1. This is a suit by a landlord against a tenant for a decree for possession of a flat let out to the tenant, on the ground that the flat is bona fide required by the landlord for purposes of rebuilding. The landlord claims that he is entitled to the decree under proviso (f) to Section 11 (l), West Bengal Premises Rent Control Act (1948).
2. The house in which the flat is situate was built in 1940 and has at present three storeys, in each of which there are two flats. The defendant is the tenant of the front flat on the second floor. The house has two staircases, the back one of which is meant for the use of the tenants and goes up to the second floor. The front staircase only goes from the ground floor front flat to the first floor front flat both of which flats are used by the landlord. The space in the second floor over this staircase is in the defendant's flat and is used by him as his kitchen. The house also has provision for fitting up a lift and the space meant for the lift shaft is now used on each floor as an ante-room or entrance to a flat. The entrance to the defendant's flat is through one of these rooms.
3. The plaintiff is admittedly an eminent member of the medical profession in this city. He was a member of the Medical Service, probably the Provincial Medical Service, having officiated for a few months at the end of his service career as the Principal, Calcutta Medical College on a salary of Rs. 1800/- a month. He retired from service in January, 1949. He has also had a very good private practice.
4. In 1948, a few months before his retirement, the plaintiff conceived the idea of adding two new storeys to the building and taking up the front staircase to the top floor that he intended to put up and also installing a lift. On 16-8-1948, he got the necessary plan sanctioned by the Corporation of Calcutta. Soon after that the plaintiff intimated to the defendant that he would have to vacate as his flat would be required for the purpose of the additions to the building that the plaintiff proposed to make. The defendant was not willing to leave and, of course, it was not easy for him to leave forthwith.
5. On 22-2-1949, the plaintiff served a notice on the defendant asking him to quit and vacate the flat at the expiry of the month of March 1949. There is no dispute that the notice was duly served on the defendant and that it was a sufficient and legal notice. In spite of the notice, however, the defendant did not vacate the flat. On that, the plaintiff brought this suit on 12-4-1949. The defendant, however, went on paying rent month by month and he did so upto January 1950, and the plaintiff accepted the rent. It appears that, pending the suit, an application for summary judgment had been made, but with no result.
6. The plaintiff says that some time about the end of 1949, while the suit was pending, he was advised by an engineer to alter the plan for rebuilding that he had already had sanctioned by the corporation and this engineer gave certain new suggestions, which he said would fetch a proportionately larger income on the investment. A plan was drawn up in accordance with these suggestions and such plan was actually sanctioned by the Corporation of Calcutta on 19-12-1949.
7. Thereafter this plan was amended; para. 4 was slightly altered. Paragraph 4, as it stood before the amendment, read as follows :
'The said flat is bona fide required by the plaintiff for purposes of building fourth and fifth storeys on the said premises, No. 73B, Ganesh Chandra Avenue, Calcutta.'
After the amendment, it reads :
'The said flat is bona fide required by the plaintiff for purposes of building and/or rebuilding the said premises, No. 73B, Ganesh Chandra Avenue, Calcutta.'
8. This last plan provided for three additional storeys instead of two and for fitting up a lift and for increasing the floor space in each storey by about 200 sq. ft. This increase was to be effected by pulling down a Substantial portion of an existing main wall and putting up another such wall in lieu of it 5 ft. away. The plan also involved the shifting of various partition walls inside the flats. The idea of taking up the front staircase up to the proposed top floor was also retained.
9. The following issues were raised :
'(1) Are the premises required by the landlord bona fide for the purpose of building and rebuilding ?
(2) Has the notice to quit been waived by the plaintiff ?
(3) What relief, if any ?'
10. The tests as to bona fide requirement for building have been settled by the judgment of this Court in Bhulan Singh v. Jnanendra Kumar, : AIR1950Cal74 . The learned Chief Justice in that judgment observed as follows :
'The plaintiff satisfied the learned Judge that he had means to rebuild, that he had made necessary contract to rebuild and that he had every intention of demolishing the premises and erecting premises thereon which would be very much more commodious and would enhance five or six times the rent which he was then receiving from the premises. It appears to me upon the facts that the learned Judge was bound to hold that the premises were bona fide for the purpose of building and rebuilding.'
11. I find that in this case each of these tests has been satisfied. (After discussion of the evidence the judgment proceeds:) All this conclusively shows that it is eminently reasonable that the plaintiff should be allowed to rebuild and his desire to do so is bona fide.
12. I do not wish to be understood as saying that in order to be able to claim possession for rebuilding purposes under the Act, the plaintiff must prove that he reasonably requires an increase of income, or that the building would fetch reasonably more after the rebuilding. These questions have not arisen in this case and I say nothing about them.
