P.N. Mookerjee, J.
1. The appellant was a monthly tenant under the respondent landlady in respect of what may be called the garage room at premises No. 171-A Lansdowne Road, Calcutta, at a rental of Rs. 18/- per month. The tenancy was terminated by a notice to quit under Section 111(h), Transfer of Property Act on and from the 1-5-1949 and the tenant having failed to vacate the room in question in terms of the said notice, the present suit for ejectment was filed on the 7-6-1949.
2. In the plaint there was a specific allegation that the disputed room was required by the plaintiff landlady bona fide for her own use and occupation, namely, as a garage for her car and, upon such allegation, it was pleaded that the Rent Control Act of 1948 which was then in force would not stand in the way of her getting of a decree for ejectment.
3. The defence denied the truth of the plaintiff's allegation and claimed protection under the Rent Control law.
4. The learned Munsif accepted the plaintiff's case and gave her a decree. On appeal this decision was affirmed by the learned Subordinate Judge who accepted the learned Munsif s finding in the plaintiff's favour and also rejected the further defence plea of waiver of the notice to quit by alleged subsequent acceptance of rent by the landlady during the pendency of the ejectment appeal in the lower appellate court.
5. At the instance of the tenant, the matter came up to this Court in second appeal and Chunder J. who heard the tenant's appeal remanded the case to the lower appellate court for a fresh consideration of this question of waiver --and apparently also the somewhat analogous question of 'holding over' -- in accordance with law after giving the parties opportunity to produce additional evidence on the point.
6. The rehearing, however, has brought no relief to the tenant and the learned Subordinate Judge, before whom the tenant's appeal was reheard in pursuance of the judgment of Chunder J., after taking additional evidence on the question of waiver of the notice to quit and the other question, namely, that of 'holding over', referred to above, has again dismissed the same and affirmed the trial court's decree for ejectment. Hence the present second appeal by the tenant.
7. The only point which requires consideration is whether the notice to quit has been waived under Section 113, Transfer of Property Act or a 'new tenancy' created by holding over under Section 116 of the said Act by the subsequent acceptance of rent and whether on that ground the decree for ejectment ought to be vacated.
8. The alleged acceptance of rent which, according to the appellant-tenant, constituted waiver of the notice to quit under Section 113, Transfer of Property Act or created a 'new tenancy' by holding over under Section 116 of the said Act was, as already sufficiently indicated, during the pendency of the ejectment appeal in the lower appellate court. The learned Munsif passed the decree for ejectment on the 17-2-1950. The tenant filed his appeal on the 4-5-1950 and his allegation is that sometime in August 1951 while the appeal was pending before the lower appellate court the landlady accepted rent for the month of July 1951.
The receipt of this rent is not denied but, according to the plaintiff's husband, who was examined in the case and to whom, admittedly, the payment in question was made, the money was accepted on the appellant's representation that he was finding it costly and difficult to deposit rent in court which obviously meant the court of the Rent Controller. The defendant's version was that the payment was made on the assurance of the plaintiff's husband that some other land would be given to him in lieu of the disputed premises.
9. On the above state of the evidence, the lower appellate court has held that there was no waiver of the notice to quit and no 'holding over' as contemplated by law. In the opinion of the learned Subordinate Judge the evidence of the plaintiff's husband is preferable in the circumstances of this case and that evidence, according to the learned Judge, clearly proves that the rent was paid by the appellant just to avail himself of the protection of the Rent Control Act. The learned Subordinate Judge has further expressed the view that, even on the defendant's own version as to the motive for the payment of the rent, it cannot be held that there was any intention to renew or continue or revive the old tenancy and finally the learned Judge has rejected the defendant's plea of waiver of the notice to quit as also that of 'holding over'.
