| SooperKanoon Citation | sooperkanoon.com/1235007 |
| Court | Karnataka High Court |
| Decided On | Jan-09-2024 |
| Case Number | RFA 44/2020 |
| Judge | S.R.KRISHNA KUMAR |
| Appellant | T A Kaleemulla |
| Respondent | Mohammed Ilyas Basha |
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2024. KHC:1275 RFA No.44 of 2020 R IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE9H DAY OF JANUARY, 2024 BEFORE THE HON'BLE MR JUSTICE S.R.KRISHNA KUMAR REGULAR FIRST APPEAL NO.44 OF2020POS) BETWEEN: SRI. T A KALEEMULLA S/O. LATE K T AZMATHULLA SAHEB, AGED ABOUT62YEARS, R/AT NO.7/2, MALAVALLI RAMA RAO LANE, BENGALURU560002. …APPELLANT (BY SRI. UDAYA HOLLA, SENIOR ADVOCATE FOR SRI.MAHAMOOD PATEL, ADVOCATE) AND: SRI. MOHAMMED ILYAS BASHA S/O. O M ISMAIL SAB, AGED ABOUT53YEARS, R/AT NO.25/1-2, 5TH CROSS, BORE BANK ROAD, BENSON TOWN, BENGALURU560046. …RESPONDENT (BY SRI. IMRAN PASHA, ADVOCATE) THIS RFA IS FILED UNDER SEC.96 OF CPC, 1908, AGAINST THE
JUDGMENTAND DECREE DATED1810.2019 PASSED IN OS.NO.2621/2017 ON THE FILE OF THE III ADDITIONAL CITY CIVIL AND SESSIONS JUDGE, BENGALURU, PARTLY DECREEING THE SUIT FOR POSSESSION AND DAMAGES. THIS APPEAL, COMING ON FOR FURTHER HEARING, THIS DAY, THE COURT DELIVERED THE FOLLOWING: - 2 - NC:
2024. KHC:1275 RFA No.44 of 2020
JUDGMENTThis appeal by the defendant in O.S.No.2621/2017 on the file of the III Addl. City Civil and Sessions Judge, Bengaluru City, is directed against the impugned judgment and decree dated 18.10.2019, whereby the said suit filed by the respondent – plaintiff against the appellant – defendant for recovery of vacant possession of the suit schedule immovable property and for damages at Rs.50,000/- per month was partly decreed by the trial court in favour of the respondent – plaintiff against the appellant – defendant.
2. For the purpose of convenience, the parties are referred to their respective rankings in the suit before the trial court.
3. The brief facts giving rise to the present appeal are as under:- The plaintiff instituted the aforesaid suit for damages and other reliefs interalia contending that he was the owner and landlord of the suit schedule property having acquired the same under a registered gift deed executed in his favour. It was contended that the defendant was a tenant under the plaintiff in respect of the suit schedule property on a monthly rent of - 3 - NC:
2024. KHC:1275 RFA No.44 of 2020 Rs.29,990/-, the tenancy being monthly tenancy from month to month as per English calendar month. It was further contended that the plaintiff terminated the tenancy of the defendant under him by issuance of a termination notice dated 08.03.2017 through his Advocate, to which the defendant sent a false and untenable reply dated 30.03.2017 and refused to vacate and hand over vacant possession of the suit schedule property to the plaintiff, who instituted the instant suit for eviction, damages of Rs.50,000/- per month and for other reliefs.
4. The defendant filed his written statement disputing and denying the allegations and claim made by the plaintiff. The defendant admitted that he was a tenant under the plaintiff on a monthly rent of Rs.29,990/- and contended that the legal notice dated 08.03.2017 issued by the plaintiff had been suitably replied to by the defendant. It was contended that the tenancy of the defendant had not been duly and validly terminated and that the plaintiff was not entitled to the reliefs sought for by him in the suit. 4.1 The defendant further contended that he had taken the suit schedule property on lease from the plaintiff’s mother Mrs.Zaibunisa @ Zaiboon Bee on 01.10.1998 and the same was - 4 - NC:
2024. KHC:1275 RFA No.44 of 2020 periodically increased by her up to 20.09.2012 when she executed a Gift deed in favour of the plaintiff, who became the owner and landlord of the suit schedule property. It was further contended that thereafter the plaintiff also increased the monthly rent which ultimately became Rs.29,990/- being paid by the defendant to the plaintiff. 4.2 The defendant contended that since the increase in rents was causing prejudice and hardship to him, he requested the plaintiff to sell the suit schedule property in favour of the defendant under an oral Sale Agreement dated 23.06.2016 in respect of the ground floor shop in the suit schedule property for a total sale consideration of Rs.20 lakhs. It was contended that both plaintiff and defendant agreed that a sum of Rs.1,50,000/- which had already been paid by the defendant to the plaintiff by way of security deposit would be treated as advance and part of the sale consideration towards the aforesaid sale transaction. It was further contended that subsequently, the defendant paid Rs.5,00,000/- vide cheque dated 27.06.2016 and Rs.2,50,000/- vide cheque dated 08.11.2016 towards further advance and part of the sale consideration. The defendant contended that he continued to pay rents also to the plaintiff upto July, 2017 even subsequent to the - 5 - NC:
2024. KHC:1275 RFA No.44 of 2020 issuance of the termination notice dated 08.03.2017 and in view of the said rent being received by the plaintiff without any protest by treating the defendant as a tenant, the plaintiff has voluntarily waived the notice of termination dated 08.03.2017 and the suit based on the said notice was liable to be dismissed. 4.3 It was also contended that since the plaintiff did not execute sale deed in favour of the defendant pursuant to the sale agreement dated 23.06.2016 entered into between the parties, the defendant has instituted one more suit in O.S.No.7812/2017 for specific performance and other reliefs and the present suit was not maintainable and liable to be dismissed. Accordingly, the defendant sought for dismissal of the suit.
