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.

12. In view of the above conclusion this Special Leave

Petition must fail as it is devoid of merits.

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.

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Whether it can be inferred that new tenancy is created if second quit notice is issued?

 In the judgment rendered by Orissa High Court in Bhagabat Patnaik vs. Madhusudhan Panda, Section 113 has been interpreted to hold that since a valid notice to quit a lease or to determine a tenancy cannot be waived without the assent of the Landlord and the tenant both, the question as to whether such consent can be implied by acceptance of rent by the Landlord depends on the facts and circumstances of the case. An English Authority in Lawenthanfal vs. Banhoute 1947 (1) All England Law Report, page 116 was quoted to say that a new tenancy cannot be inferred on the issuance of second notice. It is in this context that it was observed that "a subsequent notice to quit is of no effect." It was held that a tenancy is not revived by anything short of a new tenancy and in order to create a new tenancy there must be an express or implied agreement to that effect.

26. The mere fact that the tenant continues in possession and rent is accepted and the suit is not instituted are insufficient circumstances for inferring an intention to create a new tenancy after expiration of the first. An english commentary "Landlord and Tenant", was quoted by the High Court thus:

"Generally speaking, giving a second notice to quit does not amount to a waiver of a notice previously given unless, with other circumstances, it is the basis for inferring an intention to create a new tenancy after the expiration of the first."

27. To the same effect are the decisions of the Punjab & Haryana High Court in Shiv Jeet Singh vs. Charan Singh (supra) and Bombay High Court in Nanaji Gajanan Upganlawar vs. Shabbir Husain Fida Hussain (supra). The illustrations to Section 113 of the Transfer of Property Act were considered and it was observed that merely because a second notice was given, the first notice cannot be deemed to have been waived. To create a new tenancy, there must be an express or an implied agreement to that effect, and such agreement cannot be unilateral. It has to be bilaterally agreed between the tenant and the landlord for extension of lease.

28. This High Court in Post Master General vs. District Judge (supra) and Waqf Allal Aulad (supra) has observed that the tenancy would stand terminated on the expiry of the notice period. The Landlord would be justified in receiving the rent for the notice period from the date of service of notice. But merely acceptance of such rent could not be treated as an implied or express consent to treat the lease/tenancy as subsisting on the part of the Landlord. If the Rent Control Act does not apply, then the tenant is liable to be simply evicted after termination of tenancy default or no default in payment of rent, it is wholly immaterial.

29. In a Full Bench decision in Gokaran Singh vs. 1st Additional District Judge (2000) 40, ALR 405, this Court had observed that even if Rent Control Act applies and in the notice a wrong period of default and a wrong rate of rent is mentioned, still notice does not become invalid.

30. In the facts and circumstances of the case as have been referred to in the impugned judgment dated 01.10.2011, the Trial Court has treated the First Notice dated 10/20.02.1998 as subsisting because the Landlord did not file the suit for ejectment in pursuance of the first notice but gave a second notice and then filed the suit. The learned Trial Court has observed that the second notice given again was an invalid notice, the suit for ejectment based thereon was liable to be rejected and has rejected the same.

31. This kind of reasoning can only be said to be perverse. In Swaroop Singh Gupta vs. S. Gagdish Singh (supra) the Supreme Court has observed that mere acceptance of rent for the period in between the issuance of two notices to vacate would not itself constitute an act on the part of the Landlord showing an evidence to treat the lease as subsisting. The fact remains that even after accepting the rent tendered the landlord filed a suit for eviction. It cannot therefore be said that by accepting the rent he intended to waive the notice and to treat the lease as subsisting. The second notice after which the suit was filed for ejectment was not treated as illegal by the Supreme Court only because the first notice to quit was held as determining the tenancy without creating a new tenancy, by the act of the Landlord to accept the rent in the meantime.

IN THE HIGH COURT OF ALLAHABAD

Civil Revision No. 564 of 2011

Decided On: 22.11.2018

Praveen Kumar Jain Vs.  Jagdish Prasad Gupta and Ors.

Hon'ble Judges/Coram:

Sangeeta Chandra, J.

Citation:  2019 (132) ALR 357

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Whether tenant has deemed to have waived objection to validity to quit notice if he has not replied to said notice?

 First, when the Appellant sent a quit notice dated 17.05.2012 to the Respondent Under Section 106 of the TP Act determining the tenancy and calling upon the Respondent to pay the arrears of rent and vacate the suit premises, despite receipt of the quit notice, they did not reply to it.

