J.P. Jain, J.
1. This is an appeal by the tenant arising out of a suit in ejectment and for recovery of mesne profits,
2. The suit shop is situate in the town of Udaipur. It was constructed in October, 1968 Basanti Lal admitted Jagdish Chandra as a tenant of this shop on and from 18th of January, 1969 under the rent note of that date Ex. 1. The agreed rent was Rs. 150/- per month. Under Clause 7 of the agreement the tenancy was fixed for one year but under Clause 8 it was stipulated between the parties that the suit shop was liable to bf vacated after one month's noice. On January 16, 1970 Basanti Lal determined the tenancy of Jagdish Chand by notice with effect from February 18, 1970. The tenant having failed to vacate the suit shop Basanti Lal brought the present suit under appeal on April 24, 1970, for ejectment and for recovery of Rs. 300/-, as damages for use and occupation of the suit shop.
3. The suit was opposed by Jagdish Chandra by his written statement submitted of 4th Nov., 70 on various ground. The case was tried by the Additional Civil Judge, Udaipur, on various issues arising between the; parties. The trial Judge held that the suit shop was on rent with the defendant on and from January 18, 1969. The construction of the shop was completed in the month of October, 1968. The shop was given on rent for a period of one year yet there was a contract that the tenancy was terminable by one month's notice and the notice in the suit was valid. It was also held that though the real owner of the property was Pushpa Devi w/o Basanti Lal but the tenancy was created by Basanti Lal and Jagdish Chandra accepted the same and he took possession in consequence of the said tenancy. The suit was, thereof, maintainable.
4. The learned trial Judge was also of the opinion that provisions of Section 13 of the Rajasthan Pre raises (Control of Rent & Eviction) Act, 1950, (hereinafter referred to as 'the Act') were not applicable to the suit premises. The suit was eventually decreed on January 9, 1974. Being dissatisfied with this decree Jagdish Chandra went in appeal but his appeal was turned down by the learned District Judge, Udaipur, Hence this second appeal.
5. The principal contention raised by Mr. Bhandari on behalf of the appellant is that after the filing of the suit the landlord accepted the rent from 18-2-1970 to 18-8-1970 & it thus waived the notice. Placing reliance on Section 113 of the Transfer of Property Act it has been argued that the plaintiff is not entitled to seek eviction of the tenant. This contention was also raised before the learned lower appellate Court. Bui if did not find favour with him Reference has been made to the receipt at page B 16 on the record of the trial Court to show that a sum of Rs. 915/75 was paid by Jagdish Chandra and received by Shri Anand Swaroop for the plaintiff Basanti Lal. It was also pointed out that the rent was received by the plaintiff subsequent to 18th August, 1970 On the other hand Mr. Parikh learned Counsel for the appellant submitted that the acceptance of rent did not amount to waiver within the meaning of Section 113 of the Transfer of Property Act. His submission is that after the quit notice the plaintiff instituted the suit for ejectment of the tenant from the suit shop. The tenant made the payment under she supposed impression that he is liable to make the payment under Section 13(4) of the Act and as such on the facts and circumstances of the C case it cannot be said that the plaintiff waived the notice, particularly in view of the fact that he continued to pursue the suit.
6. On behalf of the appellant reliance has been placed on Bengal Nagpur Railway Co. Limited v. Balmukunda Bisaswar Lall AIR 1923 Cal. 663. Their Lordships were dealing with the question of acceptance of rent due after forfeiture from the lessee. It was observed that not-withstanding the protest of the lessor that such acceptance is without prejudice to his right to insist upon his forfeiture operates as a waiver of notice to quit. The case on hand is not a case of forfeiture. Section 112 of the Transfer of Property Act provides for waiver of forfeiture under Section 111(g) whereas Section 113 deals wish the waiver of to ice to quit given under Section 111(h). There is a marked difference between the two provisions. Waiver of notice to quit does not like waiver of forfeiture depend upon the election of one part, but upon the consent of both. This differenced is manifested by the use of the words in Section 113 'with the express or implied consent of the person to whom the notice is given'. This is not the case within Section 112.