5. Based on the above pleadings, the trial court framed the following issues:- (i) Whether the plaintiff proves the valid termination of tenancy?. (ii) Whether the plaintiff proves that he is entitled for damages at the rate of Rs.50,000/- per month ?. (iii) Whether the plaintiff is entitled for the reliefs as prayed for ?. - 6 - NC:
2024. KHC:1275 RFA No.44 of 2020 (iv) What order or decree ?. Additional issues: (i) Whether the defendant proves that the plaintiff has waived the termination notice ?. (ii) Whether the defendant proves that in view of filing of suit for specific performance by him, this suit is not maintainable ?.
6. The plaintiff examined himself as PW-1 and documentary evidence at Exs.P1 to P5 were marked on his behalf, while the defendant examined himself as DW-1 and Exs.D1 to D13 were marked by him.
7. After hearing the parties, the trial court answered issue No.1 and additional issue No.1 in favour of the plaintiff by holding that the tenancy of the defendant under the plaintiff had been validly terminated and that the defendant had not proved that the plaintiff had waived the said termination notice. The trial court also answered additional issue No.2 against the defendant by holding that he had not proved that the present suit was not maintainable in view of the defendant No.2 having filed a separate suit in O.S.No.7812/2017 for specific performance and other reliefs - 7 - NC:
2024. KHC:1275 RFA No.44 of 2020 against the plaintiff. The trial court however answered issue No.2 against the plaintiff by declining to grant damages of Rs.50,000/- per month as claimed by the plaintiff. Accordingly, the trial court partly decreed the suit by rejecting the claim for damages and by directing eviction of the defendant by directing him to quit and deliver vacant possession of the suit schedule property to the plaintiff.
8. Aggrieved by the impugned judgment and decree passed by the trial court, appellant – defendant is before this Court by way of the present appeal.
9. Heard learned Senior Counsel for the appellant and learned Senior Counsel for the respondent and perused the material on record.
10. In addition to reiterating the various contentions urged in the appeal and referring to the material on record, learned Senior Counsel for the appellant submitted that the trial court committed an error in failing to appreciate that since the appellant – defendant had already instituted a separate suit in O.S.No.7812/2017 against the respondent – plaintiff, which was pending adjudication before the trial court, the present suit was not maintainable. It was - 8 - NC:
2024. KHC:1275 RFA No.44 of 2020 submitted that after issuance of the termination notice at Ex.P4 dated 08.03.2017, the defendant had paid monthly rents up to July, 2017 which was received by the plaintiff without any protest and by treating the defendant as his tenant, which indicated that the plaintiff had waived the said termination notice, as a result of which, there was no valid termination and the suit for eviction / possession was liable to be dismissed. In this context, it was submitted that in the present appeal, the appellant – defendant has filed I.A.1/2023 for permission to produce additional evidence along with the Bank extract of the defendant indicating that Rs.26,915.75/- was paid by cheque by the defendant to the plaintiff on 10.04.2017 towards rent in respect of the suit schedule property. It was therefore submitted that the impugned judgment and decree passed by the trial court deserves to be set aside and the suit of the plaintiff was liable to be dismissed. In support of his submissions, learned Senior Counsel placed reliance upon the following judgments: - (i) Kai Khushroo Bezonjee Capadia Vs. Bai Jerbai Hirjibhoy Warden and another – AIR1949FC124 (ii) Karnani Industrial Bank Ltd., Vs. Province of Bengal and others – 1951 SCC457 - 9 - NC:
2024. KHC:1275 RFA No.44 of 2020 (iii) Tayabali Jaffarbhai Tankiwala Vs. M/s. Asha and Co. and another – 1970 (1) SCC46 (iv) The State of U.P. Vs. Zahoor Ahmad and another – 1973 (2) SCC547 (v) Auto World Vs. K.V. Sathyavathi – AIR2015KAR128 (vi) K. Nanjappa Vs. R.A. Hameed and another – (2016) 1 SCC762 (vii) Joseph Kantharaj and another Vs. Attharunnisa Begum S. – (2010) 2 SCC619 11. Per contra, learned Senior Counsel for the respondent – plaintiff would support the impugned judgment and decree and submit that there is no merit in the appeal and that the same is liable to be dismissed. It was submitted that the respondent does not dispute that he received Rs.26,915.75/- from the defendant on 10.04.2017. It was however submitted that the said amount was received by way of damages by the plaintiff from the defendant, who paid the same voluntarily without the plaintiff making any demand in this regard. It was further submitted that the trial court came to the correct conclusion and mere acceptance of rent without there being any consent / assent by the plaintiff to treat the lease as subsisting would not amount to waiver of the termination - 10 - NC:
2024. KHC:1275 RFA No.44 of 2020 notice and as such, the said contention of the appellant – plaintiff was rightly rejected by the trial court. On instructions, learned Senior Counsel for the respondent does not dispute the contention of the appellant that as per the bank extract / statement produced along with I.A.1/2023, the appellant deposited a sum of Rs.26,915.75/- in the account of the respondent on 10.04.2017. It is however contended that the said amount had been paid voluntarily by the appellant to the respondent by way of damages after issuance of the legal notice dated 08.03.2017 and as such, mere payment of the said amount would not amount to waiver of the termination notice by the respondent so as to preclude him from seeking eviction of the appellant from the suit schedule property. It was therefore submitted that the impugned judgment and decree passed by the trial court does not warrant interference by this Court in the present appeal. In support of his submissions, learned Senior Counsel has placed reliance upon the following judgments:- (i) Sarup Singh Gupta Vs. S.Jagdish Singh and others – AIR2006SC1734 (ii) Shanti Prasad Devi and others Vs. Shankar Mahto and others – AIR2005SC2905 - 11 - NC:
2024. KHC:1275 RFA No.44 of 2020 (iii) C. Albert Morris Vs. K. Chandrasekaran and others – (2006) 1 SCC228 (iv) Mr. Haneef Sait Vs. Mr. Syed Asif – ILR2011KAR739 (v) Jaleel Sab Vs. M. Surendra Nayak – LAWS (KAR) 2016 3 415 (vi) Sri. Mahanthara Mutt Trust Rep. by its Trustees and others Vs. Sri. A.R.Mankikya Vyasagam Chettiar – ILR2007KAR3862 (vii) K.S. Mani and others Vs. K. Vasudeva and another – (2019) 5 Kant. LJ59712. The following points arise for consideration in the present appeal:- (i) Whether the trial court was justified in holding that the respondent – plaintiff had waived the notice of termination of tenancy at Ex.P4 dated 08.03.2017 by accepting rents from the appellant after issuance of the same to the defendant?. (ii) Whether the trial court was justified in decreeing the suit in favour of the respondent – plaintiff despite pendency of O.S.No.7812/2017 filed by the appellant – defendant against the respondent – plaintiff for specific performance and other reliefs in relation to the suit schedule property?. - 12 - NC:
