1. This is an appeal by the defendant Company in a suit for damages for destruction of a godown and buildings. The damages were assessed by the plaintiff at Rs. 5,000; a decree has been made in his favour for Rs. 3,500. The plaintiff was a lessee under the defendants and the crucial point in the litigation is, whether his tenancy had been terminated in accordance with law at the date when the godown and the buildings erected by him on the land covered by the lease were destroyed. The Subordinate Judge has answered this question in favour of the plaintiff and we feel no doubt that the view taken by him was correct.
2. The terms of the tenancy are embodied in two documents, dated the 16th December, 1912. The eighth paragraph of the first document states that the Company would give three months' notice in writing to the lessee to deliver up the land and premises leased. The second paragraph of the second document states that the lessee would, during the continuance of the lease, pay to the company the rent reserved and pay the same in advance in such number of monthly instalments, not exceeding six as the Company might direct. The fifth paragraph further provides that the lease might be terminated by either party at any time by three months previous notice in writing sent to the other party by registered post at his or their last known address. On the 23rd February, 1917, the Agent of the Company wrote a letter to the plaintiff, stating that throe months notice was given under Clause (5) of the agreement and the lessee was requested to arrange to vacate the site by the 31st May, 1917. It is not disputed that this was a good and sufficient notice which made it obligatory upon the tenant to quit the premises by the date specified. Thereupon, correspondence took place between the parties; but it is not necessary to make a detailed reference to the letters for the purpose of the decision of the question raised before us. On the 7th July 1917, that is, after the expiry of the period covered by the notice, the Agent wrote to the lessee again. This letter states that the three months' notice had expired and yet the tenant had not vacated the site. Then follows this passage.
I now give you formal notice to vacate the site and to demolish your buildings and to remove your property from Railway land and to restore the site to its former condition. In the event of your failure to do so by the 31st instant, the buildings will be demolished and the ground restored to its former condition at your cost.
3. Four days later, the Agent addressed the following letter to the lessee:
I understand that you have not paid any occupation fee for the land in question since that due for the month of December 1916, although repeatedly asked for it by the Station Master, Gondia and that a sum of Rs. 37-8-0 is due from you up to the 31st May, 1917 at the rate of Rs. 7-8-0 per mensem. The occupation fee, as you are aware, is strictly payable in advance and should have been paid long ago. However, I now ask you to remit the amount forthwith to our Chief Auditor and advise me of your having done so. Rent is also recoverable for the period during which you hold over after the expiry of your notice to quit, and I hereby call upon you to pay the amount at the rate of Rs. 7-8-0 a month from 1st June 1917 to the data of actual vacation.
4. On the 16th July 1917, the plaintiff remitted Rs. 90 to the Chief Auditor of the Railway Company with the following intimation.
We beg to send you enclosed herewith Rs. 90 in payment of the occupation fee for the laud for one year from 1st January 1917 to 31st December 1917.' The next day the Chief Auditor sent a receipt in the following terms:
Received from Mr. Balmukund the sum of Rupees ninety only on account of occupation fee of land at Gondia from January to December 1917.
5. On the 24th July 1917, the lessee sent the following information to the Agent himself.
With reference to your letter dated the 11th July 1917 we beg to inform you that we have already remitted Rs. 90 in payment of the occupation fee for the land at Gondia for the current year to your Chief Auditor, vide his cash receipt dated the 17th July 1917.
6. On the 15th August 1917, the Agent acknowledged receipt of this letter and invited the attention of the lessee to his letter of the 7th July 1917. It was added in this letter that the lessee was required to vacate the site and to demolish the buildings by the 31st July 1917 as a result of the notice served upon him in terms of the letter dated the 23rd February 1917. The lessee was informed that if he did not comply with the notice, the buildings would be dismantled by the company. It was finally added that an account would be prepared crediting the lessee with the value of the materials recovered on dismantling and with the balance of rent paid in advance for the period commencing with the date of the letter, that is, the 15th August 1917 and debiting him with the cost of dismantling. The balance so found, if in his favour, would be paid to him, if in favour of the Railway, it would be recovered from him, The lessee subsequently replied on the 20th August 1917 that as Rs. 90 was deposited in advance as rent for the year then current, he was not liable to be ejected before the end of that year. We need not refer to the correspondence which subsequently followed. An account was made up by the Company of the sale proceeds of the dismantled godown and buildings and a sum of Rs. 34-1-9 was included in the account as the portion of the amount of rent refundable according to the letter of the 15th August 1917. On the 15th August 1918, the plaintiff instituted this suit for damages. The defendant contended that the tenancy had been validly terminated by the notice contained in the letter of the 23rd February 1917. The plaintiff urged, on the other hand, that the fact of acceptance of rent subsequent to the 31st May 1917 operated as a waiver of notice and the tenancy was in force on the 19th September 1917, when the Company proceeded to dismantle the godown and the building. We are of opinion that the contention of the defendant cannot possibly prevail.
