Saturday, 2 July 2022

Whether landlord is deemed to have waived the termination of lease if he accepts rent from tenant after expiry of period of lease?

  In view of the evidence thus obtained and taking

into account the decision in Shanti Prasad Devi’s case

(supra) the High Court held that mere acceptance of the

rent by the landlord after the expiry of the period of

lease would not amount to waiver of the termination of

lease.

IN THE SUPREME COURT OF INDIA

CIVIL ORIGINAL JURISDICTION

PETITION FOR SPECIAL LEAVE TO APPEAL (C) NO.10700 OF 2022

SRI K.M. MANJUNATH Vs SRI ERAPPA. G DEAD THROUGH LRS. 

Dated: June 24, 2022.

1. This Special Leave Petition has been filed assailing

the Judgment and final order dated 19-4-2022 in Civil

Revision Petition No.500/2013 passed by the High Court

of Karnataka at Bengaluru.

2. The Revision Petition was filed challenging the

dismissal of the suit for ejectment passed by the XVth

Additional Judge and Court of Small Causes, Bengaluru.

The schedule property was the Shop bearing No.12 in the

ground floor bearing Khata No.6/1 situated at Erappa

Layout, Banaswadi Main Road, Bengaluru, measuring 13

feet X 24 feet.

3. The petitioner herein, viz., defendant therein, took

up a contention that there was no valid termination of

tenancy as per Section 106 of the Transfer of Property

Act, 1882 (for short ‘TP Act’). The Trial Court upheld

the said contention after analysing the evidence on

record and dismissed the suit on the sole ground that

there was no valid termination of tenancy and hence,

suit for ejectment was not maintainable.

4. Essentially, the contention of the respondents

herein, viz., the legal representatives of the deceased

plaintiff before the High Court in the Revision

Petition, was that in view of Exts. D1 to D7 lease

agreements, which are though unregistered documents, the

period of lease ought to have been held as 11 months. As

per Section 111(a) of the Act, such a lease would

determine by the efflux of time and under such

circumstances notice of termination under Section 106 of

the Act was not required. After taking into

consideration the rival contentions with reference to

the provisions under the Act and the decisions

specifically referred to in the impugned judgment, the

High Court came to a positive finding that it is a case

where tenancy got terminated by efflux of time by

operation of Section 111(a) of the Act and in such

circumstances, in view of the law laid down in the

decision in Shanti Prasad Devi & Anr. Vs. Shankar Mahto

& Ors. reported in AIR 2005 SC 2905 = (2005) 5 SCC 543,

mere acceptance of the landlord after the expiry of the

period of lease would not amount to waiver of the

termination of lease. Obviously, the High Court took

into account lease deeds Exts.D1 to D7 produced in

evidence by the petitioner himself (the defendant in the

suit) and found that they were unregistered and would

reveal that every calendar year the parties went on

executing lease agreements. Ultimately, accepting the

contentions of the respondents herein based on the

evidence on record the High Court set aside the judgment

and decree passed by the Trial Court and partly decreed

the suit. Thereafter, the High Court directed the

petitioner herein to pay arrears of rent at the rate of

Rs.1400/- per month from 01-01-2017 till possession of

the property is handed over and also to handover the

possession of the property to the petitioners therein,

viz., respondents herein, within 60 days from the date

of receipt of copy of the order. It is the said order

passed in revision that is under challenge before us.


5. Heard the Learned Counsel for the petitioner.

6. As noted above, the impugned order was passed by the

High Court in exercise of its power of revision under

Section 18 of the Karnataka Small Cause Courts Act. As

relates the scope of revisional power there can be no

two views that the High Court is empowered to interfere

with findings of fact only if the findings are perverse

or based on no evidence or suffering from error of law

or there has been non-appreciation or non-consideration

of a material on record by the court(s) below. It needs

no reiteration that another view is possible based on

the evidence on record can be no ground for the High

Court to interfere with an order of court(s) below in

exercise of its revisional jurisdiction.

7. In the case on hand, the suit for ejectment filed by

the landlord was dismissed by the Trial Court on the

ground that there was no valid termination of the tenancy

under Section 106 of the TP Act. During the pendency of

the revisional petition filed against the judgment and

decree of the Trial Court, the original revisionist

petitioner – landlord died. Thereupon, the respondents

herein who are his legal representatives prosecuted the

matter and it culminated in the impugned order dated

19.4.2022. The tenant herein was the respondent –

defendant.

8. The High Court rightly observed that in a suit for

ejectment filed by the landlord the material questions

would be whether there was jural relationship of

landlord – tenant between the parties and whether tenancy

was validly terminated. Obviously, the High Court found

that initially the petitioner herein had denied the jural

relationship, but then he himself had set up Ex. D1 to D7

lease agreements. As a matter of fact, there is now

concurrent findings on the question of jural relationship

against the petitioner herein. That apart, that question

need not be taken forward in view of the further

contention take up by the petitioner herein in this

petition, at paragraph 5.4, to the effect that he was

originally inducted as a tenant as per lease agreement

dated 15.2.1989 (Ex. D1) and after the expiry of the

period of the last lease agreement he has been continuing

as a tenant in sufferance and had paid rent till the date

of filing of the suit.

