1. The premises belonging to the appellant-landlord were originally let out to the respondent-tenant of Rs.94.50 per month. The tenant was in arrears of rent and the landlord gave the first notice of demand under proviso (a) to sub-section (1) of S. 14 of the Delhi Rent Control Act, 1958 and then filed a petition for eviction of the tenant on the ground that the arrears were not paid by the tenant within two months after the notice of demand. After the petition was filed, the Rent Controller made an order under Section 15(1) of the said Act. The tenant paid the arrears, and thereforee, this first petition filed by the landlord for the eviction of the tenant was dismissed.
2. Subsequently a portion of the premises was demolished and, thereforee, for two months, the tenant paid the rent of Rs. 84.50 per month only to the landlord. The reconstruction of the demolished portion enlarged the built up area of the premises and the tenant again started paying rent of Rs. 94.50 per month to the landlord. The tenant was again in arrears and, thereforee, the landlord gave the following notice (Exhibit AW. 5/6) on 9-10-1964:-
'Under instructions from Shri. Raj Krishen Jain son of Lala Rangi Lal Jain of 1 Daryagunj, Delhi-6 I hereby require you to pay him or to me on his behalf the sum of Rs. 641.50 (Rs. Six Hundred and Fortyone Paise fifty) only due from you on account of rent from 1-2-1964 to 30-9-1964 and Rs. 94.50 per month for premises leased to you in House No. X/4242/30 to 32 in 2 Daryaganju, Delhi. Please note that if you do not pay this amount within two months from the date of service of this notice, I have instructions to file a suit in court against you for the recovery of the same and your ejectment from the same and your ejectment from the above premises and you will be further liable for my client's costs and also interest at the rat of 12% P.A. until realization.'
As no payment was made, the second petition for eviction was filed on 31-12-1964. During the pendency of this petition, the Supreme Court decision is Manujendra Dutta v. Purnendu Prosad Roy Chowdhury, : 1SCR475 was delivered making it known that the Rent Control Acts were not a self-contained code but had to be read with the Transfer of Property Act and no petition for eviction could be filed unless the contractual tenancy was terminated by a notice. Not knowing whether the notice dated 9-10-1964 would be regarded as a composite notice of demand under Section 14(1)(a) of the Delhi Rent Control Act, 1958 as also a reasonable notice according to the principle enshrined in Section 106 of the Transfer of Property Act, the landlord gave another notice to quit to the tenant on 25-10-1967 (RW. 12/1) as follows:-
'Under instructions from my client Shri Raj Krishen Jain son of Shri. Rangi Lal Jain of 1 Daryagunj, I writ to you as under:-
That you have been occupying a portion of premises bearing Municipal House Tax No. XI/4242/30 to 32 in 2 Daryagunj, Delhi as a tenant under my aforesaid client at Rs.94.50 p.m. The aforesaid client at Rs. 94.50 p.m. The tenancy being according to each English Calendar month and rent falls due on the last day of every month.
That a petition for your eviction from the aforesaid premises is pending in the Court of Shri. S.R. Goel, Additional Rent Controller, Delhi on the ground of second default in the payment of rent and the premises are required for reconstruction purposes.
That a sum of Rs.4158/- has become due from you on account of arrears of rent from 1-2-1964 to 30-9-1967 which you have not paid in spite of repeated demands.
That my client also requires the aforesaid premises on the ground of his bona fide personal requirement and that of the members of his family.
That my client does not wish to keep you as his tenant and he terminates your tenancy by the end of November 1967 tenancy month.
Accordingly, I call upon you to vacate the aforesaid premises and surrender peaceful vacant possession to my aforesaid client by 30th November 1967 failing which my client will be obliged to take eviction proceedings against you at your risk and cost.
This notice is without prejudice to my client's rights for your ejectment on the grounds alleged in the petition already pending in court and referred to above'
3. Among the grounds on which the tenant resisted the eviction petition, the following alone are now relevant inasmuch as the learned counsel for the appellant does not press for the eviction of the tenant on the ground that the landlord wants the premises bona fide for reconstruction:-
1. The contractual tenancy, not having been terminated prior to the filling of the second eviction petition, the eviction petition was liable to be dismissed on this ground alone.
