1. This appeal has been preferred by the defendant to canvass the correctness of the decree for ejectment passed against him by the appellate Judge in reversal of the dismissal of the suit by the trial Judge. the only question for consideration in this appeal is whether receipt of rent by the respondent-landlord subsequent to his issuing a notice (Ex. A-6) of termination of tenancy would amount to waiver as known to law, and would stand in the way of the action for ejectment not preceded by another valid notice to quit.
2. The brief facts which require to be noticed for considering the case on hand are as follows: The respondent as owner of Door No. 189, Raja Street, Walajabad, leased it out to the appellant for a period of 11 months for a certain rent. There is some dispute about the quantum of rent, but we are not concerned with that in this appeal. The lease was entered into on 10-9-1964. The leased property consisted of a front portion having a flour-mill therein and another portion having an aluminium smithy therein. It would appear that about a month or two after the lease, the appellant surrendered that portion of the building which housed the smithy and retained in his possession only the flour mill portion. He was paying a rent of Rs. 50/- per month for the portion in his occupation. After the period of 11 months was over, the respondent filed R. C. O. P. No. 65/65 under the Madras Buildings (Lease and Rent Control) Act (18 of 1960) to have the appellant evicted on grounds of wilful default in payment of rent and bona fide requirement. That application was dismissed on 30-3-1966. Thereafter, the respondent gave the notice Ex. A-6 on 17-4-1967 and terminated thereunder the lease with effect from 10-5-1967. He followed up the notice by filing another petition R. C. O. P. 54/67. But that petition had to be eventually, withdrawn as the respondent was advised that the lease in of the appellant was of a composite nature, the lease being not only a building but also of the flour mill machinery installed therein and therefore, only a suit in ejectment and not a petition under the Act 18/60 would lie. On account of that, the petition was dismissed on 9-2-1968. There was an interregnum and it was only on 22-7-1968 the respondent came forward with his suit, O. S. No. 759/68, for recovery of possession of the lease property. Despite issuing the notice, Ex. A-6, the respondent received rent for the property till the end of the year 1968 and it was only on 19-3-1969 that he refused the rent sent by the appellant through money order.
3. In the suit, the defence of the appellant, which aspect alone needs consideration now, was that there had been no valid notice of termination and, in any event, the notice had been subsequently waived by the respondent accepting payment of rent without demur. The trial court sustained the second of the two mentioned above and found waiver against the respondent. The appellate Judge relying upon K. S. Abdullah v. Srinivasan, 1971-1 Mad LJ 385 held that the mere acceptance of rent after issue of notice to quit by itself, would not constitute waiver as Sec. 113, Transfer of Property Act required something more to show that the parties had waived the notice. He, therefore, reversed the judgment in favour of the respondent. Aggrieved by that, the tenant has come up in Second Appeal.
4. Mr. Srinivasa Gopalan, learned counsel for the appellant, raised two contentions before me to assail the judgment of the appellate Judge. The first one is that Saleh Bros. v. K. Rajendran on the basis of which Abdullah v. Srinivasan (1971) 1 Mad LJ 385 was decided, was decided on erroneous reasoning and the ratio laid therein should not, therefore be applied. The second contention is that, in any event, the facts of the instant case are different from the facts in that case and, on that score, the appellant was entitled to distinguish from the reported cases.
5. In Saleh Bros. V. K. Rajendran, Ramamurti, J. had to construe the scope of Section 113 of the T. P. Act. There is a specific proviso to Section 112 that where rent is accepted after the institution of a suit to eject the lessee on the ground of forfeiture, such acceptance would not be waiver. No such proviso is found in Section 113. On the other hand, Illustration (a) is to the effect that where A, the lessor, gives B, the lessee, notice to quit the property leased and where after the notice expires, B tenders and A accepts rent which had become due in respect of the property since the expiration of the notice, the notice is to be treated as waived. The argument before Ramamurti, J. was that a mere acceptance of rent by a landlord after he has issued a notice under Section 111(h) will not constitute waiver because the section required a consensus of the minds of the lessor and lessee to waive the notice. The contention of the other side was that in the absence of a proviso as the one found under Section 112 and in view of the illustration (a) to Section 113, it was not open to the lessor to contend that acceptance of rent subsequent to the expiry of the notice to quit, would not constitute waiver. Dealing with such a question, the learned Judge held as follows:
"The principle underlying Sec. 112, that after the landlord had elected to avail himself of the forfeiture and had given notice in writing to the lessee of his intention to determine the lease and followed it up by a suit in ejectment there is no waiver, would equally apply to Section 113 where the landlord has instituted a suit in ejectment, preceded by the issue of a notice determining the lease. The absence of a corresponding proviso, in Section 113 is of no significance and does not manifest any intention on the part of the Legislature to make any difference. Under Section 111(h) the lease is determined on the expiration of the notice which can be given by the unilateral choice of one of the parties, there being nothing further to be done by the other party. The issue of such a notice, of its own force and without anything more, after the expiry of the period determines the lease."