2024. KHC:1275 RFA No.44 of 2020 (iii) Whether the impugned judgment and decree passed by the trial court warrants interference by this Court in the present appeal?. Re. Point No.(i):- 13. A perusal of the material on record will indicate that it is an undisputed fact that the appellant – defendant was a tenant under the respondent – plaintiff in respect of the suit schedule property on a monthly rent of Rs.29,990/- and the tenancy being monthly tenancy and that there was no written contract, viz., Lease Deed / Agreement, much less any registered Lease Deed / Agreement between the parties. It follows therefrom that since the lease between the appellant and the respondent is a monthly lease from month to month as contemplated under Section 106 of the Transfer of Property Act (for short, the ‘T.P.Act’), the said monthly lease would be terminable by the respondent by issuing a termination notice as contemplated under Section 111 (h) r/w Section 106 of the T.P. Act. In the instant case, the plaintiff got issued a termination notice at Ex.P4 dated 08.03.2017, which was received by the defendant, who issued a reply dated 30.03.2017 disputing and denying the claim of the plaintiff, which resulted in the - 13 - NC:
2024. KHC:1275 RFA No.44 of 2020 plaintiff instituting the instant suit for eviction and other reliefs on 13.04.2017. In the interregnum, the defendant paid a sum of Rs.26,915.75/- by cheque on 10.04.2017, which has not been disputed by the plaintiff, who also does not dispute that he received further sums from the defendant upto July 2017. 13.1 According to the defendant, since the plaintiff received rents from him in relation to the suit schedule property even subsequent to 08.03.2017 when he issued the termination notice, the said notice as well as the termination of the tenancy has been waived by the plaintiff as contemplated under Section 113 of the T.P. Act, as a result of which, the tenancy of the defendant under the plaintiff continued to remain subsisting and the suit for eviction based on alleged termination of tenancy was not maintainable and liable to be dismissed. 13.2 Per contra, the plaintiff contended that apart from the fact that the plaintiff had received the said amounts from the defendant by way of damages and not rent after issuance of the termination notice dated 08.03.2017, mere payment of rent by the defendant and acceptance of the same by the plaintiff would not amount to waiver of the termination notice, especially when there was no intention on the part of the plaintiff to assent / consent to - 14 - NC:
2024. KHC:1275 RFA No.44 of 2020 treat the lease as continuing or subsisting after issuance of notice and the Trial Court correctly rejected the said contention urged by the defendant. 13.3 The question as to whether mere acceptance of rent by the landlord from the tenant after issuance of a termination notice under Section 111(h) of the T.P.Act in respect of monthly tenancy in terms of Section 106 of the T.P.Act amounts to waiver of the termination notice as contemplated under Section 113 of the T.P Act is no longer res integra in the light of the several judgments of the Apex Court and this Court in this regard, wherein it has been clearly held that mere payment of rent by the tenant and acceptance of the same by the landlord after issuance of termination notice and during the pendency of the suit for eviction would not tantamount to the landlord waiving the termination notice nor signifying his assent or giving his consent for the lease to continue or subsist even after termination. 13.4 In Shanthi Prasad Devi’s case supra, the Apex Court held as under: “16. In reply, we have heard learned counsel Shri Prabhash Kumar Yadav assisted by Dr. Krishan Singh Chauhan, Advocate who supported the view - 15 - NC:
2024. KHC:1275 RFA No.44 of 2020 taken by the High Court and the courts below in decreeing the suit for ejectment. Section 116 of the Transfer of Property Act reads thus: “116. Effect of holding over.—If a lessee or under- lessee of property remains in possession thereof after the determination of the lease granted to the lessee, and the lessor or his legal representative accepts rent from the lessee or under-lessee, or otherwise assents to his continuing in possession the lease is, in the absence of an agreement to the contrary, renewed from year to year, or from month to month, according to the purpose for which the property is leased, as specified in Section 106.
17. We fully agree with the High Court and the first appellate court below that on expiry of period of lease, mere acceptance of rent for the subsequent months in which the lessee continued to occupy the lease premises cannot be said to be a conduct signifying “assent” to the continuance of the lease even after expiry of lease period. To the legal notice seeking renewal of lease, the lessor gave no reply. The agreement of renewal contained in clause (7) read with clause (9) required fulfilment of two conditions: first, the exercise of option of renewal by the lessee before the expiry of original period of lease and second, fixation of terms and conditions for the renewed period of lease by mutual consent and in absence thereof through the mediation of local mukhia or panchas of the village. The aforesaid renewal clauses (7) and (9) in the agreement of lease clearly fell within the expression “agreement to the contrary” used in Section 116 of the - 16 - NC:
2024. KHC:1275 RFA No.44 of 2020 Transfer of Property Act. Under the aforesaid clauses option to seek renewal was to be exercised before expiry of the lease and on specified conditions.
18. The lessor in the present case had neither expressly nor impliedly agreed for renewal. The renewal as provided in the original contract was required to be obtained by following a specified procedure i.e. on mutually agreed terms or in the alternative through the mediation of Mukhias and Panchas. In the instant case, there is a renewal clause in the contract prescribing a particular period and mode of renewal which was “an agreement to the contrary” within the meaning of Section 116 of the Transfer of Property Act. In the face of specific clauses (7) and (9) for seeking renewal there could be no implied renewal by “holding over” on mere acceptance of the rent offered by the lessee. In the instant case, option of renewal was exercised not in accordance with the terms of renewal clause that is before the expiry of lease. It was exercised after expiry of lease and the lessee continued to remain in use and occupation of the leased premises. The rent offered was accepted by the lessor for the period the lessee overstayed on the leased premises. The lessee, in the above circumstances, could not claim that he was “holding over” as a lessee within the meaning of Section 116 of the Transfer of Property Act.” - 17 - NC:
2024. KHC:1275 RFA No.44 of 2020 13.5 In Sarup Singh Gupta’s case supra, the Apex Court held as under: “4. Pursuant to the liberty given, the appellant moved the High Court by filing a review petition, which has been dismissed by the impugned order.