2. Even if the notice dated 9-10-1964 is regarded as a composite notice of demand as also a notice to quit sufficient to terminate the contractual tenancy prior to the filing of the eviction petition, this notice to quit was waived by the landlord by the subsequent acceptance of rent arrears and by giving the second notice to quit on 25-10-1967 and
3. The tenant paid rent for three years in October 1967 counting backwards, i.e. from October 1964 to October 1967 as the rest of the rent arrears ware barred by limitation. As the premises which formed the subject-matter of the first eviction petition were different from the premises which formed the subject-matter of the second eviction petition (in view of the addition by way of reconstruction made in the intervening period) the tenant was entitled to the benefit of sub-section (2) of S. 14 without attracting the proviso thereof to get the eviction petition dismissed.
4. The Controller held that the tenant was not entitled to the benefit of Section 15(1) and S. 14(2) of the Delhi Rent Control Act, 1958 inasmuch as the first eviction petition had been already dismissed when the tenant had got the benefit of these provisions. He also held that the identity of the premises was not changed by the addition. He further held that the tenant had failed to raise the bar of the failure of the landlord to give a notice to quit during the first eviction proceeding in 1960 though he might and ought to have raised it. The tenant was, thereforee, barred by constructive rest judicata on the principle of Explanationn Iv to section 11, Civil P.C. from raising the plea of the notice in the second eviction proceedings. Lastly, he had that the acceptance of rent by the landlord did not amount to a waiver of the notice to quit or the creation of a fresh tenancy in favor of the tenant by the landlord.
5. The Rent Control Tribunal generally agreed with the Controller but thought that the notice dated 25-10-1967 given by the landlord to the tenant amounted to a waiver of the notice to quit dated 9-10-1964 within the meaning of Illustration (b) to Section 113 of the Transfer of Property Act. He, thereforee reversed the decision of the Controller and dismissed the eviction petition. Hence this second appeal by the landlord.
6. Before the landlord can succeed in this appeal, he has to rebut the three contentions advanced by the tenant in the Courts below and repeated before me. I shall examine them in the order in which they are stated above.
7. 1. The tenancy in this case originated prior to 1st December 1962 when Section 106 of the Transfer of Property Act first became applicable to the Union territory of Delhi. It did not, thereforee, apply to this tenancy in terms. On the principle of that section, only a reasonable notice had to be given by the landlord to the tenant to terminate the contractual tenancy. The two requisites of a reasonable notices are (1) it should be for a minimum period of fifteen days and (2) it should unequivocally declare the intention of the landlord to terminate the tenancy. Both these requirements are satisfied by the notice dated 9-10-1964. It called upon the tenant to pay the arrears of rent within two months and stated that a suit for eviction would be filed against him thereafter, It, thereforee, gave more than the minimum period of fifteen days to the tenant to vacate the premises. It is true, that it did not use the language of Section 106 that on the failure of the tenant to pay the rent, the tenancy would be terminated. Nevertheless, it clearly declared that proceedings would be taken against the tenant to evict him on his failure to pay the rent In Mangilal v. Suganchand Rathi, : 5SCR239 the first notice demanding the arrears of rent and threatening to file a suit for eviction if the rent was not paid. The Supreme Court observed as follows about the character of the said notice: 'The High Court has, however, treated this as a composite notice under S. 4 (1) of the Accommodation Act and Section 106 of the Transfer of Property Act and in our opinion rightly. It has to be observed that, the plaintiffs, after requiring the defendant to pay the rental arrears due up to the end of March 1959 within one month from the date of service of the notice, proceeded to say 'failing which suit for ejectment will be filed'. These recitals clearly indicate the intention of the landlord to terminate the tenancy of the defendant under the relevant provisions of both the Acts'.
The notice dated 9-10-1964 in the present case, on the same reasoning, was also a composite notice both under Section 14(1)(a) of the Delhi Rent Control Act, 1958 and under the principle of Section 106 of the Transfer of Property Act and was valid for both the purposes. The contractual tenancy was duly terminated by this notice before the second eviction petition was filed on 31-12-1964.
