H.L. Anand, J.
(1) This judgment would dispose of R.S.A. 35 & 48/73 and F.A.O. 104 & 105/72.
(2) Since before 1956, shop No. 4745, Main Bazar, Pahar Ganj, New Delhi, had been in the occupation of Ram Pershad. By an agreement of November 5, 1956, Ex. P2, Ram Pershad agreed to leave a 3, wide, passage in the shop to put up a partition wall at his cost and to vacate the portion covered by the passage. Ram Pershad failed to carry out the agreement. The tenancy was accordingly terminated by notice of December 14, 1965(Ex. P6) sent to the tenant vide Ex. P7 and received by him vide Ex. P8. This was followed by a suit in 1967 for recovery of rent. Ex. P4. The suit was compromised on April 25, 1967 vide judgment (Ex. P6) in terms of a deed of compromise, Ex, P5, which envisaged a money decree, to be satisfied by Installments continuation of the tenancy and adherence to the earlier agreement regarding surrender of passage. The landlords thereafter accepted rent for the months of May and June 1967 vide receipts Ex. P10 and 11. Ram Pershad died on 22nd July, 1967. Neither the tenant nor his legal representatives carried out the aforesaid agreement. Two suits were, thereforee, filed by the landlords, one for possession and mesne profits while the other, filed subsequently, was for mesne profits for the intervening period. The suits which were resisted on a number of pleas were consolidated and decreed. The legal representatives of Ram Pershad challenged the two decrees in two different appeals both of which were dismissed by the learned Additional District Judge on the ground that no agruments had been addressed on behalf of the appellants in either of the two appeals. This was a sequel to the adjournment sought by the appellants being refused. Subsequently, pleas by certain minor children of Ram Pershad for restoration of the appeals failed on the ground of default in payment of process fee within time for the service of respondents. The judgments and decrees of the First Appellate Court in the two appeals are challenged by the two Second Appeals while the two orders of the First Appellate Court, dismissing the applications for restoration from the subject matter the two F.A.Os.C.Ms. 1688, 74 and 1672/74 in the two Second Appeals and C.M. 1667/74 in F.A.O. 104/72 seek amendment of Memo of parties and were not opposed.
(3) At the hearing of these appeals, considerable controversy centered around the questions as the propriety of dismissal of the appeals by the learned Addl. District Judge after he refused to adjourn the same and as to the legality and propriety of the orders by which the prayer of the minor children for the restoration of the appeals were turned down. It is, however, unnecessary to go into these questions, however, unfortunate may be the manner in which the learned Addl. District Judge sought to deal with these matters, because in the interest of his clients, learned counsel for the landlords suggested that the appellate judgments be ignored and the appellants be heard on all questions that they may like to raise to assail the judgments and decrees of the trial Court instead of accepting the appeals on the ground that there has been no proper hearing. Learned counsel for the appellants had no objection to this course being followed with the result that the parties were heard at length on the various questions of fact and of law arising out of the judgments and decrees of the trial court in the two suits. It must also be mentioned that no grievance was made of the money decree in the two suits and the offensive was confined to the decree for possession.
(4) As the civil miscellaneous applications seeking minor modifications in the memo of parties were not opposed, they are allowed and an oral order to that effect had already been made at the hearing of the appeals and the appeals were heard on that basis.
(5) The only contention urged on behalf of the appellants was that the suit for possession was barred by the provisions of the Rent Act inasmuch as the contractual tenancy in favor of Ram Pershad survived on his death for the benefit of the appellants, his admitted legal representative, on succession and the appellants, thereforee, being tenants in respect of the shop, such a suit was not maintainable in civil court and the only remedy of the landlords was to file an application for eviction of the appellants under the Rent Act. This claim was based on the further connection that notice Ex. P6 by which the tenancy in favor of Ram Pershad had been terminated with effect from November 30, 1965 stood waived by virtue of the suit filed by the landlords against him for recovery of rent in March 1967, Ex. P4, compromise enterred into between the parties on April 25, 1967, Ex. P5 and the unconditional acceptance of rent by the landlords in May and June, 1967, Ex. P. 10 and Ex. 11. It was, thereforee, alleged that the contractual tenancy stood restored before Ram Pershad died on July 22, 1967.
(6) On the other hand it was contended on behalf of the respondent that mere acceptance of rent, subsequent to the notice terminating the tenancy, did not constitute waiver and that waiver must be based on something more than a mere payment of rent from which an intention to restore the tenancy could be inferred. Raliance was placed in support of the proposition on a number of decision of the Supreme Court and a number of High Courts. It was further contended that the earlier suit for recovery of rent, the compromise and the acceptance of rent did not have any such effect. In the alternative it was urged that in any event the tenant had admittedly relinquished his contractual tenancy with regard to a portion of the shop with 3 width all along the length of the shop and was either a trespasser or a statutory tenant in respect of the said portion and the waiver of the notice could not affect his status qua the said portion and the suit for possession in relation to the said portion was, thereforee, maintainable and the decree for possession must be upheld to that extent subject to such rights as the applicant may have in relation to it under the Rent Act.