Dealing with the operative force of Illustration (a) the learned Judge expressed his opinion as follows:
"It is the intention of the lessor to treat the lease as subsisting which is the predominant and deciding factor in bringing about a waiver and not any particular act by itself. Illustration (a) must, therefore, be understood and applied in consonance with the principle underlying the section with due reference to the intention of the lessor. There is no warrant whatever may be the intention of the lessor, should of its own force, divorced from the circumstances of the case, be regarded as amounting to a waiver. Illustrations are useful aids to construction and for securing the proper meaning of the section, but they cannot control the plain meaning of the section."
6. It is the correctness of this opinion which is challenged by Mr. Srinivasa Gopalan. I can dispose of that objection very easily, for sitting as a single Judge, I cannot but follow the ratio laid down by Ramamurti, J. unless I feel differently about the matter and refer to a Bench. But inasmuch as lengthy arguments wee advanced by his contention I shall deal with them, since in my view, the arguments are not tenable ones. The point urged by Mr. Srinivasa Gopalan is that there is a wide divergence between Sections 112, 113 and 116 of the T. P. Act and therefore, S. 113 has to be construed on its own force and it is not open to a court to either import into that section the second proviso to Section 112 or to denude it of the Illustrations appended to that section. It is, no doubt true that Sections 112 and 113 provide for different situations, Section 112 applies to cases of forfeiture envisaged under Section 111(g) whereas Section 113 relates to a mere termination of tenancy without there being any forfeiture. As such, the question of waiver will have to be looked at from different perspectives in respect of the two sections. The difference has been succinctly pointed out by Mulla in the Transfer of property Act, 6th Edn. at p. 760 in the following manner:
Waiver of notice to quit does not, like waiver of forfeiture, depend upon the election of one party, but upon the election of one party, but upon the consent of both, Maule, J. in Blyth v. Dennett, ((1853) 13 CB 178, 180) said:
"There is this difference between a determination of a tendency 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 case 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."
7. It may, therefore, be seen that the question of waiver under S. 112 would solely depend upon the intention of the lessor whereas a waiver under Section 113 would depend upon the intention of both the parties, viz., the lessor and the lessee. It is only having regard to the unilateral intention of the lessor alone being the determining factor for waiver under S. 112 that a specific provision has been made to treat the receipt of rent pendente lite out of the waiver clause. Therefore, merely because such a proviso is not found in S. 113 it will not be open to a tenant to contend that per se the acceptance of rent by a lessor subsequent to giving a notice of termination of tenancy, would itself constitute waiver.
8. Another factor on which the appellant's counsel places reliance is that full effect must be given to Illustration (a) of S. 113 and if that is done, then, even mere acceptance of rent by the landlord after the expiry of the notice will amount to waiver. On this aspect of the matter too, the appellant's counsel makes an attempt to assail the view of Ramamurti, J. in Saleh Bros. v. K. Rajendran, .
According to the counsel, the illustration to a section cannot be ignored or brushed aside because it is not part of the body of the section and for that proposition, he relies on Muralidhar Chatterjee v. International Film Co. Ltd., (AIR 1943 PC 34). Reliance is also paced on Jumma Masjid Mercara v. Kadimaniandra Deviah for the proposition that:
"It was not to be readily assumed that an illustration to a section is repugnant to it and rejected."
The principles laid down in the two cases are indeed very salient ones and provide enlightening guidelines for construing the effect of illustrations to sections. But, I am afraid those decisions were rendered under different contexts and the force of that ratio would not apply to the question on hand.