8. Further, the decision cited in Bhaiya Punjalal Bhagwandin v. Dave Bhagwatprasad Prabhuprasad, : 3SCR312 by the Supreme Court shows that High Court decisions existed from 1953 onwards taking the view that termination of the contractual tenancy was necessary before an eviction petition could be filed before the Rent Controller. The tenant might and ought to have taken thereforee the plead that the first eviction petition filed by the landlord in 1960 was not tenable inasmuch as the contractual tenancy had not been terminated by the landlord before filing the eviction petition. As the tenant did not raise this plea in the first eviction case between the same parties though he might and ought to have raised it, he is barred by the principle of rest judicata from raising that plea again in the second eviction proceedings. It is well-known that the principle or rest judicata is not confined to Section 11 of the Civil P.C. In Yoginder Pal v. Competent Authority 1969 Ren Cr 1073 (Delhi) I had occasion to hold that it applied to rent control proceedings. In Manmohan Lal v. B.D. Gupta, 66 Pun Lr 1005 : AIR 1964 P&H; 408 the principle of constructive rest judicata was by Falshaw, C.J. and Mehar Singh, J. of the Punjab High Court.
9. Was the first notice dated 9-10-1964 waived by the landlord firstly by accepting the arrears of rent and secondly by giving the second notice to quit on 25-10-1967? The effect of such a waiver under Section 113 of the Transfer of Property act would be that the same tenancy which the landlord purported to terminate by the notice dated 9-10-1964 would continue inasmuch as the only notice which purported to terminate it is waiver. The right created in favor of the landlord by the termination of the tenancy was for this exclusive benefit. He could thereforee waive the said right and restore the relationship of landlord and tenant between the parties as it stood before the notice dated 9-10-1964 was given. To constitute such a waiver the requirements of Section 113 of the Transfer of Property Act have to be satisfied. Section 113 is as follows:-
'A notice given under Section 111, Cl (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.
(a) A, the Lesser, gives B, the lessee, notice to quit the property leased. The notice expires. B tenders, and A accepts, rent which has become due in respect of the property since the expiration of the notice. The notice is waived.
(b) A, the Lesser 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'
Section 113 applies only when a periodical tenancy is terminated by a notice to quit under Section 111(b) as it was in the present case by notice to quit under Section 111(h) as it was in the present case by notice dated 9-10-1964. The notice is waived only with the express or implied consent of the tenant by any act of the landlord showing an intention to treat the lease as subsisting. In other words, both the landlord and the tenant must agree to treat the lease as subsisting. The provisions of Section 113 apply when a periodical tenancy is terminated by a notice to quit and the waiver of the notice to quit results in the restoration of the old tenancy. Section 116 of the Transfer of Property Act, on the other hand, applies when a lease is determined either by efflux of time of by a notice to quit. If the landlord assents to the continuing in possession, then 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, Here also, the landlord and the tenant both must agree in spite of the determination of the tenancy a new lease between them should be created.
The principle of both Sections 113 and 116 is, thereforee, the same, namely, an agreement between the landlord and the tenant to continue the tenancy. The only difference is that under Section 113 the old tenancy continues to substitute while under Section 116 the tenancy is renewed on the same terms. The crucial question under both the sections is whether the landlord has consented to the continuance of the tenancy in favor of the tenant. The constant of the landlord is mainly a question of fact. In the absence of evidence to the contrary such consent would be inferred under Section 113 from the conduct of the landlord. Two illustrations of such conduct given under Section 113 are (a) the acceptance of rent by the landlord after the termination of the tenancy and (b) the giving of a second notice to quit after the first had expired. It is important to remember that these illustrations only raise presumptions of law in the absence of evidence to the contrary. These illustrations do not raise irrebuttable or conclusive presumptions of law, as the learned Rent Control Tribunal almost seems to have thought.
It is not as if the effect of acceptance of rent or the giving of a second notice to quit is to waive the first notice to quit always and invariably. On the other hand, such conduct on the part of the landlord would be normally good evidence of his intention to waive the burden of proof would be on the landlord to show that despite such conduct he did not intend to waive the notice to quit. The question to be considered in each case is whether such conduct stands by itself and give rise to the presumption of waiver or whether such conduct is accompanied by other acts which prevent us from raising the presumption of fact about the waiver of the notice to quit.