(7) After hearing the learned counsel for the parties it appears to me that the contention of the appellants with regard to the waiver of notice must prevail. By Ex. P.6 the landlords purported to terminate the tenancy with effect from November 30, 1965. The landlords, however, did not follow it up by a suit for possession but instead filed a suit for recovery of rent with a mandatory injunction requiring the tenant to carry out his obligations under the agreement of November 5, 1956 and to deliver possession of a part of the shop of 3 'width to the landlords, to erect a partition wall at his cost and to forebear from encroaching on the chabutra in front of the shop. An indication from the plaint. Ex. P4, is that the tenancy was considered as subsisting. That apart, the compromise. Ex. P5 and the judgment and decree in terms of the compromise, Ex. P 6, and the unconditional acceptance of rent subsequent thereto vide Ex. P10 and P. 11 leave no manner of doubt that the notice was waived and the tenancy was restored. According to the terms of the compromise, the tenant was to retain possession of part of the shop with 6' width and to leave a passage of 3' width and to erect a wall at his own cost in terms of the earlier agreement. Interestingly enough, the compromise provided that in case the tenant failed to carry out the agreement or to pay the decretal amount by Installments, 'the balance of the decretal amount shall become payable at once.' There was no provision in the compromise with regard to the delivery of possession. It is implicit in the agreement contained in the compromise that the tenancy was restored and the only condition was that the tenant was to comply with the earlier agreement to relinquish his right to a portion of the shop having 3' width. It thus follows that before Ram Pershad died on July 22, 1967, the notice had been waived and the tenancy stood restored.
(8) Learned counsel for the respondents, however, sought to urge that in any event the waiver and the subsequent restoration of the tenancy could not be extended beyond the portion of the shop with 6' width because both in the earlier, agreement of November 5, 1956 and the compromise of April 25, 1967, 3 wide portion of the shop had been treated apart from the 6' wide portion of the shop and that by the agreement of November 5, 1956, the tenant had during his life time relinquished his right to that part of the demised premises and that being so, since that agreement he had ceased to be a tenant in respect of that portion and was in illegal occupation of it. It was, thereforee, argued that neither the notice Ex. P.6 nor the compropmise. Ex. P. 5, and the order of the Court, Ex. P6, nor indeed the acceptance of the rent by the landlords between the date of the compromise and the date of the death of the tenant could, thereforee, bring about any change so far as 3' wide portion of the shop was concerned because at all material time the tenant was not in occupation of that portion in his status as a tenant but subsequent to relinquishment as a mere trespasser and the waiver, thereforee, had no effect on that part of the shop. This contention appears to be sound because the agreement of November 5, 1956 leaves no manner of doubt that the tenant relinquished his right of tenancy to a portion of the shop, agreed to restore that portion to the landlords, to build a partition wall at his cost and to confine the tenancy to the remaining portion. Neither the notice nor its waiver, thereforee, have any impact on the relationship between the tenant and the said portion with 3' width The receipts in respect of rent subsequent the compromise, Ex. P. 10 and Ex. P. 11 clearly mention that the rent relates to shop with 6' width. It must, thereforee, be held that pursuant to the agreement of November 5, 1956, the tenancy with regard to 3' wide portion of the shop was relinquished, the notice, Ex. P. 6 had the effect of terminating the tenancy in respect of the remaining portion of the shop and the said notice stood waived by the subsequent conduct of the landlords with the result that the tenancy of the tenant with regard to the portion of the shop with 6' width stood restored. It thereforee, follows that w,hen Ram Pershad died on July 22, 1967, he was a contractual tenant with regard to a portion of the shop with 6' width with a contractual obligation to restore the remaining portion of the shop to the landlords after erecting a partition wall at his cost.
(9) It is true that on the relinquisnment of the tenancy in respect of a portion. Ram Pershad could still not be evicted during his life time from such a portion by virtue of the statutory protection available to him by sub-section 4 of Section 14 of the Rent Act. The statutory protection was, however, personal to him and could not be inherited and, thereforee, died with him except in so far as it could be kept alive by virtue of the provisions of the Delhi Rent Control (Amendment) Ordinance, 1975. This Ordinance, however, could not be of any avail to the appellant in relation to a non-residential premises, even though they have succeeded to the estate of Ram Pershad, because the amendment brought about by Section 3 of the Ordinance in the definition of the expression 'Tenant' in the Rent Act extends the benefit of the statutory protection to the successors on the death of the tenant only if they 'had been ordinarily living in the premises with' the tenant 'as a member or members of his family up to the date of his death'. The statutory protection enjoyed by the tenant, thereforee, did not extend to his successors after his death in relation to a commercial premises because the successors could not possibly have been 'ordinarily living' in such a premises with or without the tenant. The extension of the statutory protection has, thereforee, been confined to residential premises and perhaps, to residential-cum-commercial premises but does not, unfortunately, ensure for the purpose of a commercial premises.
(10) The result would be that while a part of the suit with regard to possession of the portion of the shop, which was 6' wide was not maintainable by virtue of the provisions of the Rent Control Act, the suit in so far as it related to the possession of the remaining portion, being a suit based on the allegation that the tenant and his legal heirs were in illegal occupation of it as trespassers, was maintainable.
(11) In the result, the appellants succeed in part. The money decrees are confirmed. The decree for possession would be modified so as to operate only in relation to a portion of the shop with 3' width all along the length and shown in blue in the plan with the plaint in Suit No. 472/68. The suit with regard to the possession of the remaining shop having a width of 6' would stand dismissed. In the view that I have taken in the R.S. As. both the F.A. 0s. have become infructuous and are dismissed.
(12) In the peculiar circumstances of the case, there would be no costs. The appellants would have three month's time to deliver the vacant possession of the portion of the shop with 3' width after erecting a partition wall at their cost.