10. In support of his view, the learned Subordinate Judge has cited the decision of Sarkar J., in the case of -- 'Manindra Nath v. Man Singh' : AIR1951Cal342 (A), as also the more recent case of this Court -- 'Sm. Sailabala Dassee v. H. A. Tappassier' : AIR1952Cal455 (B) (Per Das Gupta J.). He has also in his judgment referred to two other decisions of this Court, cited before him, viz., -- 'Maniklal Dey v. Kadambini Dassi', AIR 1926 Cal 763 (C) and -- 'Surendra Chandra Majumdar v. Sm. panchi Bibi', 83 Cal LJ 328 (D) and he has held them distinguishable from the present case. On the facts before me I am clearly of the opinion that the learned Subordinate Judge was right in overruling the defence contentions. I am not prepared to believe -- and the learned Subordinate Judge also obviously did not believe -- that the defendant's version as to the arrangement between the parties at the time of the relevant payment of rent is correct.
The evidence of the plaintiff's husband is far more acceptable in the circumstances of the present case and the learned Judge, in my opinion, committed no error in relying upon the same. It has already been abundantly proved in this case that the plaintiff had or has no other land and in the face of that fact the defendant's story that the plaintiff's husband agreed when he received the 'rent' for July 1951 to give him some other land in lieu of the present disputed premises can hardly be accepted. In any event, that fact lends weight to the plaintiff's denial of that story and as between the evidence of the defendant and that of the plaintiff's husband, the latter seems to be much more credible.
I have also little hesitation in holding that the plaintiff's husband accepted the 'rent' for July 1951 on the defendant's representation when he was finding it costly and difficult to deposit it with the Rent Controller. Prior to that, the defendant was depositing 'rent' with the Rent Controller and, as it is not his case that the plaintiff or her husband asked for direct payment of the 'rent', it is unlikely that he would approach the plaintiff's husband unless he was feeling some difficulty in the matter. I hold, therefore, that the 'rent' for July 1951 was paid and accepted on the defendant's representation, as set out in the evidence of the plaintiff's husband, namely, to relieve the defendant-appellant from depositing 'rent' with the Rent Controller which was necessary for his protection under the Rent Control Act but which he was finding 'difficult and costly/'
11. In view of my above finding the payment and acceptance of the rent in question must be held to have been made not with the intention of renewing or reviving or continuing the old tenancy or creating a 'new' one by waiver of the notice to quit or by 'holding over', as the case may be, according to law but for the defendant's protection under the Rent Control law. Even apart from the defendant's above representation -- and as his story of a promised new tenancy in lieu of the old one cannot be accepted -- his position is no better under the law. When the payment was made the suit for ejectment had already been decreed by the trial Court and it was pending in appeal and the defendant was pressing his defence under the Rent Control law and was claiming protection under that law as a statutory tenant.
In such context it is idle to contend that the payment of 'rent' for July 1951 must necessarily be taken to have been made with a view to continuing or reviving the old tenancy and that its acceptance would necessarily have the effect of waiver of the notice to quit and revival or continuance of the said tenancy under Section 113, Transfer of Property Act or renewal of the old tenancy or the creation of a 'new tenancy' by 'holding over' under Section 116 of the said Act. The payment was at least ambiguous in character and its acceptance was also equally so and as the onus to prove waiver of the notice to quit or holding over according to law is clearly on the tenant, such onus would not be discharged and the tenant would fail, in the absence of other evidence of circumstances, resolving the ambiguity in his favour.
Illustration (a) to Section 113 was framed in an entirely different context. Normally, that is, in the absence of any indication, pointing reasonably to a contrary conclusion, the natural inference from payment and acceptance of rent after termination of a tenancy is of an agreement or consensus between the parties to continue or revive the old tenancy or to renew it or create a 'new tenancy'.
12. The position, however, would be materially different when such payment or acceptance is made in dubious circumstances and does not unequivocally lead to the legal inference that the parties intended thereby to re-establish the relationship of landlord and tenant. In such cases mere payment and acceptance of rent, even though the tenant may be continuing in possession, would not necessarily establish the requisite 'consensus ad idem' between the parties to renew the lease or 'to treat the lease as subsisting' and would not thus operate either as waiver of the notice to quit under Section 113, Transfer of Proberty Act or as a renewal of the tenancy or 'holding over' under Section 116 of the Act.