7. Another case on which reliance has been placed is Manicklal Day Chaudburi v. Kadambini Dassi AIR 1926 Cal. 763. It this case notice to quit was given to the tenant, but on his failure to vacate the premises the suit was filed. During the pendency of the suit rent was accepted by the landlord. Buckland, J., held that where rent is accepted after the notice to quit whether before or after the suit is filed, the landlord there by shows an intention to treat the lease as subsisting. His Lordship met the argument of the other side by the following observations:
One cannot logically say that the fact of accepting rent by itself shows an intention to treat lease as subsiting if no suit has been filed and a different intention it a suit has been filed. The intention shown by the act itself must be the same in either case. Therefore by accepting the rent, the plaintiff in my opinion showed as intention to treat the lease as subsisting and acceptance of the notice to quit notwithstanding the fact that a suit had already been filed for the purpose of ejecting the tenant. It has also to be observed that under Section 112 the acceptance of rent after suit has been exactly provided for, and it may well be argued that ahd it been intended that acceptance of rent after suit should not operate as a waiver in the case of a notice to quit one would have expected that a proviso similar to that in Section 112 would have been incorporated in Section 113.
8. Following the Calcutta decision is the case Ram Dayal v. Jawala Prasad AIR 1966 All. 296. Asthana J., was dealing with the similar question obsetved as follows:
Unless once it is found that the rent for a period subsequent to the notice to quit was accepted by the plaintiff-landlord it is that circumstances alone which has to be taken into consideration for finding out whether by so accepting the rent the plaintiff intended that the relationship of landlord and tenant should subsist between the parties. That the defendant was unable to satisfy the Court by his evidence affirmatively that there was an agreement arrived at for continuing the tenancy, is immaterial. It is not the diligent prosecution of the suit which is material in judging whether the plaintiff as landlord intended to continue the tenancy of the defendant, what is material is the acceptance of rent by him for a period subsequent to the notice to quit.
9. Mr. Bhandari also referred to Sheikh Peer Bux v. Mowzah Ally Special Number Weekly Reporter Sutherland 1864, page 10, and Jagabandu Sahu v. Surendra Nath Bhuyan 21 Cuttack Law Times 395 to this effect. In these cases as well it was held that if the rent has been accepted by the landlord from the tenant during the continuance of the suit payment and acceptance was held to waive the notice quit.
10. Sections 112 and 113 of the Transfer of Property Act read as follows:
Section 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 lessor showing an intention to treat the lease as subsisting:
Provided that the lessor 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.
Section 113 - A notice given under Section 111 Clause (b), is waived, with the express of 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.
11. There are two illustrations appended to Section 113 of the Act. None of them covers the (sic) hand. Waiver of notice does not like waiver of forfeiture depends upon the election of one party alone bat upon the consent of both. As a matter of fact it proceeds on the basis of an agreement between the landlord and tenant. M(sic)ule, J., in Blyth v. Dennet 1853 (13) CB 175, 180 observed:
There is this difference between a determination of a tenancy by a notice to quit and a forfeiture: in the former case, the tenancy is put an end to by the agreement of the parties, which determination of the tenancy cannot be waived without the assent of both; but, in the cane of a forfeiture, the lease is voidable only at the election of the lessor; in the one case the estate continues; though voidable in the other, the tenancy is at an end.