57. In our view, the Respondent ought to have replied to the notice at the first available opportunity, which they failed to do so. It amounts to waiver on their part to challenge the invalidity or infirmity of the quit notice including the ownership issue raised therein.

58. In the case of Parwati Bai v. Radhika MANU/SC/0372/2003 : AIR 2003 SC 3995, the question arose as to whether the tenancy was terminated in accordance with the provisions of Section 106 of the TP Act. The Defendant despite receiving the notice from the Plaintiff did not reply to it.

59. This Court held that if the Defendant does not raise any objection to the validity of quit notice at the first available opportunity, the objection will be deemed to have been waived. The following Para 6 of the decision is apposite which reads as under:

6. The singular question to be examined in the present case is whether the tenancy was terminated in accordance with the provisions of Section 106 of the Transfer of Property Act. The receipt of notice by the Defendant is admitted in the written statement. The Defendant has not raised any specific objection as to the validity of the notice. An objection as to invalidity or infirmity of notice Under Section 106 of the TP Act should be raised specifically and at the earliest; else it will be deemed to have been waived even if there exists one. It cannot, therefore, be said that the notice in the present case suffered from any infirmity. A copy of the notice was exhibited and proved by the Plaintiff as Ext. P-4.

IN THE SUPREME COURT OF INDIA

Civil Appeal No. 4249 of 2018 (Arising out of S.L.P. (C) No. 27775 of 2017)

Decided On: 20.04.2018

Apollo Zipper India Limited Vs. W. Newman and Co. Ltd.

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Whether it is permissible for landlord to waive change of user from residential to commercial use?

The only question which has to be determined, therefore, is whether the tenant is entitled to urge that there is a waiver by the previous landlord of the breach committed by the tenant, inasmuch as for a period of six years from 1960 to 1967, the landlord has accepted rent without any protest and whether this would mean that breach has been waived and, according to the learned counsel, the present plaintiffs cannot take advantage of that breach since it has already been waived by the previous landlord. This argument was founded on a decision of the Punjab High Court in M/s. New Garage Ltd. v. Khuswant Singh & another MANU/PH/0024/1952 : AIR (1952 P&H. 82, where dealing with provisions of section 9(1)(b) of the Delhi & Ajmer Merwara Rent Control Act, the Division Bench took the view that the effect of section 9(1)(b) of that Act was that if it was proved that by consent of the landlord premises have been used for purposes other than that for which they were let, a landlord will not have the right of ejectment. It was held that the consent may be either express or implied and, therefore, section 9(1)(b) would be defeated by waiver on the part of the landlord if it is proved that by his past conduct he had consented to a particular breach of the covenant with regard to user of the premises. Section 9(1)(b) of that Act provided as follows:--

9. (1) Notwithstanding anything contained in any contract, no Court shall pass any decree in favour of a landlord, or make any order, in favour of a landlord whether in execution of a decree or otherwise, evicting any tenant, whether or not the period of the tenancy has terminated, unless it is satisfied either.

* * * *

(b) that the tenant without the consent of the landlord, has whether before or after the commencement of this Act,

(i) used the premises for a purposes other than that for which they were let, or

Now, while it may not be possible to quarrel with the proposition-laid down in the Punjab decision, the ratio of that decision cannot be applied with full force in the present case in view of the provisions of section 25 of the Bombay Rent Act on which reliance has been placed by Shri Gumaste appearing on behalf of the landlord. Section 25 of the Bombay Rent Act is as follows :--

25. (1) A landlord shall not use or permit to be used for a nonresidential purpose any premises which on the date of the coming into operation of this Act were used for a residential purpose.

(2) Any landlord who contravenes the provisions of sub-section (i) shall, on conviction, be punishable with imprisonment for a term which may extend to three months or with fine or with both.

