1. The respondent herein filed a suit against the appellant O.S. No. 1000/71, District Munsif's Court. Rajamundry, for eviction and recovery of possession of a building at Rajamundry. His case was that the defendant was his tenant and that plaintiff issued a notice on 24-9-1971 asking the defendant to quit the premises on or before 31-10-1971. As the building was constructed after 16-7-1957, the provisions of the Andhra Pradesh Buildings (Lease, Rent and Eviction) Control Act will not apply. The defendant contended that the building was constructed before 1957 and hence the proper remedy of the plaintiff was to file an eviction petition under Andhra Pradesh Buildings (Lease, Rent and Eviction) Control Act and the suit was not maintainable. Even though the plaintiff had issued the notice to quit, he had accepted the rent from the date on 3-11-1971 and 3-12-1971 and subsequently. In these circumstances the said acceptance operated as waiver of the notice to quit.
2. The learned District Munsif held that the Building was constructed after 1957 and hence the Buildings (Lease, Rent and Eviction) Control Act was not applicable. The notice to quit was valid and proper and there was no waiver of the said notice by the plaintiff in accepting the rent and the defendant was liable to vacate the premises and give possession to the plaintiff.
3. On appeal the learned District Munsif affirmed the judgment and decree of the court below and dismissed the appeal with costs he also held that the suit building was constructed after 1957 and hence the Buildings (Lease, Rent and Eviction) Control Act was not applicable. He agreed with the trial court that the notice to quit was proper and there was no waiver of the notice to quit.
4. The question whether the building was constructed before or after 1957 is a question of fact and as both the courts have given a finding after considering the evidence, I am not inclined to interfere with that finding in Second Appeal.
5. It cannot also be seriously contended that the notice to quit was not valid and proper as it was issued on 24-9-1971 and gave more than a month's time for vacating the premises.
6. The only question, therefore, which remains to be considered is whether there was a waiver of the notice to quit. The se of the defendant is that the plaintiff accepted rent under two receipts Ex. B-1 dated 3-11-1971 and ex. B-2 dated 3-12-1971. The month for which the rent was paid and received under these two documents are not mentioned, but as there is no evidence to show that there was any arrear due on the date, it is clear that Ex. B-1 represents the receipt of the rent for the month of October, 1971 and Ex. B-2 represents the receipts of the rent for the month of November, 1971. The defendant relies upon Section 113 of the Transfer of Property Act which is as follows :
'A notice given under Section 111(b) is waived with the express or implied consent of the person to whom it was given by any act on the part of the person giving it showing an intention to treat the lease as subsisting.
Illustration : (a) A lessor gives B a lessee notice to quit the property leased. The notice expires B tenders and A accepts rent which was due in respect of the property since the experience of the notice. The notice is waived.'
It is argued that the mere acceptance of the rent which has become due since the expiration of the notice would operate as a waiver and in this case there was such an acceptance. It is seen that Ex. B-1 would not operate as waiver. The only question, therefore, is whether Ex. B-1 which represents the rent for November, 1971 would operate as a waiver in this case. The plaintiff as P.W. 1 admitted that after the quit notice, the defendant was paying the rent regularly, but he denied that he accepted the rent with the intention of continuing the tenancy. He stated that when he received the rent under E. B-2 he issued the receipt without knowing the legal effects but afterwards he consulted a lawyer and he issued the subsequent receipts 'without prejudice'. This evidence was accepted by the Courts below and therefore it must be taken that the receipts were issued without any intention to treat the lease as subsisting.
7. But even so, it is argued on behalf of the defendant appellant that mere acceptance of rent which has become due after the expiration of the notice would operate as a waiver irrespective of the intention of the party and in support of this contention reliance is placed upon illustration (a) of Section 112 which has already been set out it is no doubt true the illustration (a) read by itself would seem to indicate that when the lessor accepts the rent which had become due since the expiration of the notice, the notice to quit is waived. But in my view, the illustration cannot be read in isolation. It has to be read with the main part of the section to which it is an illustration. Under the main section, a notice is waived only by any act on the part of the person giving it showing an intention to treat the lease as subsisting. Reading the illustration together with the main part of the section it will follow that even the acceptance of the rent subsequent to the notice would operate as a waiver only if it shows an intention to treat the lease as subsisting. This is a case where the rent was received after the filing of the suit which was on 1-11-1971. Apart from the plaintiff's evidence that he had no intention to treat the lease as subsisting by accepting the rent, it is difficult to accept the contention that when a person filed a suit seeking eviction and thereafter received rent, he still intended to treat the lease as subsisting.
