1. This is tenant's petition for revision against the order of the Appellate Authority affirming on appeal the decision of the Rent Controller ordering eviction of the tenant.
2. The Rent Controller ordered the eviction on the ground that the landlord required the premises for his personal use. The decision of the Rent Controller on this ground was affirmed on appeal by the Appellate Authority. Besides this there was another controversy both before the Rent Controller and the Appellate Authority, namely, that there was no valid notice under Section 106 of the Transfer of Property Act (hereinafter called the Act), and, therefore, the landlord's application was liable to dismissal.
3. So far as the facts go there is no dispute. A notice under Section 106 of the Act was duly issued by the landlord. After that notice an application for ejectment of the tenant was made on ground of personal necessity. That application was got dismissed by the landlord. Thereafter, the landlord waited for a year and five months and then filed the present application for eviction of the tenant on the ground of personal necessity and also that the tenant had violated the terms of the lease. The tenant contested the application and also took the plea that there being no valid notice under S. 106 of the Act, the application for eviction was bound to fail. The Rent Controller observed that in terms of the lease notice under Section 106 of the Act was not required. One of the terms of the lease was that if there was a breach of any of the terms of the lease, it will not be necessary to give notice under Section 106 of the Act. The Rent Controller found that the landlord required the premises for his personal use and, therefore ordered eviction. On appeal, the point of notice was again agitated. The Appellate Authority did not proceed to decide the point of notice on the same basis on which the Rent Controller proceeded to decide it. According to the Rent Controller the original notice was sufficient because the tenancy had been terminated by that notice. This view in my opinion would be sound in case that notice was not waived. After a valid notice and it has not been waived, the contractual tenancy stands terminated and what emerges thereafter is merely a statutory tenancy as observed by this Court in Bhaiya Ram Hargo Lal v. Mahavir Parshad Murari Lal. AIR 1969 Punj & Har 110 (FB), and in the case of a statutory tenancy no notice is required. However, the Appellate Authority proceeded on the basis that the tenant had failed to raise the plea that the landlord had waived the earlier notice and in view of the earlier notice it was not necessary to issue a fresh notice. As the Appellate Authority affirmed the decision of the Rent Controller on the ground the appeal was dismissed. The tenant being dissatisfied has come up in revision to this Court.
4. Mr. Gujral, learned counsel for the tenant has urged that there was waiver of the previous notice and therefore, the ground for holding that their previous notice was valid notice under Section 106 is untenable. Mr. Gujral has drawn my attention to the decision of Supreme Court in Tyabali Jaffarbhai v. M/s. Asha and Co. 1970 Ren CR 150=(AIR 1971 SC 102). In this case, the landlord gave a notice in the first instance and thereafter a second notice was issued demanding payment of arrears. The landlord then claimed ejectment on the ground of default of payment of arrears of rent and compensation for use and occupation. The second notice was held by their Lordships of the Supreme Court to be invalid. Therefore, recourse was made to the first notice. Their Lordships observed that the first notice had been waived by the second notice and in this connection the following observations were made:--
'It seems to us that on the facts which have been established the landlord was bound to fail. It is abundantly clear that he had in the second notice, dated October 18, 1957, treated the tenancy as subsisting and not only the respondent was described as a monthly tenant but also in the plaint, even after the amendment had been allowed rent was claimed upto November 1957; thereafter the amount due was described as compensation for use and occupation. The plaintiff was thus fully alive to the distinction between rent and damages for use and occupation and it cannot be said that he had abandoned the second notice and asked for the same to be treated as honest or that he had relied solely on the first notice dated June 13, 1956. Under Section 113 of the Transfer of Property Act 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. Illustration (b) is in the following terms:-- (b) A, the lessor, gives B, the lessee, notice to quit the property leased. The notice expires and B remains in possession. A gives to B as lessee a second notice to quit. The first notice is waived.
If only the language of the illustration were to be considered as soon as the second notice was given the first notice would stand waived. Counsel for the appellant has relied on the observation of Denning J. (as he then was) in Lowenthal v. Vanhoute 1947, KB 342, that where a tenancy is determined by a notice to quit it is not revived by anything short of a new tenancy and in order to create new tenancy and in order to create a new tenancy and in order to create a new tenancy there must be an express or implied agreement to that effect and further that a subsequent notice to quit is of no effect unless with other circumstances, it is the basis for inferring an intention to create a new tenancy after the expiration of the first. The Privy Council in Harihar Banerji v. Ramasashi Roy 45 Ind App 222=(AIR 1918 PC 102), had said that,
'the principles governing a notice to quit under Section 106 of the Transfer of Property Act were the same In England as well as in India. For the purpose of the present case, it is wholly unnecessary to decide whether for bringing about a waiver under S. 113 of the Transfer of Property Act a new tenancy by an express or implied agreement must come into existence. All that need be observed is that Section 113 in terms does not appear to indicate any such requirement and all that has to be seen is whether any act has been proved on the part of the present appellant which shows an intention to treat the lease as subsisting provided there is an express or implied consent of the person to whom the notice is given.'
5. In the present case the contention of Mr. Gujral is that if we look at the second application it will appear from it that the first notice was waived. It is not the landlord's case in the present application that contractual tenancy had come to an end. In fact, in the application he is suing on the basis of contractual tenancy. Applying the ratio of the Supreme Court decision to the facts of the present case, it is clear that by his own conduct the landlord waived the first notice, and if the first notice is ruled out then there is no notice under section 106 and on that score the petition would fail.
6. However this does not end the matter. The learned counsel for the respondent contends that the Rent Controller found that a term of the contract of the lease had been violated and as provided in it, if a term is violated notice under Section 106 would not be required. Section 106 of the Act opens with the phrase: 'In the absence of a contract of local law or usage to the contrary.' Therefore, in the present case, there is a contract to the contrary as envisaged in Section 106 of the Transfer of Property Act provided it is established that there is a breach of the terms of the lease. So far as the Rent Controller is concerned, he found for the landlord on this matter, This finding has not been examined by the Appellate Authority,. In this situation it is necessary to remit the case to the Appellate Authority to examine this finding. If the Appellate Authority affirms this finding then the order of eviction has to stay because there is a concurrent decision so far as the ground for eviction is concerned, namely that the landlord requires the premises for his personal use, and the only ground on which the present petition is sought to be sustained is that there is no valid notice under Section 106 of the Act.
7. For the reasons recorded above, I allow this petition, quash the order of the Appellate Authority only to the extent indicated above, and remit the case to the Authority for decision of the point indicated above, The parties are directed to appear before the Appellate Authority on 18th October 1972.
8. The costs will be costs in the cause.
9. Petition allowed.