5. Shri S.P. Goyal, learned Senior Counsel appearing on behalf of the appellant, drew our notice to Section 113 of the Transfer of Property Act, 1882 which reads 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.” He submitted that the acceptance of rent by the respondent landlord even after effecting notice under Section 111 clause (h), amounted to waiver of notice to quit within the meaning of Section 113 of the Transfer of Property Act. He submitted that waiver in the instant case was on account of implied consent of the landlord, who accepted the rent despite the notice, thereby evincing an intention to treat the lease as subsisting. He emphasised that even after filing the suit, the landlord continued to accept the rent tendered by the tenant.
6. Learned Senior Counsel also relied upon a decision of a learned Single Judge of the Calcutta High Court in Manicklal Dey Chaudhuri v. Kadambini Dassi [AIR1926Cal 763 :
43. Cal LJ272 wherein it was held that where rent is accepted after the notice to quit, - 18 - NC:
2024. KHC:1275 RFA No.44 of 2020 whether before or after the suit has been filed, the landlord thereby shows an intention to treat the lease as subsisting and, therefore, where rent deposited with the Rent Controller under the Calcutta Rent Act is withdrawn even after the ejectment suit is filed, the notice to quit is waived. In our view, the principle laid down in the aforesaid judgment of the High Court is too widely stated, and cannot be said to be an accurate statement of law. A mere perusal of Section 113 leaves no room for doubt that in a given case, a notice given under Section 111 clause (h), may be treated as having been waived, but the necessary condition is that there must be some act on the part of the person giving the notice evincing an intention to treat the lease as subsisting. Of course, the express or implied consent of the person to whom such notice is given must also be established. The question as to whether the person giving the notice has by his act shown an intention to treat the lease as subsisting is essentially a question of fact. In reaching a conclusion on this aspect of the matter, the court must consider all relevant facts and circumstances, and the mere fact that rent has been tendered and accepted, cannot be determinative.
7. A somewhat similar situation arose in Shanti Prasad Devi v. Shankar Mahto [(2005) 5 SCC543 . That was a case where the landlord accepted rent even on expiry of the period of lease. A submission was urged on behalf of the tenant in that case that Section 116, Transfer of Property Act was attracted and there was a deemed renewal of the lease. Negativing the contention, - 19 - NC:
2024. KHC:1275 RFA No.44 of 2020 this Court observed that mere acceptance of rent for the subsequent months in which the lessee continued to occupy the premise even after the expiry of the period of the lease, cannot be said to be a conduct signifying his assent to the continuing of the lease even after the expiry of the lease period. Their Lordships noticed the conditions incorporated in the agreement itself, which provided for renewal of the lease and held that those conditions having not been fulfilled, the mere acceptance of rent after expiry of period of lease did not signify assent to the continuance of the lease.
8. In the instant case, as we have noticed earlier, two notices to quit were given on 10-2-1979 and 17-3-1979. The suit was filed on 2-6-1979. The tenant offered and the landlord accepted the rent for the months of April, May and thereafter. The question is whether this by itself constitutes an act on the part of the landlord showing an intention to treat the lease as subsisting. In our view, mere acceptance of rent did not by itself constitute an act of the nature envisaged by Section 113, Transfer of Property Act showing an intention to treat the lease as subsisting. The fact remains that even after accepting the rent tendered, the landlord did file a suit for eviction, and even while prosecuting the suit accepted the rent which was being paid to him by the tenant. It cannot, therefore, be said that by accepting rent, he intended to waive the notice to quit and to treat the lease as subsisting. We cannot ignore the fact that in any event, even if rent was neither tendered nor accepted, the landlord in the event of success would be entitled to the payment of the - 20 - NC:
2024. KHC:1275 RFA No.44 of 2020 arrears of rent. To avoid any controversy, in the event of termination of lease the practice followed by the courts is to permit the landlord to receive each month by way of compensation for the use and occupation of the premises, an amount equal to the monthly rent payable by the tenant. It cannot, therefore, be said that mere acceptance of rent amounts to waiver of notice to quit unless there be any other evidence to prove or establish that the landlord so intended. In the instant case, we find no other fact or circumstance to support the plea of waiver. On the contrary, the filing of and prosecution of the eviction proceeding by the landlord suggests otherwise.
13.6 Similarly, in Albert Morris’s case supra, the Apex Court reviewed all its earlier judgments including the judgment of the Federal Court in Kai Khushroo Bezonjee Capadia’s case supra and Karnani Industrial Bank’s case supra and held as under: “26. Though the arguments of the learned Senior Counsel appearing for the appellant are attractive on the first blush yet on a careful reconsideration of the same, it has no merits. The judgments cited by the learned Senior Counsel appearing for the appellant are not only distinguishable on facts but also on law. Much argument was advanced on the receipt of the rent by the landlord after the cancellation of the lease. The consensus of judicial opinion in this country is that a mere continuance - 21 - NC:
2024. KHC:1275 RFA No.44 of 2020 in occupation of the demised premises after the expiry of the lease, notwithstanding the receipt of an amount by the quondam landlord, would not create a tenancy so as to confer on the erstwhile tenant the status of tenant or a right to be in possession. In this context, we may refer to the judgment of this Court in Raptakos Brett & Co. Ltd. v. Ganesh Property [(1998) 7 SCC184 . In para 13 of the said judgment, this Court held as under: (SCC p.
200) “13. In view of the aforesaid settled legal position, it must be held that on the expiry of the period of lease, the erstwhile lessee continues in possession because of the law of the land, namely, that the original landlord cannot physically throw out such an erstwhile tenant by force. He must get his claim for possession adjudicated by a competent court as per the relevant provisions of law. The status of an erstwhile tenant has to be treated as a tenant at sufferance akin to a trespasser having no independent right to continue in possession.