Shri Abhyankar has contended that section 25 is merely a penal provision and will not come in the way of the defendant if he wants to prove a waiver by the landlord. Now, it is clear on the reading of provisions of section 25 that it is in two parts. The first part is prohibitory in character and operates as an injunction against the landlord and prevents him from using or permitting to be used premises which are used for a residential purpose on the date of the coming into operation of the Rent Act to be used for a non-residential purpose. The object appears to be that the accommodation which is available for residential purposes should not be allowed to be reduced by unilateral action on the part of the landlord either by using it or by allowing it to be used for a non-residential purpose. Sub-section (2) of section 25 prescribes the penalty for a contravention of sub-section (1). Now, while it may not be disputed that a right of termination of lease flowing out of a breach or the lease by the tenant can be waived by the landlord if he does not want to exercise this right. In so far as the provisions of the Rent Act are concerned, the right of the landlord to allow the premises to be used for any other purpose in a case where the premises were originally taken for residential purposes is now controlled or indeed taken away by the provisions, of section 25(1). Any waiver which is bound ultimately to result in either temporary or permanent change in the user of residential premises for nonresidential purposes is bound to defeat the provisions of section 25 (1) which has clearly been enacted on the ground of public policy. Any contract between the landlord and the tenant whether expressly made or inferred by implied consent would, therefore, be only impermissible in a case where residential premises are sought to be used or allowed to be used for non-residential purposes in view of the imperative character of section 25 (1). In such a case, there is no question of any waiver because if a landlord cannot legally do anything expressly, the same result could not be brought about by implication. Thus, there is clear indication in section 25 (1) that a tenant cannot be permitted to use residential accommodation for non-residential purpose either by express permission or by permission granted impliedly and in such a case, it is not open, therefore, to the tenant to contend that the landlord has waived the breach so as to defeat his right under section 13 (1) (a) of the Bombay Rent Act, It is not, therefore, possible to accept the contention that the landlord has waived the breach.

11. It was then contended that the house is of 30 khans and only accommodation to the extent of 10 khans is being utilised for non-residential purposes and, therefore, the dominant use of the premises continued to be for residential purposes and consequently section 25 (1) will not be affected. Having regard to the nature of the provisions of section 25 (1) and its object, in my view, the question of either dominant use or ancillary use of the premises becomes wholly irrelevant. Even otherwise so far as the present case is concerned, mere extent of the accommodation will not be very relevant. 

IN THE HIGH COURT OF BOMBAY

Spl. C.A. No. 561 of 1977

Decided On: 21.08.1981

Bansilal Rampratap Rathi Vs.Suratsing Chandanmal and others

Hon'ble Judges/Coram:

M.N. Chandurkar, J.

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Whether it is necessary to issue notice as per S 106 of Transfer of property prior to filing of eviction suit?

When the tenant cannot be evicted unless the grounds are made out and the conditions laid down under Section 16 of the Maharashtra Rent Control Act are fulfilled, there would be no dual requirement one of issuance of notice under Section 106 of the Transfer of Property Act and then making out aground under that section for eviction. Of course, a special provision can be made in a Rent Act requiring the issuance of a notice under Section 106. of the Transfer of Property Act, as it was there in C.P. and Berar Letting of Premises and Rent Control Order, 1949. But in Maharashtra Rent Control Act there is no such provision. In view of the above discussion the notice under Section 106 of the Transfer of Property Act was not necessary in the present case.

The Counsel for defendant/revision petitioner vehemently argued that the notice under Section 106 of the Transfer of Property Act was actually issued by the plaintiff'/respondent and thereafter the rent was accepted which amounts to waiver. However, when the notice itself was redundant there was no question of any waiver.

IN THE HIGH COURT OF BOMBAY (NAGPUR BENCH)

Civil Rev. Appln. No. 13 of 2003

Decided On: 20.11.2003

 K. Mukta Ashok Khankhoje

Vs.

 Namdeorao Tukaram Khutaphale

Hon'ble Judges/Coram:

S.G. Mahajan, J.

Citation: 2004(2) AllMR 59

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Whether there is waiver of termination of tenancy by acceptance of rent by landlord?

 The next question is as to whether there is waiver
of termination of   tenancy   by acceptance of the rent.
The waiver can occur only when the lessor has treated
the tenancy as subsisting. Mere acceptance of arrears of
rent can not imply that the lessor treated the tenancy as
subsisting unless it can be established as conscious and
deliberate act. There has to be consensus ad idem of the
parties  to treat the lease as subsisting or reestablish the
relationship   of   the   landlord   and   tenant.   Mere
acceptance of rent, therefore, without the intention to
treat   the   lease   as   subsisting     would   not   amount   to
waiver.   The   acceptance   of   rent   may   be   without

prejudice to the rights and contentions in the notice, it
does     not   amount   to     waiver.   Waiver   has   to   be   a
deliberate and conscious act on the part of the landlord
to treat the contractual tenancy­lease as subsisting. If
the eviction suit is continuing even after acceptance of
the rent it indicates that the landlord has no intention to
waive the quit notice because landlord has elected to
continue   with   the   eviction   proceedings   in   order   to
recover possession from the lessee.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH, NAGPUR
SECOND APPEAL NO.427 OF 2002

Narendra Vyankatesh Tambat,V Pravinkumar Khushalchand Tated,


Dated    :  9.7.2015.
                                   
      CORAM     :  A.P.BHANGALE,  J.
Citation;2016(1) ALLMR 25

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