9. The Privy Council had to consider whether the illustration to Sec. 65 of the Indian Contract Act would also apply to cases falling under Sec. 64 of that Act. The Board pointed out that Sections 64 and 65 were not mutually exclusive and that Illustration (c) to Sec. 65 would equally apply to cases under Section 64 and it was in that context the Board expressed its opinion that illustrations ought not be ignored or brushed aside because they are not part of the body of the section. Before the Supreme Court, the argument was that Section 43 of the T. P. Act must be held to be governed by Sec. 6(a) of the T. P. Act. It was while repelling such a contention the Supreme Court pointed out that the illustration to S. 43 indicated the operative field of the section and that there was really no conflict between S. 43 and S. 6(a) as they operated in different cases and under different conditions. It was then the Supreme Court pointed out that illustrations to sections ought not to be rejected unless they are found to be repugnant to the section itself.
10. In the present case, the contention that mere acceptance of rent by the respondent subsequently to the expiry of notice Ex. A-6, must be held waiver cannot be accepted for more than one reason. As already pointed out, to constitute a waiver under S. 113, not only the acts of parties must coalesce but there should also be a consensus of minds. That is why the section says that there should be some act on the part of a person giving the notice showing an intention to treat the lease as subsisting and such act must be with the express or implied consent of the person to whom the notice is given. The acceptance of rent by the lessor merely as a prudential act without the necessary animus to nullify the notice of termination given earlier will not constitute an act on his part with the express or implied consent of the lessee to treat the lease as subsisting. Moreover, there must also be evidence to show that the lessee construed the act of receipt of rent by the lessor as an intention to treat the lease as subsisting and then made further payment of rent to manifest his express or implied consent to the continuance of the lease. The evidence on record does not show when and how the rent was remitted to the respondent. It would appear that, after the notice, the appellant sent the rent through money order, but whether it was sent periodically, month after month, or in instalments covering the rent for several months, is not known. There is no evidence by the appellant that he construed the receipt of rent by the respondent as an act of waiver and therefore, he consciously performed his obligation as a tenant by remitting the rent every month. In such circumstances, it is not open to the appellant to contend that the appellate Judge has not given the full effect of Sec. 113 to his case and therefore, the order of ejectment is wrong.
11. The second of the contentions, as already set down, is that the appellant's case differs in details from the facts of Saleh Bros. v. K. Rajendran and therefore, the ratio in that case would not apply. This argument proceeds on the basis that the respondent who had instituted proceedings under the Rent Control Act had subsequently withdrawn them and the act of withdrawal coupled with receipt of rent till the end of 1968, would, certainly, amount to waiver. This contention is clearly devoid of any merit. The withdrawal was not or nullifying the notice but for more effectively pursuing the intention of termination of lease expressed therein and the demand for possession made thereunder. As the lease comprised of not only the building but also the machinery, the Rent Controller had no jurisdiction to entertain the petition for eviction. It was, therefore, for more effective implementation of the demand made under the notice that the respondent had to file a suit. Far from showing any conscious giving up of his demand under the notice, the acts of the appellant clearly point out that the animus exhibited by him in that notice had at no time been given up. It had been consistently and constantly pursued.
12. Except the mere acceptance of rent by the respondent, the appellant is not able to point out any other circumstance which can be construed as waiver of notice by the respondent. It is then pointed out that under Ex. B-1 the respondent refused the rent tendered on 19-3-1969 and from that, it can be inferred that the prior receipts were done without demur. Even this contention has no substance. Merely because, at some point of time, the respondent refused to receive the monies sent by the appellant, it cannot be construed that the earlier payments received by him were one without demur and were accepted by him in derogation of the demand made by him under Ex. A-6. There has been no conscious acceptance of the rent by the respondent indicating a change of stand nor can the remittance of rent by the appellant be construed as an act flowing from the revised or charged stand of the lessor.
13. I, therefore, find that the appellate Judge has rightly overruled the plea of waiver put forward by the appellant and decreed the suit of the respondent. The Second Appeal fails and will stand dismissed with costs for the respondent.
14. No leave.
15. Appeal dismissed.