13. The defendant in his evidence has admitted that he has no doubt that the plaintiffs desire to rebuild according to the first plan was a bona fide desire. I have already said that I have no doubt in my mind that the plaintiff's desire to build according to the last plan is also a bona fide desire. His need being to augment his income such need would undoubtedly be better served by the last plan and he has the means to carry it into execution. In view of his idea of giving up practice he wishes to convert the ground floor which he has been using for his professional purposes into shop or show rooms and all the other floors except the top or the fifth floor into office rooms. There is evidence that in recent year the locality is being largely used as a business quarter.'
14. It was contended on behalf of the defendant that the plaintiff's idea to rebuild according to the plan of December 1949 was not a bona fide plan. It was suggested that this idea came into the plaintiff's head after the judgment in Bhulan Singh's case, : AIR1950Cal74 had been pronounced and only for the purpose of getting advantage of that judgment. There is nothing to support this suggestion. I have seen the plaintiff in the box and I have been impressed with the manner in which he has given evidence. I cannot believe that a man of his type and an eminent physician of his standing would be capable of doing anything so low. Even if it were so, as I am satisfied that the plaintiff does intend to build according to the last plan and that is enough to satisfy the provisions of the Act and under them he would still be entitled to possession even if that judgment had put the idea of rebuilding into his head. So long as the plaintiff needs possession for rebuilding and does intend to rebuild it is immaterial to enquire how that intention was generated. Further, in my opinion, there is no substance in this contention also because even on the suit as originally framed, that is to say, even if the plaintiff had to rely on rebuilding according to the first plan he would have proved sufficient bona fide requirement for rebuilding within the meaning of the Act. That rebuilding would have involved the building of the staircase through the defendant's flat and also taking down the floor of the room in the defendant's flat in the space meant for the lift shaft. A suggestion was made that the plaintiff could carry on these operations while the defendant remained in possession. In my view, this consideration is irrelevant. The question that I have to decide is whether the plaintiff bona fide requires the demised premises for rebuilding and if he does he is entitled to a decree for possession of such premises that is to say the whole of it. The plaintiff could not have carried out any of the rebuilding operations in the flat occupied by the defendant unless he got possession at least of the portions which he required. As the Act does not contemplate decree for partial possession, as soon as she is found to require possession of any portion of it, he becomes entitled to a decree for the possession of the whole. The plaintiff could carry on the rebuilding with the defendant's permission but the Act does not contemplate such a position. It gives the plaintiff the right to a decree for possession if he requires possession for rebuilding and if he requires to rebuild he does so in his own right, that is to say, without depending on the defendant's permission. I may also add that in view of the rebuilding that has to be carried out under the last plan, a very large portion of the flat would be required by the plaintiff and what would be left of it would be more or less impossible for anyone to live in.
15. I also desire to state that I find myself in complete agreement with what Banerjee J. said in Bhutan Singh's case, : AIR1950Cal74 that the reasonableness of the requirement is a question of fact to be determined at the hearing. So that it makes no difference that the last building plan was contemplated after the suit had been filed. It is enough that at the time the suit comes up for hearing that plan is available to show bona fide requirement for rebuilding. The section does not bar a suit for ejectment. It only bars a decree for possession unless the case comes within the proviso. This to my mind means, so comes at the time the decree is to be passed. There can, therefore, be no objection taken to the suit on the ground that when it was filed the rebuilding according to the last plan was not in contemplation. (After discussion of further evidence the judgment proceeds : )
16. On the evidence, therefore, I am fully satisfied that the plaintiff requires the flat occupied by the defendant bona fide and for the purpose of rebuilding.
17. I now come to the next objection to this suit, namely, that the notice to quit has been waived. It appears that the notice to quit expired at the end of March 1949. There is a receipt dated 6-4-1949, in respect of the rent for April 1949 signed by the plaintiff which is in the following terms :
205. Calcutta 6-4-49.
'Received with thanks from Mr. Man Singh the sum of Rupees Two hundred and fifty only, being the rent inclusive of municipal taxes for the month of April 1949 for the use and occupation of Flat No. 4, of premises P. 32 Scheme 40 C. I. T. Ganesh Chandra Avenue.'
Receipts in precisely similar forms for certain prior months and for the subsequent months right up to January 1950 signed by the plaintiff were also produced. The plaintiff has admitted that these receipts were granted by him in respect of rent paid by the defendant as stated in the receipts. It will be remembered that the suit was filed on 12-4-1949.