9. In the decision in Smt. Shanti Devi Vs. Amal Kumar

Banerjee (AIR 1981 SC 1550) this court held that before

deciding the validity of notice under Section 106 of the

TP Act the court should first decide whether Section 106

is applicable or not. Further it was held that where a

lease was for a fixed term the court could not take the

pleadings of the parties for determining the nature of

the lease and that the parties could not by their

pleadings alter intrinsic character of lease.

In the case on hand, the obligation to decide on the

aforesaid question unfailingly, was discharged by the

trial court. This has resulted in perverse appreciation

of evidence which led to a conclusion against the weight

of evidence further leading to error of law. In such

circumstances, we have no hesitation to hold that the

High Court was right and justified in re-appreciating the

evidence in exercise of its revisional power.

10. To consider the question whether the issue as to the

requirement or otherwise of issuance of a notice in terms

of Section 106 of the TP Act was available for

consideration by the High Court indisputable facts

obtained from the evidence on record are worthy of

reference. As noticed hereinbefore initially the

petitioner herein and taken up the contention that no

jural relationship of landlord-tenant exits between

himself and the plaintiff viz. the predecessor of the


respondents herein. The fact is that, he himself belied

the said contention by setting up Ext.D1 to D7 lease

agreements. Ext.D1 to D7 agreements are of the years

1989, 1990, 1991, 1992, 1994 and 1995.

11. A scanning of the impugned order passed by the High

Court would reveal that the High Court had appreciated

the contentions as also the evidence on record to decide

on the question of applicability or otherwise of Section

106 of the TP Act. Various decisions of this Court were

also referred to, during that exercise. The trial court

itself took note of the factual contention of the

petitioner herein viz., the tenant that on expiry of

period of lease under Ext.D1 dated 15.02.1989 as per

Ext.D2 lease agreement dated 26.08.1990 the lease was

extended for a period of 11 months upto 25.07.1991. Vide

Ext.D3 lease agreement dated 31.10.1990 it was extended

with effect from 01.11.1990 to 30.09.1991 and as per Ext.

D4 lease agreement dated 31.12.1991 it was extended with

effect from 01.01.1992 upto 30.11.1992. Taking note of

Ext. D1 to D7 and the execution of lease agreement every

year and that the parties have agreed to go by the

provisions of the TP Act the High Court found that the

lease could be taken as lease for a period of eleven

months. In view of the evidence thus obtained and taking

into account the decision in Shanti Prasad Devi’s case

(supra) the High Court held that mere acceptance of the

rent by the landlord after the expiry of the period of

lease would not amount to waiver of the termination of

lease. Relying on a Division Bench decision of the High

Court in M.C. Mohammed Vs. Smt. Gowramma (AIR 2007 KAR

46) rendered relying on the decision in Pooran Chand Vs.

Motilal & Ors. (AIR 1964 SC 461), held that on expiry of

the term fixed under the deed the tenant would not be

entitled to statutory notice under Section 106 of the TP

Act. It was found that on determination of the lease by

efflux of time no further termination of the tenancy by

issuing a statutory notice to bring termination of a

lease already terminated is necessary. Taking into

account the evidence on record the said conclusions the

consequential reversal of the judgment and decree of the

Civil Court cannot be held as perverse or illegal

warranting interference. As the judgment and decree of

the Civil Court was not ‘according to law,’ the High

Court was certainly within its rights to set aside the

decree in exercise of its revisional jurisdiction. The

stated consequential directions by the High Court are

nothing but a necessary sequel of such conclusions and

findings.

12. In view of the above conclusion this Special Leave

Petition must fail as it is devoid of merits.

13. At this juncture learned counsel for the petitioner

requested for grant of sometime for the petitioner to

vacate the premises in question. We grant the petitioners

a reasonable period of six (6) months from today to

handover its vacant and peaceful possession to the

respondents provided the petitioner shall file an

undertaking on affidavit in that regard to this Court,

within three weeks from today. He shall also undertake

thereunder to pay arrears of rent, at the rate of

Rs.1400/- per month and further to pay an amount of

Rs.1400/- on the 7th day of every month during the

extended period. Needless to say that in case of nonfiling

of such an undertaking within the above stipulated

time the benefit granted by this order would cease to

exist and the decree would become executable forthwith

without further reference to the Court.


14. This Special Leave Petition is dismissed as above.

……………………………………………J.

(C.T. RAVIKUMAR)

……………………………………………J.

(SUDHANSHU DHULIA)

June 24, 2022;

New Delhi.


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