In -- 'Kai Khusroo Bezonjee Capadia v. Bai Jerbai Hirjibhoy Warden', AIR 1949 FC 124 (E), the majority decision in favour of the sub-tenant was founded upon the view that in that case there was no question of any Rent Control law and the payment of rent was clearly made with a view to renew the tenancy and the landlord's receipt of the rent was in law an acceptance of the said position. The learned Judges, however, made it clear that the result would have been otherwise if the case could have been brought under the Rent Control Legislation.
In the minority judgment, too, of Sastri J. as he then was, it was definitely held that mere payment or acceptance of rent after the termination of the tenancy would not, where the case was one under the Rent Control law, have the effect of renewing or reviving the tenancy and it was further held that in the case cited the sub-tenant's claim of protection under the Rent Control law brought about the same result and there was nothing also in law to prevent the landlord from accepting the money sent as rent by the tenant or the sub-tenant as mesne profits or compensation for use and occupation.
'Kapadia's case (E)' is, therefore, no authority In the appellant's favour. On the other hand, it affirms the principle underlying the several English decisions, e.g., -- 'Davies v. Bristow', (1920) 3 KB 428 (F); -- 'Shuter v. Hersh', (1922) 1 KB 438 (G) and -- 'Morrison v. Jacobs', (1945) 1 KB 577 (H), which support the view I have expressed above. Same remarks apply to the case of this Court in -- 'Bengal Nagpur Rly. Co. v. Firm Bal Mukunda Biseswar Lall', AIR 1923 Cal 663 (I), where at page 665 of the Report the learned Judges recognised that for cases coming under the Rent Control law illustration (a) of Section 113, Transfer of Property Act furnished no safe or absolute guide and in relation to such cases they expressly made the following observations, viz.,
'The mere fact that the landlord accepts rentafter giving the notice to quit cannot be takenas a waiver by him of the notice to quit soas to create a new tenancy' (vide the middleparagraph of col. 1 of that page).
The decision of Buckland J. in -- 'AIR 1926Cal 763 (C)', where he inferred waiver of the,notice to quit from the landlord's withdrawal ofdeposit from the Rent Controller did not takeinto consideration the various aspects from whichthis question of waiver ought to be approachedand considered and its criticism in the case of-- 'Navnitlal Chunilal v. Baburao (No. 1)', AIR 1945 Bom 132 at p. 134 (J) of the Report is not altogether unjustified. Lord Mansfield's observation quoted at pages 134 to 135 of this latter report from the old English case of -- 'Doe v. Batten', (1775) 1 Cowp 245 (K), deserves careful consideration and, in my opinion, the view of Sarkar J. in -- ' : AIR1951Cal342 (A)' and of the Bombay High Court in the case of -- 'Baldeodas v. G. P. Sonavalla', AIR 1948 Bom 385 (L) is, on the whole, correct.
A similar view of the law was also expressed by Das Gupta J. in the other case--' : AIR1952Cal455 (B)', cited in the judgment of the lower appellate Court, and I am inclined to think that, broadly speaking, the general law of waiver of notice to quit, as laid down by my learned brothers Das Gupta J. and Sarkar J. in the two cases, cited above, and by the Bombay High Court in -- 'AIR 1948 Bom 385 (L)', is correct. In the case before P. B. Mukherji J., -- '83 Cal LJ 329 (D)', there was clear evidence of a fresh agreement of tenancy and, although one may not agree with every thing that was said in that judgment, no legitimate exception can possibly be taken to the summing up of the learned Judge at page 337. of the Report that
'Each case has to be judged on its own facts and merits keeping in view the fundamental principle that waiver is an intentional relin-quishment of a known right which I consider to be the basic foundation of the law on this point.'
13. My conclusion, therefore, is that the defendant's pleas under Sections 113 and 116, Transfer of Property Act were rightly rejected by the Court of appeal below and its decision should be affirmed.
14. I, accordingly, dismiss this appeal with costs.
15. Leave to appeal under Clause 15, LettersPatent is asked for but, in my opinion, havingregard to the earlier findings, made in this judgment, this is not a fit case for the granting ofsuch leave. The prayer for leave is, accordingly,refused.