The question under Section 113, in fact, imputes to the landlord the intention of creating a renewal of tenancy or treating the tenancy as still subsisting. It is essentially a question of fact. The question in this case which arises is as to whether the receipt of the amount of Rs. 915/75 by the landlord from the tenant during the pendency of the suit amounts to waiver or not. As already noticed this has to be inferred from the facts and circumstances of each case. The receipt shows that the amount of Rs. 915-75 was as paid by the tenant on 19th August, 1970, in the court and it was received by Mr. Anand Swaroop on behalf of the landlord. The tenant applied to the court for a direction to deposit the amount of rent and on having obtained this direction, the deposit of the amount of rent for the subsequent months was withdrawn by the plaintiff. There is no manner of doubt that the plaintiff continued with the suit and no step was taken by the tenant to ask the court to dismiss the plaintiff's suit on the ground that in having accepted the rent from 19th February. 1970 onwards the plaintiff has waived the notice to quit. It is thus obvious that the tenant did not make the payment with the intention to keep his tenancy subsisting, t have, therefore, nothing on the record except the receipts which go to show that the amount of rent was received by the plaintiff. It does not give rise to an inference expressly or by implication that the rent was accepted with the intention to waive the notice and to keep the tenancy subsisting, The learned lower appellate Court held on the basis of the plaintiff's affidavit that the rent after 18th August, 1970 was received by him as compensation for use and occupation of the suit, shop, and it was not received as rent. However, in my opinion it would not make much difference unless there are circumstances on the record to give rise to the inference that the landlord in accepting the rent clearly intended to waive the notice or to keep the tenancy subsisting. The appellant's plea that the plaintiff is not entitled to get the decree for eviction cannot be accepted. In short where a landlord files a suit for ejectment after determining the tenancy by serving a notice on the tenant and claims damages for use and occupation and the defendant makes payment to the landlord without insisting on him to withdraw the suit, the landlord cannot be said to have waived his right asserted by him to eject the tenant. If the landlord actually continued the proceeding of the case or appeal with regard to the ejectment of the tenant, acceptance of rent alone by him cannot be treated as a waiver.
12. No decision of this Court has been cited at the bar. However, I find support from the following decisions : Kamlapat Sahi v. Mst. Manho Bibi AIR 1948 Oudh 127. Khumanl v. Saktey Lal : AIR1952All579 . Ilahibux v. Munir Khan AIR 1953 Nag. 219, Motilal v. Basant Lal : AIR1956All175 , Puran Mal Jaiswal v. Onkarnath Ghoudhary and Ors. AIR 1959 Patna 128, Ram Lal v. Sardari Lal AIR 1968 J. & K. 22.
13. In the Outh case AIR 1948 Oudh. 127, the Calcutta case decided by Buckland J. was considered. The learned Judge dealt with the question in the following manner:
On the question of waiver, the learned advocate for the appellant relied noon a decision of the Calcutta High Court reported in AIR 1926 Cal. 763, in which a learned single Judge of that court has held that acceptance of rent during the pendency of a suit amounts to a waiver of the notice. The learned Judge points out that, in Section 113, T.P. Act, there is no proviso similar to the second proviso contained in Section 112 of that Act. From this he came to the conclusion that a notice could be waived even after a suit had been brought to enforce the rights which arose by reason of that notice. With all deference to the learned Judge I am unable to agree with this reason.
He further observed that Section 113 does not contain a proviso because it only relates to an act showing an intention to treat the lease as subsisting. Once a suit has been instituted, it cannot possibly be said that any act of the lessor shows an intention to treat the lease as subsisting unless he withdraws the suit. He may renew the lease, in which case it would not be a question of waiver but a question of fresh lease.
14. Regarding Khumani's case : AIR1952All579 the learned Judge observed that if the landlord actively proceeded with regard to the ejectment of the tenant mere acceptance of rent by him cannot be treated as waiver so as to deprive him of the right of ejectment in pursuance of the decree which he has obtained. He was also of the opinion that even the use of the ward 'rent' in the receipts given by the landlord does not constitute waiver.
15. In Motilal' case : AIR1956All175 , the learned Judge observed as follows:
As will appear from the language of Section 113 a waiver can be brought about by the action of the landlord if after determining the tenancy of notice the landlord chooses to accept rent again from the tenant. In such an event under Section 113, T.P. Act, a notice for determination of the lease already given by the landlord to the tenant will be deemed to have been waived. No question of waiver arises after the landlord has brought a suit on the basis of a valid notice given for determination of the lease. After such suit has been brought there can be no waiver, though it is always open to a landlord to renew the lease at any time he pleases. I do not therefore think that any question of waiver arises in this case.
