H.R. Khanna, C.J.
(1) This second appeal under Section 39 of the Delhi Rent Control Act by Hardit Singh Oberoi is directed against the order of the learned Rent Control Tribunal affirming on appeal the decision of the Additional Controller whereby an application filed by the tenant-appellant to the effect that the landlord had waived the right to evict the tenant, was dismissed. When the appeal came up for hearing before Tatachari. J., the learned Judge expressed the view that because of the important question involved in the case it should be heard by a Division Bench.
(2) The brief facts of the case are that the appellant was a tenant in the premises in dispute situated in Connaught Circus, New Delhi, under Daulat Ram on a monthly rent of Rs. 109.00. Daulat Ram filed an application under Section 14 of the Delhi Rent Control Act for the ejectment of the appellant on the allegations that the latter had made alterations and additions in the premises and had caused substantial damage. It was further stated that those alterations and changes were in violation of the terms of the lease of the site on which the premises in dispute had been constructed. According to the landlord, the tenant-appellant had not removed the additions and set right the alterations in spite of notice served on him. Ground was also taken that the tenant was liable to be ejected, because he had sublet, assigned or otherwise parted with possession of these premises in favor of two other persons without the written consent of the landlord.
(3) The tenant-appellant admitted the tenancy and the rate of rent. He, however, controverter the grounds set up by the landlord for ejectment. During the pendency of the ejectment application, Daulat Ram died on January 7, 1963. His wife and children were then imp leaded as his legal representatives.
(4) On June 5, 1963, during the pendency of the ejectment proceedings, the legal representatives of Daulat Ram received rent from the tenant-appellant for the period up to May 31, 1963, by means of three cheques. On September 17, 1963, the appellant made an application that the ejectment application filed against him be dismissed as the legal representatives of the landlord had received the rent and had thereby waived the right to eject him from the premises in dispute. This application was contested by the respondents. The Additional Controller dismissed the above application of the tenant. On appeal, as stated above, the order of the Additional Controller in this respect was affirmed by the learned Rent Control Tribunal.
(5) We have heard Mr. Gurcharan Singh on behalf of the tenantappellant and Mr. Juneja on behalf of the respondents, and are of the view that there has been no waiver of the right to eject the appellant by the acceptance of the rent of the premises in dispute by the respondents.
(6) Mr. Gurcharan Singh has at the outset argued that there has been a novation of the original contract of lease between the parties. Reference in this connection has been made to sectioin 62 of the Indian Contract Act according to which, if the parties to a contract agree to substitute a new contract for it or to rescind or alter it, the original contract need not be performed. In this respect we are of the view that the question as to whether there has been agreement between the parties to substitute a new contract for the original contract or to rescind or alter it, is essentially one of fact. As this question was not agitated before the Additional Controller and the Tribunal we are not prepared to allow it to be raised for the first time in second appeal.
(7) It has then been argued that the appellant has acquired the status of a tenant holding over because of the acceptance of rent from him by the respondents. Reference in this context is made to Section 116 of the Transfer of Property Act which provides that if a lessee or under-lessee of property remains in possession thereof after the determination of the lease granted' to the lessee, and the Lesser or his legal representative accepts rent from the lessee or under-lessee, or otherwise assents to his continuing in possession, 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. The underlying assumption of this argument is that the appellant remained in possession of the premises in dispute after the determination of the lease granted to him. The appellant as such should be held to be a statutory tenant because he was occupying the premises in dispute after the determination of the lease on account of the protection afforded to him by the rent control legislation. The acceptance of rent from such a tenant cannot confer on him the rights of a tenant holding over under Section 116 of the Transfer of Property Act. The legal position in this respect has been discussed by their Lordships of the Supreme Court in the case of Ganga Dutt Murarka v. Kartik Chandra Das and others, : 3SCR813 . Shah, J., speaking for the Court, observed :
'(5)Under the Calcutta Rent Ordinance, 1946. and the subsequent legislation which culminated in the West Bengal Premises Rent Control Act, 1950, in the expression 'tenant' was included any person who continued in possession after termination of his tenancy. Section 12 of the West Bengal Premises Rent Control Act. 1950, expressly protects a tenant whose lease has expired. By the Rent Restriction Statutes at the material time, statutory immunity-was granted to the appellant against eviction, and acceptance of the amounts from him which were equivalent to rent after the contractual tenancy had expired or which were fixed as standard rent did not amount to acceptance of rent from a lessee within the meaning of Section 116, Transfer of Property Act. Failure to take action which was consequent upon a statutory prohibition imposed upon the courts and not the result of any voluntray conduct on the part of the appellant did not also amount to 'otherwise assenting to the lessee continuing in possession.'