8. The question whether the mere acceptance of rent after a notice to quit and in particular acceptance of rent even after the suit is filed would operate as a waiver has been the subject of several decisions and divergent views have been expressed. The preponderance of authority appears to be in favour of the view which I have taken, viz., that the acceptance of rent subsequent to the filing of the suit will not operate as a waiver in the usual course. All the authorities expressing the different views have been considered and dealt with in an elaborate judgment by the Madras High Court in Saleh Bros v. K. Rajendran, : AIR1970Mad165 . After considering all the decisions as also the law in England, it was held that acceptance of rent after the suit in ejectment is not regarded as a waiver, because, once the matter has come to court, the election has become irrevocable. The plain language of Section 113 of the Transfer of Property Act indicates that the act of the lessor must be such as to constitute a clear evidence of his intention to treat the lease as subsisting and the illustration (a) must be understood and applied, in consonance with the principle underlying the action with due reference to the intention of the lessor. There is no warrant for the view that mere receipt of rent, whatever may be the intention of the lessor, should of its own force, divorced from the circumstances of the case, be regarded as amounting to a waiver. Some of the other decisions which take the same view are :
Motilal v. Basantilal, : AIR1956All175 , Harbhajan Singh v. Munshi Ram : Zaffar Hussain v. Mahabir Prasad, : AIR1957Pat206 ; Ram Lal v. Saradari Lal, AIR 1968 J & K 22.
On the other hand there are some decisions which take the contrary view. The leading decision taking the contrary view is that of the Calcutta High Court in Manicklal v. Kadambini, AIR 1926 Cal 762. One of the reasons given by the Calcutta High Court for reaching the decision that an acceptance of rent would itself constitute a waiver under Section 113 is that under Section 112 provides it is specifically provided that where rent is accepted after the institution of a suit to eject the lessee on the ground of forfeiture, such acceptance is not a waiver, whereas there is no special provision similar to that in Section 113. I do not think that any such inference can be drawn from the absence of a provision under Section 113 similar to the provision contained in Section 112. As the main part of the section is clear and it states that notice can be waived only by any act on part of the person giving it showing an intention to treat the lease as subsisting, it was perhaps considered unnecessary to have a provision in Section 113 similar to the proviso to Section 112. The Madras High Court has considered this aspect also in detail and I agree with the view expressed by the Madras High Court on this aspect of the matter also. In Ram Dayal v. Jwala Prasad (AIR 1966 All 623) it was observed that once it is found that the rent for a period subsequent to the notice to quit was accepted, it does not make any difference whether such acceptance was before suit or subsequent to the suit. It was observed that it is not the diligent prosecution of the suit which is material in judging whether the landlord intended to continue the tenancy of the defendant, but it is the acceptance of rent by him for a period subsequent to the notice to suit which is material. But, it is to be noticed that even in this case it was held that it is necessary to find whether in accepting the rent, the plaintiff intended that the relationship of landlord and tenant subsisted between the parties. This decision does not say that acceptance of rent after notice to quit ipso facto constitute a waiver.
9. It was contended on behalf of the appellant that even assuming that an acceptance of rent after notice to quit by itself does not constitute a waiver and there must be an intention to treat the lease as subsisting in this case, such an intention is apparent as the landlord gave receipt for rent and did not describe the amount as damages for use and occupation. It is true that in Ex. B-2 which is a printed receipt, the expression used is 'ADDE' or rent. But from that circumstances alone it cannot be said that the landlord had the intention to treat the lease as subsisting. The question as to what was the intention of the landlord is a question of fact. In this case the plaintiff gave evidence that he was not aware of the legal consequences and merely gave a printed receipt and thereafter when he consulted a lawyer and came to know about the consequence, he started issuing the rent receipt 'without prejudice'. Accepting the evidence of the plaintiff and having regard to the circumstances of the case, the courts below have held that there was no intention to treat the lease as subsisting. I see no reason to take a different view.
16. In these circumstances, the Second Appeal is dismissed with costs. No leave.
17. Appeal dismissed.