16. Sinha C.J. in Ilahibux AIR 1953 Nag. 219 was also of the opinion that an act of waiver is an act of the party after knowing all the circumstances of the case and leading to the irresistible conclusion that he had given up the rights asserted by him previously. It was also observed:
It is true that in some cases it has been held that after a notice to quit has been served on the tenant, if the landlord has received certain payments by way of rent he will be deemed to have waived the notice. But in this case not only had the landlord served the notice to quit but he had actually instituted the suit for ejectment and for damages for use and occupation If the defendant wished to insist upon the plaintiff withdrawing his claims inclusive of the claim for ejectment and damages for use and occupation. If the defendant wished to insist upon the plaintiff withdrawing his claims inclusive of the claim for ejectment and damages for use and occupation he could have entered into an agreement with him and then made the payment. In that case, of course, the position would have been clear. But without insisting upon the plaintiff withdrawing his suit for ejectment and for damages for use and occupation, if he made certain payments it cannot be taken to be inconsistent with the plaintiff's tight which he sought to enforce by the suit.
17. Their Lordships deciding the Patna case AIR 1959 Patna 128 held that the question whether or not there was a notice to quit is purely a question of an indention of the parties In order, therefore, to determine whether or not in a particular case there was waiver of notice to quit one has to see whether from the conduct of the landlord and tenant, by demand and acceptance of rent or by demand followed by express promise to pay, or otherwise an intention to treat the lease as subsisting can be inferred, and, this would certainly depend upon the facts and circumstances of each case. When it is a question of intention, it is plain that not even the payment and acceptance of rent by the landlord after the notice to quit, much less a mere demand of rent, necessarily waives the notice.
18. The same view has been taken by the learned Judges in Ramlal's case AIR 1968 J. & K. 22. The observations of Buckland J. contained in Calcutta case AIR 1926 Cal. 763 were dissented.
19. On consideration of the cases referred to above I am clearly of the opinion that in the present case it cannot successfully be urged on behalf of the appellant that the landlord having accepted the rent during the pendency of the suit waived the notice to quit and intended to keep the tenancy subsisting.
20. Another contention on behalf of the appellant is that there is a clear inconsistency in Section 2(2)(e) and Section 13 of the Rajasthan Premises (Control of Rent & Eviction) Act, 1950. The argument is that Section 13 contains a non-obstante clause and as such this section over-rides Section 2(2)(e). In support of this contention reliance has been placed on K. Parasuramiah v. Pokuri Laksnamma : AIR1965AP220 . The relevant observations are:
A non obstante clause is usually used in a provision to indicate that that provision should prevail despite anything to the contrary in the provision mentioned in such non-obstante clause, in case there is any inconsistency or a departure between the non obstante clause and another provision one of the objects of such a clause is to indicate that it is the non-obstante clause which would prevail ever the other clause. It does not however necessarily mean that there must be repugnancy between the two provisions in all such cases.
Section 2(2)(e) reads as follows:
Section 2--Extent, commencement and application (2) Sections 1 to 4 and 27 to 31 of the Act shall come into force a once, and the remaining provision thereof shall extend to such are areas in the State of Rajasthan and shall coma into force therein with effect from such date, as may be, from time to time be notified by the State Government in the Official Gazette:
Provided that nothing in the Act shall apply.
(e) - to any premises the construction of which was completed on or after the 1st Tune, 1951, for a period of seven years from the date of such completion.
21. So far the proposition of law is concerned there can be no dispute and in fact the learned Counsel for the respondent has not raised any controversy. By Section 2(2)(e) the provisions of this Act that is from Section 5 to Section 26 have not been made applicable to the premises falling under Clause (e) for a period of seven years. This has been found as a fact that the suit shop was construe ed in October, 1968 Section 13 would not be applicable to this building for a period of seven years from October, 1968 In this view of the matter it is difficult to accept the contention of Mr. Bhandari that Section 13 would apply even in a case of this type. This has been held by this Court that after the expiry of seven years provisions of this Act, which has not been made applicable by this proviso will start governing the building, and as soon as that contingency happens Section 13 will come into play and will have its full effect. That is after October 1975 Section 13 will be applicable to the suit property as well. But so long seven years do not expire the question of applicability of Section 13 does not arise, and Mr. Bnandari cannot avail of the position of law that he canvassed before me.
22. No other point was argued.
23. In the result the appeal fails and it is hereby dismissed. In the circumstances of the case the parties will bear their own costs of this appeal.
24. Learned Counsel for the appellant prays for leave to appeal to Division Bench But I do net thick it to be a fit case for grant of leave. The leave is refused.