1989. If such an unconditional affidavit is filed by the defendant three months time from the date of this judgment will be available to the defendant to surrender the premises.
7. Concurrent findings of the Courts below do not warrant interference. The Second Appeal is dismissed with no order as to costs.