1. These two appeals under Clause 10, Letters Patent raise a common question of law, namely whether acceptance by a landlord of rent in regard to a period subsequent to the expiration of the notice to quit constitutes a waiver of the said notice.
2. The petitioner in this case is the owner of a certain house situate in Jullunder while the respondents are two legal practitioners of the same town who are in occupation of two separate portions of the said house.
The landlord brought actions against his tenants for their eviction and obtained consent decrees against them according to which one of the tenants was to vacate the premises on 29-6-1949, and the Other on 20-11-1949. On 23-3-1949, that is while the tenants were still in occupation of the premises let out to them the Provincial Legislature enacted a measure known as the East Punjab Bent Restriction Act, 1949, Section 13 of which made the following somewhat unusual declaration namely:
'13(1)--A tenant in possession of a building or rented land shall not be evicted therefrom in execution of a decree passed before or after the commencement of this Act or otherwise and whether before or after the termination of the tenancy, except in accordance with the provisions of this section.'
3. The enactment of this measure made it impossible for the landlord to execute the decrees against his tenants and on 22-9-1949 he was reluctantly compelled to issue fresh notices of ejectment to them in accordance with the provisions of Section 13 of the Act of 1949. These notices failed to achieve the object which the landlord had in view and on 28-1-1950 in one case and 6-2-1950 in the other the landlord brought two separate actions for the eviction of his tenants.
While the cases were pending in Court the Governor of the Punjab promulgated an Ordinance known as the East Punjab Urban Rent Restriction (Amendment) Ordinance, 1950, Section 2 of which, added the following words to Sub-section(1) of Section 13 of the Act of 1949 namely:
'Or to pursuance of order made under Section 13, Punjab Urban Rent Restriction Act 1947, as subsequently amended.'
4. This amendment had the effect of reviving and resuscitating all decrees or orders which had been passed under the Act of 1947 and which were lying dormant and in suspended animation ever since the passing of the Act of 1949. On 24-6-1950 the landlord presented two separate applications for the execution of the consent decrees which had been passed in his favour and on 6-11-1950 be formally withdrew the fresh proceedings which had been started by him on 28-1-1950 and 6-2-1950.
The tenants objected to the execution of the decrees on the ground that as the landlord had accepted rent from the tenants after the notice to quit had been issued the acceptance of rent must be deemed to constitute a revocation or waiver of notice of ejectment previously given and the creation of a new relationship of landlord and tenant between the parties. This plea was rejected by the Rent Controller, was accepted by the District Judge and was again rejected by a learned Single Judge of this Court. The tenants are dissatisfied with the order of the learned Single Judge and have preferred an appeal under Clause 10, Letters Patent.
5. Mr. Bahri, who appears for the tenants, contends that although his clients have no normal right to retain possession of the premises which they had agreed to vacate on 29-6-1949 and 20-11-1949, they have acquired a legal right to retain possession thereof (1) because the landlord had accepted rent from them for periods subsequent to the dates on which they should have vacated the premises, and (2) because the tenants continued to remain in uninterrupted possession of the premises for several months following the expiration of notices and even the passing of the decrees.
The acceptance of rent from the tenants, itis contended constitutes a very strong circumstance in support of the contention that the previous decrees were nullified and were replaced byfresh agreements.
6. The question of implied waiver by acceptance of rent subsequent to the expiration of the notice to quit has come up for consideration in a very large number of cases but the Courts are by no means agreed as to whether it constitutes a waiver of the notice to quit. Divergent and mutually inconsistent views have been expressed.
According to one view it constitutes a waiver of the notice and the creation of a new tenancy Kartell v. Blackler, (1920) 2 KB 161 (A); according to another it does not constitute a waiver Davies V. Bristow, (1920) 3 KB 428 (B); Morrison v. Jacobs, (1945) 1 KB 577 (C). According to the third view the question of waiver is one of the intention and acceptance of rent by the landlord after the expiration of a notice is not in Itself a waiver on his part of the notice so given. It is merely a circumstance which must be considered along with other circumstances of the case and from which an intention to waive may or may not be drawn.
In Doe Ex. Dim Cheny v. Batten, (1775) 98 ER 1066 (D), Lord Mansfield observed as follows:
'The fact in this case is that the landlord has received rent eo nomine for a quarter of a year which became due after the time of the demise in the declaration laid. This circumstance, it is insisted, is in fact a declaration on his part that he departs from the notice he had given and is an acknowledgement that he still considers the defendant as his tenant.
But let us suppose the landlord had accepted this rent under terms, or made an express declaration that he did not mean to waive the notice, and that notwithstanding his acceptance or receipt of the rent, he should still insist upon the possession or suppose any fraud or contrivance on the part of the tenant in paying it. Clearly under such circumstances the plaintiff ought not to be barred of his right to recover; but all these are facts which ought to be left to the consideration of the jury.'
This decision represents, in my opinion, a correct enunciation of the law.
7. The history of this litigation makes it quite clear that at no stage of the proceedings did the landlord abandon his right to secure the eviction of his tenants and at no stage did he agree to let them remain as his tenants. He brought two separate actions against them with the object of obtaining possession of the property leased out to them and obtained two consent decrees against them.
There can be no doubt that he would have executed both these decrees had it not been for the fact that on 23-3-1949 the Provincial Legislature decided to enact a measure which declared that no decrees for eviction which were passed either before or after the passing of the Act would be capable of being executed. In view of the restrictions which were placed on the execution of decrees the landlord had no alternative but to Issue fresh notices to the tenants for eviction in accordance with the provisions of East Punjab Act 3 of 1849 and later to present applications for their eviction under the provisions of the said Act.
On the promulgation of Ordinance 6 of 1950 which revived the landlord's right to execute the decrees which had been passed in his favour, he promptly presented applications for the execution of the said decrees and later withdrew the proceedings which had been initiated by him under Act 3 of 1949. At no stage of the proceedings did the landlord evince the slightest possible intention of acknowledging the respondents as his tenants.
On the other hand, there is abundant material on the file to justify the conclusion that he never intended to retain the respondents as his tenants. He was compelled by force of circumstances and by the mandatory provisions of law to permit the tenants to continue in occupation of the premises in question, it may be that he accepted rent from the tenants for the Use and occupation of the premises occupied by them, but that fact alone cannot be regarded as a determinative factor. He was entitled to compensation for the use and occupation of his property even though he was not entitled to rent as such because rent pre-supposes the continuance of the tenancy.
What he received from the tenants was not rent but compensation. Even if he received rent economine even then it seems to me that the receipt of rent did not create a new tenancy, for as pointed out in Kai Khushroo Bezonjee v. Bai Jerbai Hirjibhoy, AIR 1949 PC 124 (E), acceptance of rent by a landlord from a statutory tenant whose lease has already expired, cannot be regarded as evidence of a new agreement of tenancy.
8. After a careful consideration of all the facts and circumstances of the case I entertain no doubt whatever that although the tenants had agreed to vacate the premises in the year 1949 and had suffered consent decrees to be passed against them, they continued to retain possession of the premises for all these years and successfully prevented the landlord from enjoying the fruits of his decrees.
Mr. Bahri requests that as these tenants may have some difficulty in finding alternative accommodation they may perhaps be permitted to stay on in these premises for another two months and in the meantime look for other accommodation. Mr. Gosain, who appears for the landlord, has no objection to this small concession being given.
9. For these reasons I would uphold the order of the learned Single Judge and dismiss the appeals with costs. The tenants will be allowed two months within which to vacate the premises.
Bishan Narain, J.
10. I agree.