O.P.(RC) Nos.102 and 103 of 2021

**C.R.** ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** ## **&** **THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR** **THURSDAY,THE 18[TH] DAY OF NOVEMBER 2021/27TH KARTHIKA, 1943** **OP (RC) NO. 102 OF 2021** **AGAINST THE ORDER DATED 29.07.2021 IN R.C.R.P.NO.1 OF 2021 OF THE ADDITIONAL DISTRICT COURT-I, KALPETTA AND ORDER DATED 29.01.2021 IN E.P.NO.60 OF 2019 IN R.C.P.NO.4 OF 2014 OF MUNSIFF COURT, KALPETTA** ## **PETITIONER:** **KUNIYIL ABDULLA, AGED 70 YEARS S/O.MUHAMMED HAJI, KUNIYIL HOUSE, PINANGODE POST, KALPETTA, VYTHIRI TALUK, WAYANAD-673 122.** **BY ADVS. SRI.B.KRISHNAN SRI.R.PARTHASARATHY** ## **RESPONDENT:** **ABDUL HARIS.K., S/O.KUNHABDULLA, KORAKUNNEL HOUSE, POST KALPETTA, KALPETTA VILLAGE, VYTHIRI TALUK, WAYANAD DISTRICT-673 121.** **BY ADVS. SRI.SRINATH GIRISH SMT.V.NAMITHA** **THIS O.P.(RENT CONTROL) HAVING COME UP FOR FINAL** **HEARING ON 05.11.2021 ALONG WITH O.P.(RENT CONTROL) NO.103 OF 2021, THE COURT ON 18.11.2021 DELIVERED THE FOLLOWING:** 2 O.P.(RC) Nos.102 and 103 of 2021 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **&** **THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR** **THURSDAY, THE 18[TH] DAY OF NOVEMBER 2021/27TH KARTHIKA, 1943** ## **OP (RC) NO. 103 OF 2021** **AGAINST THE ORDER DATED 29.07.2021 IN R.C.R.P.NO.2 OF 2021 OF ADDITIONAL DISTRICT COURT-I, KALPETTA, WAYANAD AND ORDER DATED 29.01.2021 IN E.P.NO.61 OF 2019 IN R.C.P.NO.5 OF 2014 OF THE MUNSIFF'S COURT, KALPETTA** ## **PETITIONER:** **KUNIYIL ABDULLA AGED 70 YEARS S/O MUHAMMED HAJI, KUNIYIL HOUSE, PINANGODE POST, KALPETTA, VYTHIRI TALUK, WAYANAD-673 122.** **BY ADVS. SRI.B.KRISHNAN SRI.R.PARTHASARATHY** ## **RESPONDENT:** **SADHIK @ JAINUSADHICK S/O KUNHABDULLA, KORAKUNNEL HOUSE, KALPETTA POST, KALPETTA VILLAGE, VYTHIRI TALUK, WAYANAD DISTRICT-673 121.** **BY ADVS. SRI.SRINATH GIRISH SMT.V.NAMITHA** **THIS OP (RENT CONTROL) HAVING COME UP FOR FINAL HEARING ON 05.11.2021 ALONG WITH O.P.(RENT CONTROL) NO.102 OF 2021, THE COURT ON 18.11.2021 DELIVERED THE FOLLOWING:** 3 O.P.(RC) Nos.102 and 103 of 2021 ## **C.R.** ## **JUDGMENT** ## Ajithkumar, J. Can waiver be claimed against a statutory obligation? Waiver in legal parlance is an elusive term. It takes shades from the situations. Waiver can be express or implied. Does receipt of unqualified payments by the landlord waive the statutory obligation of the tenant under Section 11(2)(c) of the Kerala Buildings (Lease and Rent Control) Act, 1965 ? This is the short, but interesting question that arises in these Original Petitions. 2. Common revision petitioner is the tenant. He took on rent one shop room belonging to each of the respondents. Respective respondents filed R.C.P.No.4 of 2014 and R.C.P. No.5 of 2014 for eviction of the petitioner. Eviction ordered by the Rent Control Court under Section 11(2)(b) of the Act was confirmed by the Appellate Authority and eventually by this Court. The respondent pursued execution. The Munsiff, Kalpetta in E.P.Nos.60 of 2019 in R.C.P.No.4 of 2014 and 4 O.P.(RC) Nos.102 and 103 of 2021 E.P.No.61 of 2019 in R.C.P.No.5 of 2015 passed Ext. P2 order directing delivery. The petitioner filed R.C.R.P.Nos.1 and 2 of 2021 before the Additional District Judge-I, Kalpetta under Section 14 of the Act challenging Ext.P2 order. Both revision petitions were dismissed and these Original Petitions were filed challenging that order, Ext. P1. 3. Heard the learned counsel Sri.B.Krishnan appearing for the petitioner and the learned counsel Smt.V.Namitha appearing for the respondents in both the cases. 