10. The acceptance of the rent by the landlord does not stand alone. The contractual tenancy of the tenant had been determined by the landlord by the notice dated 9-10-1964. But she had been determined by the landlord by the notice dated 9-10-1964. But the landlord was still unable to evict the tenant unless and until he proved that he was entitled to do so under any of the provisos to Section 14(1) of the Delhi Rent Control Act, 1958. In view of this hurdle placed in the way of the landlord in ejecting the tenant, the landlord has to accept rent from the tenant as the landlord is not entitled to evit the tenant merely by virtue of the termination of the contractual tenancy. In those cases in which the tenant is not protected by the rent control legislation, a landlord is entitled to evict the tenant merely by giving a notice to quit. After giving such notice to such a tenant, the landlord cannot normally claim to accept rent from the tenant without giving rise to the presumption of fact that be thereby waives the notice to quit. Of course it is still open to the landlord to explain that he accepted the rent by way of damages for use and occupation and without waving the notice to quit. If the conduct of the landlord makes it clear that the rent was not accepted with the intention to treat the lease as subsisting within the meaning of Section 113 the rebuttable presumption of fact arising there under can be rebutted by the landlord.
11. In those cases in which a tenant is protected by rent control legislation, the law itself prevents the presumption of waiver arising under Section 113. For, the landlord is not expected to suffer and allow the tenant to continue in possession without payment of any rent or damages for use and occupation of the premises to the landlord. It would be unfair to expect that the landlord should not accept any rent or damages for use and occupation of the premises even though the landlord has no right to evict the tenant by merely terminating the contractual tenancy. The acceptance of the rent by the landlord from the tenant whose contractual tenancy is terminated but who, as a statutory tenant, is protected by rent control legislation, is, thereforee, explained by the inability of the landlord to evict the tenant under the ordinary law. Such acceptance of rent does not thereforee, show an intention on the part of the landlord to treat as subsisting.
For the same reasons, the Federal Court in Kai Khushroo Bezonjee Capadia v. Bai Jerbai Hirjibhoy Warden , and the Supreme Court in Ganga Dutt Murarka v. Kartik Chandra Das : 3SCR813 held that the acceptance of rent by the landlord did not constitute his assent to the renewal of the tenancy in favor of the tenant under Section 116 of the Transfer of Property Act. The ratio of those decisions is equally appraising under Section 113 of the Transfer of Property Act as the principle underlying Ss. 116 and 113 is the same namely, the assent of the landlord alone can revive or renew the tenancy after it is once terminated.
12. The second notice to quit dated 25-10-1967 was given by the landlord after the eviction petition had already been filed by him against the tenant and while he was still pursing the same against the tenant. The principles for determining whether in a particular case a second notice to quit operates as a waiver of a previous notice to quit are the same as those discussed above relating to such waiver by the acceptance of rent by the landlord. The waiver of a notice to quit may come about by any conduct of the landlord showing an intention to treat the least as subsisting. Such conduct is not confined to acceptance of rent or giving of a second notice. It may consist, for instance, in an agreement between the parties without either acceptance of rent or giving of a second notice to quit. The illustrations to Section 113 only exemplify the type of conduct on the part of the landlord which would amount to waiver. The second notice to quit given by the landlord on 25-10-1967 cannot lead to the inference that the landlord consented to treat the lease as subsisting inasmuch as the landlord had already applied for the eviction of the tenant and continued to pursue the application against the tenant.