18. Learned counsel for the defendant has contended that the acceptance of rent amounted to waiver of the notice to quit. There can be no doubt that ordinarily acceptance of rent is excellent evidence from which an inference can be drawn that the notice to quit has been waived. The substance of the matter, however, as now appears to be finally settled, is that in order that a notice to quit may be said to have been waived there must be proof of an agreement between the landlord and the tenant to treat the tenancy as having been revived. The matter is very clearly brought out in the judgment delivered by Lush J. in Dames v. Bristow, (1920) 3 K. B. 428 : (123 L. T. 655). At p. 438 of the report the learned Judge expressed himself thus:
'When once the notice to quit has expired the position of the parties is precisely the same as it would be if the original lease had provided for the determination of the term on the date mentioned in the notice. There is in that ease no room for election by the landlord. The landlord and the tenant may of course agree that a new tenancy shall be created on the old terms, and that is what in effect they do when they agree that the notice to quit shall be waived but the agreement to continue the tenancy must be proved. It must be shown that the parties were ad idem as to the terms.'
This case received full support of Lord Goddard C. J. and the judges associated with him is the case of Clarke v. Grant, (1949)-1 ALL E. R. 768. In this case Goddard C. J. said :
'Therefore, the tenancy having been brought to an end by a notice to quit, a payment of rent after the termination of the tenancy would only operate in favour of the tenant if it could be shown that the parties intended that there should be new tenancy. That has been the law ever since it was laid down by the Court of King's Bench in Cheney v. Batten where Mansfield L. J. said, (1 Cowp. 245) : 'The question therefore is quo amimo rent was received and what the real intention of both parties was '? '
The case of Clarke v. Grant, (1949-1 ALL E. R. 768) expressly overruled Hartell v. Blackler, (1920)-2 K. B. 161 : (89 L. J. K. B. 838) where it had been held that payment and acceptance of rent for a period subsequent to the expiry of the notice to quit was conclusive evidence of an agreement to treat the tenancy as continuing. In Clarke v. Grant, (1949-1 ALL E. R. 768) though there was payment of rent by the tenant and acceptance of such rent by the landlord's agent, the landlord was permitted to show that his agent had accepted the rent by mistake. On the mistake being shown, it was held that there could have been no agreement to continue the tenancy and hence the acceptance of rent did not constitute waiver of the notice to quit.
19. It is, therefore, clear that, in order to establish waiver of a notice to quit, the party desiring to do so, must prove that the landlord and tenant had entered into a new agreement to treat the lease as continuing. That is also, to my mind, the way that Section 113, T. P. Act, dealing with the waiver of a notice to quit must be read. That section says that the notice to quit is waived with the consent of the person to whom it is given by an act of the person giving it showing an intention to treat the lease as subsisting. One, therefore, finds that in order to apply Section 113 a consent on the part of the person receiving the notice, to the waiver of the notice that is to say the continuation of the tenancy has first to be established. There has also to be established an act on the part of the person giving it showing the same intention, that is to say, an intention to continue the tenancy. That, of course, is nothing but proving an agreement--an agreement on both sides to continue the tenancy or treat the lease as subsisting.
20. The question, therefore, is, is there enough evidence in this case that the plaintiff and the defendant entered into an agreement to treat the lease as subsisting. Learned counsel for the defendant suggested that the rent receipts would themselves be such evidence. I am unable to agree. The Rent Control Act, which I have already mentioned, does create a great deal of difference. Without the Rent Control Act, when a person pays something as rent, there can be little doubt that he wishes to continue on the premises as a tenant, and if the landlord accepts such payment as rent, he wishes that the tenant should continue as such. Rent under the law relating to landlord and tenant, whether under the Common Law or the Transfer of Property Act, is consideration payable by the tenant for his occupation of a premises under a contract with the landlord. Apart, therefore, from any consideration of the Rent Control Act, payment and acceptance of the rent must necessarily prima facie refer to a contract of tenancy. Kai Khursroo Bazonjee Capadia v. Bai Jerbai . The Rent Control Act, however, as I have already said, makes a difference. It provides that, even after the tenancy in favour of a tenant has been determined, no decree for possession against him can be passed except under certain circumstances, which I need not now consider, provided however, that the tenant goes on paying the rent in respect of his tenancy to the land-lord within a certain specified time. There can be no doubt that when the Rent Control Act uses the word 'rent', it does not mean something which is payable by the tenant to the landlord under the contract of tenancy which, as I have said, is the only meaning of that word under the Common Law as to landlords and tenants or under the Transfer of Property Act. It means a sum, the amount of which is the same as was payable as rent under the contract of tenancy and which the tenant must go on paying to the landlord if he wishes to I avail himself of the benefit of the Rent Control Act and this although the contract of tenancy may have come to an end. When rent is paid under the Act after the contract of tenancy has come to an end and in spite of it, it cannot, of course, be rent payable under that contract.