7. The principle of law applicable to cases of this character is now well settled. The acceptance of rent due after forfeiture from the lessee--and this notwithstanding the protest of the lessor that such acceptance is without prejudice to his right to insist upon his forfeiture--operates as a waiver of the notice. As an authority for this proposition, it is sufficient to refer to the decision of the House of Lords in Croft v. Lumly (1858) 6 H.L. Cas. 672 : 27 L.J.Q.B. 321 : 4 Jur. (N.S.) 903 : 6 W.R. 523 : 10 E.R. 1459 : 108 R.R. 252, that acceptance of rent in these circumstances constitutes waiver of notice, notwithstanding that the lessor expressly states that he accepts the money as compensation for use and occupation and not as rent and refuses to recognise party paying as his tenant. A similar view was adopted by the Judicial Committee in Davenport v. Queen (1878) 3 A.C. 115 : 47 L.J.P.C. 8 : 37 L.J. 727, which was followed in Rex v. Paulson (1921) 1 A.C. 271 : 90 L.J.P.C. 1 : 124 L.J. 449. The proposition was recognised and applied in Griffin v. Tomkins 42 L.T. 350 : 443 p. 457; Strong v. Stringer (1890) 61 L.T. 470 and Hartell v. Blackler (1920) 2 K.B. 161 : 89 L.J.K.B. 838 : 128 L.T. 171. A tenant whose tenancy had been terminated by notice to quit in the case last mentioned wrote to his lessor enclosing money as and for rent accrued due since the expiry of the notice. The lessor sent on the letter and enclosure to her Solicitors who replied: 'our client does not recognise you as her tenant, and we will retain the money for the time on account of use and occupation of her premises and not as rent.' It was ruled that notwithstanding the terms of the letter, the acceptance and retention of the money operated as a waiver of the notice and constituted a recognition of a continuance of the tenancy. This case was considered in Davies v. Bristowe (1920) 3 K.B 428 : 123 L.T. 655. : 36 T.L.R. 753 and some doubt appears to have been expressed by one of the Judges who was a party to that decision. We must not overlook, however, that the case of Davies v. Bristowe (1920) 3 K.B 428 : 123 L.T. 655. : 36 T.L.R. 753 was governed by the provisions of the Sent Restriction Act, and as pointed out in Shuter v. Hersh(1922) 1 K.B. 438 : 91 L.J.K.B. 263 : 126 L.T. 346 : 20 L.G.R. 148 : 66 S.J. 158 : 88 T.L.R. 127, the effect of that decision is that where a tenant remains in possession after receiving notice to quit, there is no necessity for the landlord to give him a fresh notice to quit before raising the rent to the extent permitted by the statute, unless a new tenancy has been actually created, and the mere fact that the landlord accepts rent after giving the notice to quit cannot be taken as a waiver by him of the notice to quit so as to create a new tenancy. The decision in Evans v. Enver (1920) 2 K.B. 315 : 89 L.J.K.B. 845 : 123 L.T. 328 : 64 S.J. 464; 36 T.L.R. 441 which followed a dictum in Toleman v. Portbury (1872), 7 Q.B. 344 : 41 L.J.Q.B. 98 : 28 L.T. 292 : 20 W.R. 441, was based on its special facts, which have no similarity to those of the present litigation. It may be contrasted with the decision in Penton v. Barnett (1898) 1 Q.B. 276 : 67 L.J.Q.B. 11 : 77 L.T. 645 : 46 W.R. 33 : 14 T.L.R. 11, which was followed in Shah Wali Ahmad v. Hussaini Begum 42 Ind. Cas. 655 : 2 P.l.J. 895 : 2 P.L.W. 52 where Mansur Ali v. Abdul Karim 1 Ind. Cas. 753 : 10 C.L.J. 187 and Padmanabhya v. Ranga 6 Ind. Cas. 447 : 34 M. 161 : 8 M.L.T. 110 : (1910) M.W.N. 462 : 20 M.L.J. 930, were cited in support of the position that though acceptance of rent due prior to service of notice to quit does not operate as waiver, acceptance of rent due subsequent to such notice has the opposite effect.
8. In our opinion, it is plain upon well-settled principles that the tenancy in this case was not terminated on the 31st May 1917 by reason of the acceptance of rent by the landlord from the tenant. In this view no other point arises in this appeal, we see no reason to doubt the correctness of the decision of the Trial Judge upon the question of quantum of damages.
9. The result is that the decree of the Subordinate Judge is affirmed and this appeal is dismissed with costs. We assess the hearing fee at ten gold mohurs.