27. The following judgments may also be beneficially looked into in support of the above submission: The judgment in Saleh Bros. v. K. Rajendran [AIR1970Mad 165 : (1969) 1 MLJ247 deals with the receipt of rent subsequent to the notice determining lease and pending adjudication suit and as to whether receipt of rent by itself amounts to waiver. In paras 12, 19, 20 and 31, this Court held as under: “12. The receipt of rent may only create a presumption and cannot by its own force amount to a waiver. Section 113 consists of two limbs: (a) the express or implied consent of the person to whom notice is given and (b) ‘the act of the person giving the notice showing the intention to treat the lease as subsisting’. In order to constitute a waiver, both the limbs must concurrently operate, which means, that an act by itself and of its own force, without reference to the intention of the parties, cannot bring about a waiver. So much is quite clear from the plain language of the section, which embodies the basic principles, and I find no justification for reading the Illustrations as being - 22 - NC:
2024. KHC:1275 RFA No.44 of 2020 repugnant to the section. Every effort should be made to interpret the Illustration in conformity with the main section. The principle underlying Section 116 of the Act will also apply in applying Section 113 as this is also a case of continuance of the lease restoring the old tenancy. (AIR pp. 470-71) * * * 19. I shall next refer to another recent decision of the Supreme Court, in Calcutta Credit Corpn. Ltd. v. Happy Homes (P) Ltd. [(1968) 2 SCR20: (1968) 2 An WR42: (1968) 2 SCJ291: (1968) 2 MLJ42: AIR1968SC471 In that decision, too, the Supreme Court pointed out that under Section 113 of the Transfer of Property Act the act which operates as a waiver must show an intention to treat the lease as subsisting and other party's consent, express or implied therefor. In that case the tenants, who were holding over, issued, on 12-8-1953, a notice to the landlord of their intention to vacate the premises on 31-8- 1953. But by their letter, dated 26th August they withdrew that notice. The landlord did not agree to the withdrawal of the notice and insisted that the lease had been determined under Section 111(h) of the Transfer of Property Act. Dealing with the question of waiver, the Supreme Court observed as follows: ‘Clearly Section 113 contemplates waiver of the notice by any act on the part of the person giving it, if such an act shows an intention to treat the lease as subsisting and the other party gives his consent … express or implied therefor. The law under the Transfer of Property Act on the question in hand is not different from the law in England. Once a notice is served determining the tenancy or showing an intention to quit on the expiry of the period of the notice, the tenancy is at an end, unless with the consent of the other party to whom the notice is given the tenancy is agreed to be treated as subsisting.’ 20. … ‘The question therefore is, quo animo the rent was received, and what the real intention of both parties was?.’ (AIR p.
172) * * * 31. … The decision in Kai Khushroo v. Bai Jerbai [AIR1949FC124:
1949. FCR262:
1949. FLJ168 turned upon the peculiar facts of that case and there was a difference - 23 - NC:
2024. KHC:1275 RFA No.44 of 2020 of opinion, Patanjali Sastri, J., as he then was, taking a different view. There, after notice to quit, Defendants 2 and 3 who claimed to be sub-tenants insisted upon continuing in possession and paid the rent month after month. The majority took the view that the landlord had obvious motive in receiving the payments of rent after a particular period i.e. the appointment of a receiver of the property of the mortgagor at the instance of his mortgagee. Having regard to the uniform view taken in all the decisions, both Indian and English, I am not inclined to interpret this decision of the Federal Court as an authority for the position that the payments and receipt of rent as such in every circumstance would amount to waiver, whatever may be the circumstances of the case and the intention of the lessor. (AIR p. 175)
28. In the case of Bhawanji Lakhamshi v. Himatlal Jamnadas Dani [(1972) 1 SCC388: (1972) 2 SCR890 this Court observed as under: (SCC pp. 391-92, para
9) “9. The act of holding over after the expiration of the term does not create a tenancy of any kind. If a tenant remains in possession after the determination of the lease, the common-law rule is that he is a tenant on sufferance. A distinction should be drawn between a tenant continuing in possession after the determination of the term with the consent of the landlord and a tenant doing so without his consent. The former is a tenant at sufferance in English law and the latter a tenant holding over or a tenant at will. In view of the concluding words of Section 116 of the Transfer of Property Act, a lessee holding over is in a better position than a tenant at will. The assent of the landlord to the continuance of possession after the determination of the tenancy will create a new tenancy. What the section contemplates is that on one side there should be an offer of taking a new lease evidenced by the lessee or sub-lessee remaining in possession of the property after his term was over and on the other side there must be a definite consent to the continuance of possession by the landlord expressed by acceptance of rent or otherwise. In Kai Khushroo Bezonjee Capadia v. Bai Jerbai Hirjibhoy Warden [AIR1949FC124:
1949. FCR262:
1949. FLJ168 the Federal Court had - 24 - NC:
2024. KHC:1275 RFA No.44 of 2020 occasion to consider the question of the nature of the tenancy created under Section 116 of the Transfer of Property Act and Mukherjea, J., speaking for the majority said, that the tenancy which is created by the ‘holding over’ of a lessee or underlessee is a new tenancy in law even though many of the terms of the old lease might be continued in it, by implication; and that to bring a new tenancy into existence, there must be a bilateral act. It was further held that the assent of the landlord which is founded on acceptance of rent must be acceptance of rent as such and in clear recognition of the tenancy right asserted by the person who pays it. Patanjali Sastri, J., in his dissenting judgment, has substantially agreed with the majority as regards the nature of the tenancy created by Section 116 of the Transfer of Property Act, and that is evident from the following observations: ‘Turning now to the main point, it will be seen that the section postulates the lessee remaining in possession after the determination of the lease which is conduct indicative, in ordinary circumstances, of his desire to continue as a tenant under the lessor and implies a tacit offer to take a new tenancy from the expiration of the old on the same terms so far as they are applicable to the new situation, and when the lessor assents to the lessee so continuing in possession, he tacitly accepts the latter's offer and a fresh tenancy results by the implied agreement of the parties. When, further, the lessee in that situation tenders rent and the lessor accepts it, their conduct raises more readily and clearly the implication of an agreement between the parties to create a fresh tenancy.’