4. There is no much dispute with respect to the factual aspects. R.C.P.Nos.4 and 5 of 2014 were filed by the respective respondent-landlord for eviction under Section 11(2)(b), 11(3), 11(4)(i) and 11(4)(ii) of the Act. The Rent Control Court ordered eviction except under Section 11(4)(ii). The appeals filed by the petitioner-tenant were dismissed. He approached this Court by filing R.C.Rev.Nos.217 of 2018 and 249 of 2018. The same were disposed of as per Order dated 28.11.2018 reversing the order of eviction under Section 11(4)(i) of the Act. This Court confirmed the order of eviction 5 ## O.P.(RC) Nos.102 and 103 of 2021 under Section 11(2)(b), but remitted the matter to the Rent Control Court by a closed remand directing to decide whether the petitioner is entitled to get the benefit of the second proviso to Section 11(3) of the Act. 5. The respondents-landlords filed E.P.Nos.60 and 61 of 2019 in the respective R.C.Ps. for executing the order of eviction under Section 11(2)(b) of the Act as confirmed by this Court. The petitioner resisted the execution petitions by contending that having the R.C.Ps. and Review Petitions filed by him in the R.C.Ps. were still pending the order of eviction could not be executed. The learned Munsiff as per Ext.P2 order dated 29.01.2021 rejected the said contentions and ordered delivery. The matter was taken up before the Additional District Judge-I, Kalpetta by filing R.C.R.P.Nos.1 and 2 of 2021 under Section 14 of the Act. The revisional authority, after hearing both sides, dismissed the revision petitions as per Ext.P1 order, which is under challenge in these Original Petitions. 6. The learned counsel appearing for the petitioner 6 O.P.(RC) Nos.102 and 103 of 2021 raised two points;- (i) would deposit of arrears of rent, interest and costs, unaccompanied by a formal application automatically vacate an order of eviction under Section 11(2) (b) of the Act ?, and (ii) would receipt of money covering arrears of rent, interest and costs, without any demur by the landlord waive his right for eviction as per order under Section 11(2)(b) of the Act ? 7. It is the contention of the learned counsel for the petitioner that this is a case where the principle of law laid down in **Muhammed Kannu Abdul Rasheed v. Nazarudeen and others [2012 (2) KHC 756]** has application. The said judgment was reversed by the Apex Court in appeal and that decision has been reported in **Mohammed Kannu Abdul Rasheed v. Nazarudeen and others [2013 (4) KHC 491].** But, it is contended, the principle laid down in **Muhammed Kannu Abdul Rasheed [2012 (2) KHC 756]** that a formal application and a formal order under Section 11(2)(c) are required to vacate the order of eviction is not an invariable rule has not been touched by the Apex Court. 7 O.P.(RC) Nos.102 and 103 of 2021 8. In **J.Ramachandran Nair v. Lebba Kunju Ammer Hamza [2009 (2) KHC 811]** , a Division Bench of this Court held that a formal application requesting to invoke the power under Section 11(2)(c) of the Act is not mandatory, if, however, the tenant files a memo or statement, showing the payment/deposit of the arrears of rent, interest and costs and the Rent Control Court passes an order under Section 11(2)(c), after giving notice to the landlord will suffice the aforementioned requirement of the said provision. 9. After referring to the said legal proposition, this Court in **Kannu Abdul Rasheed v. Nazarudeen and others [2012 (2) KHC 756]** considered the requirement of such a formal order under Section 11(2)(c) in cases where the court specifically mentioned in the order of eviction that on deposit of the required amount the order of eviction will stand vacated in terms of Section 11(2)(c) of the Act. This Court held that if there is such a self working clause in the order of eviction, no formal application or order under Section 11(2)(c) is necessary. In the light of the said finding and on holding that 8 O.P.