It is only if illustration (b) to Section 113 is regard as raising an irrebuttable presumption of law of waiver in favor of the landlord that the second notice in the present case can heave such effect. But as already stated above, there is no such conclusive presumption. The presumption of fact raised by the second notice to quit is rebutted by the fact that the landlord was overtly acting to throw the tenant out of the premises. How can it be said then that in giving the second quit notice the landlord was agreeing with the tenant to treat the lease as subsisting? Though there is a conflict of High Court decisions as to quit after the eviction proceedings are filed can mount to a waiver under Section 113 of the Transfer of Property Act or not, the decision of the Supreme Court in Ganga Dutt Muraka's case, : 3SCR813 The notice given in that case on 10-10-1950 after the tenancy had already come to an end called upon the tenant 'to premises occupied'. It described the tenant as a 'monthly tenant' It was thereforee, argued for the tenant under Section 116 of the Transfer of Property Act it had the effect of the assets of the landlord to the continuance of the tenant in possession. The Supreme Court however, negatived the argument in the following words:
'It is true that in the notice dated October 10, 1950 the appellant is descried as 'monthly tenant' but, that is not indicative of conduct justifying an inference that a fresh contractual in the meaning of the West Bengal Premises Rent Control Act, 1950 the appellant was a 'tenant' and by calling the appellant a tenant the respondents did not evince an intention to treat him as a contractual tenant. The use of the adjective 'monthly' also was not indicative of a contractual relation. The tenancy of the appellant was determined by efflux of time and subsequent occupation by him was not in pursuance of any contract express or implied, but was by virtue of the protection given by the successive statutes. This occupation did not confer any rights upon the appellant and was not required to be determined by a notice prescribed by Section 106 of the Transfer of Property Act.'
13. The contrary decisions in Manicklal Dey Chaudhuri v. Kadambini Dassi Air 1926 Cal 763, S. Hari Singh v. Narain Das Air 1945 Lah 175, Bapurao v. Waman, : AIR1963Bom179 and Ram Dayal v. Jawala Prasad Air 1966 All 623 are distinguishable for two reasons, namely:-
(1) They do not take into consideration that the Illustrations to Section 113 raise only rebuttable presumptions of fact; and
(2) They do not consider the Supreme Court decision in Ganga Dutt Murarka's case , : 3SCR813 .
14. The last paragraph of the notice dated 25-10-1967 given by the counsel of the landlord was as follows:
'This notice is without prejudice to my client's rights for your ejectment on the ground alleged in the petition already pending in court and referred to above.'
This is significant to show that the landlord insisted on the eviction of the tenant even while giving the notice. Such express insistence in the notice itself makes it impossible to infer from the notice that the landlord was thereby agreeing to waive the previous notice to quit and to treat the tenancy as subsisting. I, thereforee, find that the notice dated 9-10-1964 was not waived by the landlord when he accepted arrears of rent subsequently and when he gave the second notice as of no effect as it was given during the pendency of the eviction proceedings and it did not result in the waiver of the first notice to quit.
14-A. Admittedly the tenant did not pay the arrears of rent from February 1964 to October 1964 on the ground that they were barred by limitation. The order by the Controller under S. 15(1) related to all the arrears of rent. As the tenant did not pay all the arrears, it cannot be said that the tenant made payment or deposit as required by sub-section (1) of S. 15. The tenant cannot, thereforee, seek the benefit of sub-section (2) of S. 14 and pray that no order for the recovery of possession of the premises be made in favor of the landlord under Section 14(1)(a) of the Delhi Rent Control Act. Secondly the tenant has admittedly enjoyed the benefit of sub-section (2) of S. 14 of the Delhi Rent Control Act, 1958 by getting the first eviction proceeding of the landlord dismissed on payment of rent. the proviso to sub-section (2) of S. 14 prohibits the tenant from seeking the same benefit in a subsequent eviction proceeding. The tenant in the present case is not, thereforee, entitled to get the second eviction proceedings dismissed on the ground of payment of rent by him to the landlord.
15. Learned counsel for the respondent-tenant argued that the premises in the second eviction proceedings were different from those in the first eviction proceedings. Both the learned lower courts have arrived at a concurrent finding of fact and law that the premises were the same. An addition of some more built up area to the premises by the landlord does not change the identity of the premises. Moreover the contract of tenancy is formed primarily by the parties, the terms of tenancy and the rent. All these remained the same before and after the addition of the premises. It cannot be said, thereforee, that the contract of tenancy before the addition was different from the one after the addition. The proviso to sub-sec (2) of S. 14 thereforee, operates squarely against the tenant. I find so, Section 62 of the Contract Act has no application to the present case inasmuch as there was no agreement between the parties that the addition to the premises should result in a new contract of tenancy.
16. For the above reasons, the decision of the Rent Control Tribunal is set aside and that the Rent Controller is restored. The appeal is allowed in the above terms but without any order as to costs. Time to vacate the premises is granted to the respondent for three months on the condition that he pays rent arrears up-to-date and continues to pay the monthly rent till May 1971.
17. Appeal allowed.