29. In the case of R.V. Bhupal Prasad v. State of A.P. [(1995) 5 SCC698 in paras 8 and 9 this Court observed as under: (SCC pp. 704-05) “8. Tenant at sufferance is one who comes into possession of land by lawful title, but who holds it by wrong after the termination of the term or expiry of the lease by efflux of time. The tenant at sufferance is, therefore, one who wrongfully continues in possession after the extinction of a lawful title. There is little difference between him and a trespasser. In Mulla's Transfer of Property Act (7th Edn.) at p. 633, the position of tenancy - 25 - NC:
2024. KHC:1275 RFA No.44 of 2020 at sufferance has been stated thus: A tenancy at sufferance is merely a fiction to avoid continuance in possession operating as a trespass. It has been described as the least and lowest interest which can subsist in reality. It, therefore, cannot be created by contract and arises only by implication of law when a person who has been in possession under a lawful title continues in possession after that title has been determined, without the consent of the person entitled. A tenancy at sufferance does not create the relationship of landlord and tenant. At p. 769, it is stated regarding the right of a tenant holding over thus: The act of holding over after the expiration of the term does not necessarily create a tenancy of any kind. If the lessee remains in possession after the determination of the term, the common-law rule is that he is a tenant on sufferance. The expression ‘holding over’ is used in the sense of retaining possession. A distinction should be drawn between a tenant continuing in possession after the determination of the lease, without the consent of the landlord and a tenant doing so with the landlord's consent. The former is called a tenant by sufferance in the language of the English law and the latter class of tenants is called a tenant holding over or a tenant at will. The lessee holding over with the consent of the lessor is in a better position than a mere tenant at will. The tenancy on sufferance is converted into a tenancy at will by the assent of the landlord, but the relationship of the landlord and tenant is not established until the rent was paid and accepted. The assent of the landlord to the continuance of the tenancy after the determination of the tenancy would create a new tenancy. The possession of a tenant who has ceased to be a tenant is protected by law. Although he may not have a right to continue in possession after the termination of the tenancy, his possession is juridical.
9. The question then is what is the meaning of the expression ‘lawful possession’. This was considered by this Court in a leading decision on the right to grant licence under the Cinematographic Act and the Madras Cinemas Rules in M.C. Chockalingam v. V. Manickavasagam [(1974) 1 SCC48 . Rule 13 of the Madras Rules required the licensee in lawful possession, when he had applied for renewal after the expiry of the - 26 - NC:
2024. KHC:1275 RFA No.44 of 2020 lease of the licensee. The Court observed thus: (SCC p. 57, para
15) ‘Turning to Rule 13, even in the first part if the applicant for the licence is the owner of the property he has to produce before the licensing authority the necessary records not only relating to his ownership but also regarding his possession. It is implicit, that the owner having a title to the property, if he can satisfy the licensing authority with regard to his possession also, will indeed be in “lawful possession”, although the word “lawful” is not used in the first part. It is in that context that the word “possession” is even not necessary to be qualified by “lawful” in the first part of Rule 13. If, however, the applicant for the licence is not the owner, there is no question of his showing title to the property and the only requirement of the law is to produce to the satisfaction of the authority documentary evidence with regard to his lawful possession of the property. The word “lawful”, therefore, naturally assumes significance in the second part while it was not even necessary in the first part. The fact that after expiry of the lease the tenant will be able to continue in possession of the property by resisting a suit for eviction, does not establish a case in law to answer the requirement of lawful possession of the property within the meaning of Rule 13. Lawful possession cannot be established without the concomitant existence of a lawful relationship between the landlord and the tenant. This relationship cannot be established against the consent of the landlord unless, however, in view of a special law, his consent becomes irrelevant. Lawful possession is not litigious possession and must have some foundation in a legal right to possess the property which cannot be equated with a temporary right to enforce recovery of the property in case a person is wrongfully or forcibly dispossessed from it. This Court in Lallu Yeshwant Singh case [Lallu Yeshwant Singh v. Rao Jagdish Singh, (1968) 2 SCR203: AIR1968SC620 had not to consider whether juridical possession in that case was also lawful possession. We are clearly of opinion that juridical possession is possession protected by law against wrongful dispossession but cannot per se always be equated with lawful possession.’ ” - 27 - NC:
2024. KHC:1275 RFA No.44 of 2020 30. In the case of Karnani Industrial Bank Ltd. v. Province of Bengal [1951 SCC457:
1951. SCR560: AIR1951SC285 this Court held as under: (SCR pp. 567-69) “Apart from the fact that the appellants did not set up in any of their letters a case of holding over, we have to see whether the plea can be said to have been successfully made out by them. There is no doubt that the appellants have established that the rent was paid on their behalf up to 31-3-1938, and it was accepted by Respondent 1. It has also been established that this payment was made by a cheque and that cheque has been encashed by the Government. Section 116 of the Transfer of Property Act, on which reliance was placed on behalf of the appellants, runs as follows: ‘If a lessee or underlessee of property remains in possession thereof after the determination of the lease granted to the lessee, and the lessor or his legal representative accepts rent from the lessee or underlessee, or otherwise assents to his continuing in possession, the lease is, in the absence of an agreement to the contrary, renewed from year to year, or from month to month, according to the purpose for which the property is leased….’ This section was construed by the Federal Court in K.B. Capadia v. Bai Jerbai [AIR1949FC124:
1949. FCR262:
1949. FLJ168 and it was held that where rent was accepted by the landlord after the expiration of the tenancy by efflux of time, Section 116 applied even though the landlord accepted the amount remitted to him as ‘part- deposit towards his claim for compensation for illegal use and occupation, and without prejudice to his rights’. It is to be noted that in that case rent had been accepted after the expiry of the tenancy. In our judgment, the present case cannot be governed by that decision, because of the fact, which in our opinion is important; that here the payment of rent up to 31-3-1938, was made not after the date of expiry of the lease, but on 5-4-1937, nearly a year before the expiry of the lease. A reference to Section 116 of the Transfer of Property Act will show that for the application of that section, two things are necessary: (1) the lessee should be in possession after the termination of the lease; - 28 - NC:
2024. KHC:1275 RFA No.44 of 2020 and (2) the lessor or his representative should accept rent or otherwise assent to his continuing in possession. The use of the word ‘otherwise’ suggests that acceptance of rent by the landlord has been treated as a form of his giving assent to the tenant's continuance of possession. There can be no question of the lessee ‘continuing in possession’ until the lease has expired, and the context in which the provision for acceptance of rent finds a place clearly shows that what is contemplated is that the payment of rent and its acceptance should be made at such a time and in such a manner as to be equivalent to the landlord assenting to the lessee continuing in possession.