21. Now keeping this in view, what is the inference that can be drawn from the production of a rent receipt It is possible that when the tenant paid the rent in respect of which the rent receipts were granted, he had in mind the obligation imposed on him by the Rent Control Act, It is possible that he wanted to pay the-rent with a view that the landlord should accept it as rent under the contract of tenancy which has been determined and with a view to renew it. The production of a mere rent receipt does not help to decide under which of the two categories the payment of rent evidenced by the rent receipt falls. It is, as has been said in some of the decided cases, an equivocal evidence and, being equivocal, it necessarily is not enough to prove an agreement. For this reason I am unable to hold that the rent receipts that have been produced in this case are sufficient evidence of an agreement to continue the tenancy and so of waiver of the notice to quit. This is also the view expressed by Chagla C. J. in Baldeodas Mahabirprosad v. G.P. Sonavala A. I. R. (35) 1948 Bom. 385 : (50 Bom. L. R. 233). The onus of proving what is called 'waiver of the notice to quit' and what in reality is an agreement is on the party relying on it and the waiver is not proved by the production of a rent receipt only after the Rent Act has come into operation.
(After discussion of the evidence the judgment proceeds:)
22. In these circumstances, I am of opinion that no agreement has been proved to continue the tenancy and, therefore, it has not been proved that the plaintiff has waived the notice to quit.
23. Section 116, T. P. Act, dealing with the effect of holding over by a tenant after the termination of his tenancy does not assist the defendant either. There also the acceptance of rent must be rent paid with a view to create a contract of tenancy and not with a view to come within the protection of the Rent Act for under the Transfer of Property Act rent is the consideration for a contract of tenancy and nothing else. Under that section, rent of the former kind only creates a tenancy. Further, it is clear from the section that the payment of rent there contemplated is one mode of assenting to the possession of the tenant. Now under the Rent Act, the landlord having no power to turn the tenant out, his consent to the continuance of the tenant's possession does not arise. The tenant continues whether the landlord consents or not.
24. Some reliance was placed by the defendant on Section 21, Rent Control Act, to show that even under that Act payment and acceptance of rent amounted to a waiver of the notice to quit. That section provides that
'when a landlord accepts rent .... sent by postal money order by a tenant Under Section 12 or by the Controller under Sub-section (3) of Section 19 or withdraws any rent deposited Under Section 19, the fact of this acceptance shall not be used in any way as evidence .... that he has waived any notice to quit, given by him to the tenant.'
It is argued that the section impliedly enacts that acceptance of rent in any other manner would be evidence of waiver of the notice to quit. This argument is fallacious. The section only lays down that certain evidence will not be admissible to prove waiver of the notice. It does not say whether that evidence would have proved the waiver but shuts it out in limine. It is not concerned with what amounts to a waiver of the notice to quit or what evidence is sufficient to prove it. The law as to waiver of notice to quit is left wholly untouched excepting that something which might have been evidence of waiver is declared not to be admissible in any event as such. It is impossible, therefore, to deduce from the section that something which would not in any event have been waiver is now a waiver. To come to that conclusion it would have to be held that what is not waiver under the general law is waiver under the section. That would be absurd. The section clearly does not lay down what would amount to waiver and it cannot by implication be allowed to add to the law of waiver. A somewhat similar question arose in Shuter v. Hersch, (1922) l K. B. 438 : (91 L. J. K. B. 263). The English Increase of Rent and Mortgage Interest (Restrictions) Act, 1920 by Section 16(3) provided that the acceptance of rent by a landlord for a period not exceeding three months from the expiration of a notice to quit shall not be deemed to prejudice any right to possession of the premises. It was argued in Shuter's case, (1922-1 K. B. 438 : 91 L. J. K. B. 263) on the strength of this section that acceptance of rent for more than three months invalidated the notice. This argument was rejected. Scrutton L. J. said (at p. 450):
'If, however, Kartell v. Blackler, (1920-2 K.B. 161: 89 L. J. K. B. 838) is not the law and the law is as stated in Davis v. Bristow, (1920-3 K. B. 428 : 123 L. T. 655), there is no reason why it should be taken that acceptance of rent after the expiration of the three months should prejudice the position and create a new tenancy.'
25. In the result, there will be a decree as prayed. The plaintiff will get the costs of this suit. Certified for counsel.