1. This Letters Patent appeal is by a tenant from a decision of Golvalkar J. in second appeal No. 204 of 1959 by which the learned Single Judge, reversing the decisions of the Courts below, decreed the plaintiff respondents' claim for eviction of the appellant from a house.
2. Shri S. C. Dubey, learned counsel for the appellant, first urged that after obtaining a permission from the Rent Controller under clause 13 of the C. P. and Berar Letting of Houses and Rent Control Order 1949, the plaintiff-landlords first gave a notice determining the tenancy with the end of the month of January 1956 on 4-1-1956; that thereafter the appellant continued to remain in occupation of the house and the plaintiffs demanded rent from him on 21-3-1956 for the month of February 1956 which was paid by the appellant and accepted by the respondents; and that the plaintiffs gave a second notice on 1-10-1956 terminating the tenancy as from 1-11-1956.
It was said that the acceptance of rent for the month of February 1956 by the landlord after the first notice dated 4-1-1956 determining the tenancy amounted to a waiver of that notice; that the giving of a second notice to quit also constituted waiver of the first notice; that on account of the said acceptance of rent a fresh tenancy was created under Section 116, T. P. Act; that, therefore, permission to serve notice to quit granted to the plaintiffs by the Rent Controller before 4-1-1956 could not be availed of by him for filing a suit of ejectment after the service of the second notice; and that the plaintiffs should have obtained fresh permission from the Rent Controller for serving a notice to quit.
3. In our view, there is no force in any of these contentions. It is quite true that the landlord accepted rent for the month of February 1956 after serving the first notice to quit. Ordinarily acceptance of rent is a strong circumstance from which an inference can be drawn that the notice to quit has been waived. But that by itself is not sufficient to show waiver. Under Section 113, T. P. Act, a notice given under Section 111(h), T. P. Act 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. It will be seen from the wording of Section 113 that in order to constitute waiver there must be an intention not only on the part of the lessor but also on the part of the lessee to treat the lease as subsisting.
What has to be proved is whether the landlord accepted the amount of rent for a period after the expiry of the notice to quit from the tenant as rent and with an intention to treat the tenancy as subsisting. The question of waiver thus being one of intention, mere payment and acceptance of rent by the landlord after the notice to quit cannot by itself necessarily constitute waiver. It was pointed out by the Federal Court in Kaj Khushroo v. Bai Jerbai Hirjibhoy, AIR 1949 FC 124, that the assent of the landlord for the continuance of a tenancy is founded on the acceptance of rent as such and in clear recognition of the tenancy rights asserted by the person who paid it. It has been observed in Woodfall's 'Law of Landlord and Tenant' (page 1052-53, 25th edn.) that a demand of rent accruing subsequently to the expiration of a notice to quit is not necessarily a waiver of the notice, but is a question of intention which ought to be left to the jury.
Now, here, the plaintiff-landlord Sitamvarnath was not asked any question in cross examination as regards the circumstances in which he made a demand for rent and the conditions on which he accepted it. On the other hand, the appellant said in his evidence that when he paid rent to the plaintiffs on 21-3-1956, he told them that he himself was going to vacate the house as he found it too small for his requirements. It is thus manifest that the payment and acceptance of rent after the first notice to quit was not with an agreement between the landlords and the tenant to treat the tenancy as continuing. It cannot, therefore, be maintained that the first notice to quit was waived by this acceptance of rent.
4. The first notice, no doubt, can be said to have been waived by the giving of the second notice on 1-10-1956. But the waiver of the first notice to quit has not the effect of creating a new tenancy. The waiver of the first notice to quit necessarily implies restoration of the old tenancy. The effect of a second notice to quit under Section 113 is that the determination of the lease under Clause (h) of Section 111 does not take effect because it is waived and the previous tenancy continues as before. The tenancy that runs after the waiver is not a fresh tenancy but is the same old tenancy that existed before. If the old tenancy continues, then the giving of a second notice to quit when the first notice is found to be defective or is waived cannot in any way affect the permission granted to the landlord by the Rent Controller to serve on a tenant a notice to quit after terminating I that tenancy.
5. Learned counsel further contended that the acceptance of rent and the continuance of the appellant in occupation of the property after the determination of the lease by the notice dated 4-1-1956 created a fresh tenancy under Section 116, T. P. Act which is entirely different from Section 113. What the former section contemplates is that on one side there should be an offer of taking a renewed or fresh demise evidenced by the lessee continuing in occupation, of the property after his interest has ceased, 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 (see AIR 1949 FC 124 (supra)). If Section 116 is applicable to the facts of any case, then no doubt a fresh tenancy is created. But there must be evidence to show that after the determination of the tenancy there was by the tenant an offer of taking a fresh demise and a definite consent of the landlord to the tenant's continuance of possession of the property.
There is no such evidence, as has been pointed out earlier. The payment and acceptance of rent for the month of February 1956 considered with the statements of the plaintiffs and the appellant do not at all indicate that the parties were ad idem as to the creation of a fresh contractual tenancy. It must be noted that Section 116 can have no application when the notice to quit is regarded as waived. For the applicability of Section 116 the determination of the lease under Section 111 must have taken effect. If the notice to quit is waived, then it ceases to take effect. Consequently Section 116 can have no applicability where a notice to quit is held to have been waived.
6. Learned counsel referred us to the decision in Ihatekhan v. Ramjanali, 1953 Nag LJ (Notes) No. 24 and Chaturbhuj v. Manjibai, AIR 1959 Bom 292, in support of the contentions advanced by him. In the Bombay case it was held that waiver of notice determining tenancy can be inferred from the conduct of the person serving notice indicating an intention to treat the lease as subsisting and that in the absence of any other circumstance, acceptance oE rent which has become due in respect of the premises since the expiration of the notice would amount to waiver of the notice. Here there are circumstances to indicate that by accepting rent for the month of February 1956 the landlords did not intend to treat the tenancy as subsisting.
In that case it was further held that the permission granted by the Rent Controller under clause 13 of the C. P. and Berar Letting of Houses and Rent Control Order 1949 was exhausted when the landlord first gave a notice to quit on 21-7-1950 and that he could not without obtaining fresh permission from the Rent Controller give a second notice to quit. With due respect to the learned Judges of the Bombay High Court, we do not find ourselves in agreement with this view which does not take into account the fact that waiver of a notice to quit necessarily implies restoration of the old tenancy. The Bombay case does not also notice the decision of the Federal Court in AIR 1949 FC 124.
In the case of Ihatekhan, 1953 Nag LJ (Notes) No. 24 (supra), Deo J. held that the acceptance of rent after institution of a suit for ejectment without reservation showed an intention to treat the lease as subsisting, and that if the notice to quit was waived then there was an implied creation of a new lease from month to month under Section 116, T. P. Act. We do not agree with this either. As we have endeavoured to point out earlier, Section 116, T. P. Act cannotcome into play when notice to quit is held to have been waived.
7. For all these reasons, we do not see any ground to admit this appeal which is accordingly rejected.