31. In the case of Konchada Ramamurty Subudhi v. Gopinath Naik [(1968) 2 SCR559: AIR1968SC919 this Court held as under: (AIR p.
920) “Where the suit for ejectment of tenant after termination of tenancy, having been dismissed, a compromise decree was passed in the appellate court, enabling the decree-holder, by its terms to execute the decree if the judgment-debtor failed to pay ‘rent’ for any three consecutive months. Held, the compromise deed did not create a lease but a licence. It was difficult to impute to the decree-holder an intention to create a fresh tenancy while the fact that he brought the suit showed that his intention was to eject the judgment-debtor after having purported to terminate the tenancy. The fact that the word ‘rent’ had been used in the compromise deed was not conclusive as in its wider sense rent meant any payment made for the use of land or buildings and thus included the payment by a licensee in respect of the use and occupation of any land or buildings. The period of five years granted under the deed to the judgment-debtor for continuation of the possession also did not militate against the construction that the compromise only created a licence, for the decree-holder had lost in the trial court and it was only in the court of appeal that the compromise was arrived at.” - 29 - NC:
2024. KHC:1275 RFA No.44 of 2020 32. It is also seen from Annexure R-6 (p. 33 of the paper-book, Vol. II) which is a notice sent by the landlord's advocate to the tenant, the appellant herein on 21-2-1997 wherein it has been clearly stated in paras 2, 3 and 4 which read as under: “You were a tenant under my client in the property described in the Schedule hereunder. My client states that as the period of lease expired on 30-9-1996 by agreement, my client had issued a notice dated 24-8-1996 determining the lease and directing you to vacate and hand over possession of the schedule-mentioned property. My client states that after the determination of lease your possession amounts to that of a trespasser and you are liable to pay compensation which is to be determined after your vacating the premises. My client states that subsequent to the notice dated 24-8-1996, you have chosen to send three banker's cheques dated 30-11-1996, 24-12-1996 and 29-1-1997, each for Rs 4500. My client states that he had not consented to your continued possession of the schedule- mentioned property in any manner. Hence my client apprehends that the banker's cheques being sent are a ruse to create the appearance of continuation of tenancy. Hence take notice that my client will encash the banker's cheques already sent by you and any that might be sent in future under protest and that the payments made by way of such cheques will be adjusted towards the compensation payable by you and take notice that encashments of any cheques already issued and that might be issued in future should not be treated or considered as consent from my client for your occupying the schedule-mentioned property.” We are, therefore, of the opinion that mere acceptance of rent by the landlord, the first respondent herein, from the tenant in possession after the lease has been determined either by efflux of time or by notice to quit would not create a tenancy so as to confer on the - 30 - NC:
2024. KHC:1275 RFA No.44 of 2020 erstwhile tenant the status of a tenant or a right to be in possession. We answer this issue accordingly.
13.7 The aforesaid judgment of the Apex Court has been followed by this Court in Haneef Sait’s case, Jaleel Sab’s case and K.S.Mani’s case supra, thereby affirming the view that mere acceptance of rent by the landlord would not amount to waiver of the termination notice; in fact, in Jaleel Sab’s case supra, this Court has held that in the light of the several judgments of the Apex Court, the earlier judgment of the Co-ordinate Bench taking a contrary view in Auto World’s case supra was not good law nor a binding precedent. Under these circumstances, it is clear that the Trial Court has come to the correct conclusion that mere acceptance of rent by the plaintiff from the defendant as contended by him in the absence of any other legal or acceptable evidence adduced by the defendant that there was express or implied assent / consent by both parties, who had agreed to treat the lease as continuing or subsisting even after issuance of the termination notice, the said termination notice had not been waived by the plaintiff as contemplated under Section 113 of the T.P.Act and consequently, the Trial Court was fully justified in upholding the claim of the plaintiff and rejecting the claim of the defendant.-. 31 - NC:
2024. KHC:1275 RFA No.44 of 2020 13.8 The appellant – defendant has placed reliance upon the judgment of the Apex Court in Zahoor Ahmad’s case supra; a perusal of the said judgment will indicate that the same was rendered in the facts of the said case, which were not applicable to the case on hand, particularly when the lease / tenancy between the plaintiff and defendant in the said case was not a monthly lease as contemplated under Section 106 of the T.P.Act, which was terminated by a termination notice issued under Section 111(h) of the T.P.Act; consequently, the said judgment would not have any application to the facts of the instant case and cannot be relied upon by the appellant in support of his claim in the present appeal. 13.9 Insofar as the judgment of the Apex court in Tayabali’s case supra is concerned, the said judgment is also clearly distinguishable on facts and in the light of the subsequent judgments of the Apex Court, even this judgment would not be applicable to the facts of the instant case and the claim of the appellant cannot be accepted on this score also. 13.10 There is no gainsaying the fact that once the plaintiff instituted suit for ejectment / eviction on 13.04.2017, any amount received by him subsequent to the said date, on which he exercised his right of seeking eviction by duly terminating the - 32 - NC:
2024. KHC:1275 RFA No.44 of 2020 tenancy cannot be treated or construed as waiver of the notice of termination nor can the lease be treated as continuing or subsisting between the parties; to put it differently, the moment the suit for eviction / ejectment was filed by the plaintiff on 13.04.2017, payment of rent / damages subsequently would not affect the validity or maintainability of the suit which cannot be said to be not maintainable by acceptance of rent subsequent to institution of the suit. In this context, a perusal of the material on record will also indicate that as stated supra, the plaintiff got issued termination notice on 08.03.2017, to which the defendant got issued a reply on 30.03.2017 and the suit was filed on 13.04.2017; in the interregnum, except payment of Rs.26,915.75/- on 10.04.2017, the defendant did not make any other payment to the plaintiff towards arrears of rent / damages. It is therefore clear that mere payment of rent of Rs.26,915.75/- on 10.04.2017 would not tantamount to waiver of the termination notice, especially in the absence of any other material to signify express or implied consent on the part of the plaintiff to treat the lease as subsisting or continuing as contended by the appellant. Under these circumstances, the trial court correctly rejected the claim of the appellant and upheld the - 33 - NC:
2024. KHC:1275 RFA No.44 of 2020 claim of the respondent and the said findings recorded by the trial court do not warrant interference in the present appeal. 13.11 A perusal of the material on record would also indicate that the appellant (DW1) in his cross-examination has admitted that through the legal notice at Ex.P4 dated 08.03.2017, his tenancy had been terminated by the plaintiff; DW1 further admits that even after termination, he paid the rents voluntarily without any demand by the plaintiff and that the said payment was made online. It is also relevant to state that in the termination notice at Ex.P4, apart from duly determining / terminating the tenancy of the defendant, the plaintiff called upon the defendant to pay damages for illegal and unauthorized occupation / possession of the suit schedule property after termination. The cumulative effect of the entire pleadings and material on record is sufficient to come to the conclusion that except payment of Rs.26,915.75/- on 10.04.2017, neither the plaintiff nor the defendant intended to treat the monthly tenancy / lease as subsisting or continuing even after termination of tenancy and consequently, the trial court was justified in upholding the claim of the plaintiff and rejecting the claim of the defendant.-. 34 - NC:
2024. KHC:1275 RFA No.44 of 2020 13.12 There is yet another circumstance that would militate against the claim of the defendant that there has been waiver of termination notice by the plaintiff; in this context, it is significant to note that prior to payment of rent / damage on 10.04.2017, the defendant had already issued reply notice at Ex.P5 dated 30.03.2017 not only disputing the claim of the plaintiff including termination of tenancy but also putting forth a specific contention that he was a prospective purchaser of the suit schedule property from the plaintiff, who had allegedly agreed to sell the same in favour of the defendant. It is a matter of record that subsequently, the defendant has instituted one more suit in O.S.No.7812/2017 against the plaintiff for specific performance and other reliefs, which is pending adjudication. It is therefore clear that the plea of waiver of termination notice is not only inconsistent but also mutually destructive with the specific contention urged by the defendant that he was a prospective purchaser of the suit schedule property from the plaintiff; in other words, having put-forth this specific contention as regards an alleged oral Sale Agreement said to have been entered into between the plaintiff and himself, the defendant is estopped from contending that he had paid rents to the plaintiff on - 35 - NC:
2024. KHC:1275 RFA No.44 of 2020 10.04.2017, which would amount to waiver of notice of termination and as such, the trial court was fully justified in rejecting the plea of the defendant and upholding the plea of the plaintiff. Under these circumstances, I am of the considered opinion that the said findings recorded by the trial court do not warrant interference by this Court in the present appeal. Point No.(i) is accordingly answered in favour of the respondent – plaintiff and against the appellant – defendant. Re. Point No.(ii):- 14. The appellant – defendant contended that in view of the suit in O.S.No.7812/2017 filed by him for specific performance of an alleged oral Sale Agreement dated 23.06.2016 entered into between himself and the respondent – plaintiff, the present suit was not maintainable and liable to be dismissed. The said contention was rejected by the trial court by answering additional issue No.(ii) against the defendant. In this context, it is relevant to state that apart from the fact that there was neither legal nor acceptable evidence adduced by the defendant to establish or substantiate the said contention regarding the alleged sale transaction, mere - 36 - NC:
2024. KHC:1275 RFA No.44 of 2020 pendency of a suit for specific performance, particularly in the absence of a written sale agreement would not have the effect of rendering a suit from ejectment / eviction simpliciter and consequently, the trial court was justified in rejecting the said contention urged by the defendant, thereby answering additional issue No.(ii) in favour of the plaintiff. It is significant to state that there was no counter claim for specific performance put-forth by the defendant in the present suit, which was one for ejectment / eviction simpliciter and having regard to the limited / restricted scope and ambit of the present suit which gives rise to only issues relating to termination of tenancy and waiver of termination notice, the said findings recorded by the trial court also cannot be said to be capricious or perverse warranting interference by this Court in the present appeal. Point No.(ii) is accordingly also answered in favour of the respondent – plaintiff and against the appellant – defendant. Re. Point No.(iii):
15. While discussing Point Nos.(i) and (ii), I have already come to the conclusion that the trial court has correctly and - 37 - NC:
2024. KHC:1275 RFA No.44 of 2020 properly considered and appreciated the entire material on record and upheld the claim of the plaintiff for eviction / ejectment of the defendant from the suit schedule property by rejecting his claim in this regard. Upon re-appreciation, re-evaluation and re- consideration of the entire material on record, I am of the view that the impugned judgment and decree passed by the trial court does not warrant interference by this Court in the present appeal. Point No.(iii) is also answered in favour of the respondent – plaintiff and against the appellant – defendant.
16. Insofar as the application I.A.1/2023 for additional evidence filed by the appellant – defendant by producing copy of the bank statement indicating payment of Rs.26,915.75/- by the appellant to the respondent on 10.04.2017 is concerned, as stated supra, the said payment is not disputed by the respondent – plaintiff and the contention of the appellant that receipt of the said sum tantamount to waiver of termination notice has already been rejected by me while dealing with point No.(i) supra. Under these circumstances, I.A.1/2023 does not survive for consideration and the same is accordingly disposed of.-. 38 - NC:
2024. KHC:1275 RFA No.44 of 2020 17. In the result, I pass the following:-
ORDER(i) Appeal is hereby dismissed. (ii) The impugned judgment and decree dated 18.10.2019 passed in O.S.No.2621/2017 by the III Addl. City Civil & Sessions Judge, Bengaluru City, is hereby confirmed. (iii) The appellant – defendant is granted time upto 31.07.2024 to quit and deliver vacant possession of the suit schedule property to the respondent – plaintiff. Sd/- JUDGE Srl.