(8) It was further observed :
'APARTfrom an express contract, conduct of the parties may undoubtedly justify an inreference that after determination of the contractual tenancy, the landlord had entered into 'a fresh contract with the tenant, but whether the conduct justifies such as inference must always depend upon the facts of each case. Occupation of premises by a tenant whose tenancy is determined is by virtue of the protection granted by the statute and not because of any right arising from the contract which is determined. The statute protects his possession so long as the conditions which justify a Lesser in obtaining an order of eviction against him do not exist. Once the prohibition against the exercise of jurisdiction y the court is removed, the right to obtain possession by the Lesser under the ordinary law springs into action and the exercise of the Lesser's right to evict the tenant will not unless the statute provides otherwise, be conditioned. (6) The High Court was in our judgment right in holding that by merely accepting rent from the appellant and by failing to take action against him, the appellant did not acquire the rights of a tenant holding over.'
(9) We may observe that the present is not a case in which a notice to quit has been served and the rent has been accepted by the landlord for the period subsequent to the expiry of the notice thereby causing waiver of the notice to quit. The present is also not a case wherein a notice for determination of the lease on account of forfeiture was given under clause (g) of Section 111 of the Transfer of Property Act. Even if it may be assumed that the notice, which was given by Daulat Ram before the institution of the present preceedings, fell within the ambit of clause (g) of Section 111 of the Transfer of Property Act, the second proviso to Section 112 of that Act makes it clear that where rent is received during the pendency of the suit to eject the lessee on the ground of forfeiture, the acceptance of such rent would not amount to waiver. Section 112 of the said Act reads as under :-
'112.A forfeiture under section 111, clause (g), is waived by acceptance of rent which has become due since the forfeiture, or by distress for such rent, or by any other act on the part of the Lesser showing an intention to treat the lease as subsisting: Provided that the Lesser is aware that the forfeiture has been incurred: Provided also that, where rent is accepted after the institution of a suit to eject the lessee on the ground of forfeiture, such acceptance is not a waiver.'
(10) It is, thereforee, manifest that the receipt of rent which was in the present case during the pendency of the proceedings before the Additional Controller, would not entail consequences which might otherwise have ensued under the above provision if the rant had been accepted earlier.
(11) Reference has been made on behalf of the appellant to the case of Kai Khushroo Bezoniee Capadia v. Bai Jerbai Hirjibhoy Warden and another, Air 1949 FR124. In the case A let his house to B. B sublet the same to C. After the expiry of the lease C did not give vacant possession to A but comtinued to remian in possession and sent a certain amount by cheque to A as rent for the period. A at first refused to accept the cheque but subsequently he encased the same. It was held that the acceptance of the rent by A from created a monthly tenancy under Section 116 of the Transfer of Property Act. Perusal of the facts of that case would go to show that the acceptance of rent in that case was in November, 1942, while the suit for ejectment was brought by the plaintiff on December 7, 1945, long after the receipt of the rent. In the present case the rent was received during the pendency of ejectment proceeding. As such, the above case can be of no help to the appellant. Further Mukherjea, J., who spoke for the majority in the above case, observed :
'................................. it may be pointed out that in cases of tenancies relating to dwelling houses to which the Rent Restriction Acts apply, the tenant may enjoy a statutory immunity from eviction even after the lease has expired. The landlord cannot eject him except on specified grounds mentioned in the Acts themselves. In such circumstances, acceptance of rent by the landlord from a statutory tenant, whose lease has already expired, could not be regarded as evidence of a new agreement of tenancy and it would not be open to such a tenant to urge, by way of defense, in a suit for ejectment brought against him, under the provisions of Rent Restriction Act that by acceptance of rent a fresh tenancy was created which had to be determined by a fresh notice to quit.'
(12) The above observations clearly go against the appellant and negative the contention advanced on his behalf.
(13) Mr. Gurcharan Singh has also referred to the fact that the appellant paid the rent to the respondents wtihout insisting upon a succession certificate. This fact, in our opinion, would not in any way improve the case of the appellant so far as the alleged waiver is concerned.
(14) As a result of the above, the appeal fails and is dismissed, but in the circumstances without costs. The parties are directed through their counsel to appear before the learned Additional Controller on A.N.K.'