(RC) Nos.102 and 103 of 2021 on the last date for the deposit of the required amount, the tenant submitted an application for challan to make deposit and that satisfies the requirements of deposit, the court proceeded to decide that the order of eviction under Section 11(2)(b) was liable to be vacated. 10. The Apex Court in Civil Appeal, wherein the decision in **Kannu Abdul Rasheed (supra)** was challenged, held that the deposit made by the tenant after the due date was insufficient to meet the requirement of Section 11(2)(c), and the fact that the tenant submitted an application for challan on 25.06.2001, the last date for making the deposit was insufficient. As a matter of fact the deposit in that case was made only after 27.06.2001. On that factual aspect alone, decision of this Court in **Kannu Abdul Rasheed (supra)** was reversed by the Apex Court. The principle of law laid down by this Court in that decision that in cases where the order of eviction under Section 11(2)(b) carries a stipulation that on deposit of the arrears of rent, interest and costs, the order of eviction would stand vacated even without 9 O.P.(RC) Nos.102 and 103 of 2021 any formal application by the tenant and the formal order by the Rent Control Court stands unaffected. 11. Coming back, in order to decide whether the petitioner made deposit of the required amount within the stipulated time, the following facts, which are undisputed require mention: - i) Rate of rent for each of the petition schedule shop rooms was Rs.4,500/- per month. - ii) When the statutory notice was issued, rent in arrears was for 37 months. iii) Total amount therefore to be deposited/paid in each case was (Rs.45,000/- x 37) Rs.1,66,500/Interest Rs.14,670/Costs Rs.2,233/- **Total Rs.1,83,403/-** The amounts paid by the petitioner in each case before the relevant date, i.e., 28.12.2019 and immediately thereafter are:- |Date|Amount| |---|---| |24.11.2014|Rs.42,750/-| |15.09.2015|Rs.42,750/-| |21.02.2017|Rs.58,500/-| ||Rs.1,44,000/-| |10.01.2019.|Rs.45,000/-| 10 O.P.(RC) Nos.102 and 103 of 2021 12. When Rs.1,83,403/-, which was the amount of arrears of rent claimed as per the statutory notice, along with interest and costs, was due, the total amount paid before 28.12.2018, the due date, was Rs.1,44,000/-. Suffice it to say that the amount paid was insufficient to meet the requirement of Section 11(2)(c) of the Act. Therefore, the contention of the learned counsel for the petitioner based on the first point can only be found in the negative and we do so. 13. This takes us to the question whether by receiving Rs.45,000/- on 10.1.2019 the landlord waived his right to execute the order of eviction under Section 11(2)(b) of the Act. No doubt, adding that amount to the payment of Rs.1,44,000/- made prior to 28.12.2018, the total would be the sufficient amount. Undisputedly, there are subsequent payments as well. The learned counsel appearing for the petitioner contended that the respondent consciously received such payments and thereby he forwent his right to get vacant possession of the building. He argues that the principle of 11 O.P.(RC) Nos.102 and 103 of 2021 waiver; if not express, implied waiver applies to the situation for which he placed reliance on the following passage from Willston on Contracts at 39:30 (4[th] edition). “An implied waiver of nonperformance under a contract will be established by a party's conduct inconsistent with the assertion of the right to the performance allegedly waived, or by conduct that indicates that strict compliance with the contract will not be required, provided that the conduct manifests the requisite intent to waive the right to performance or has induced the requisite reliance by the other party.” In Blacks Law Dictionary (8[th] edition) at page 1611 the term is explained, “An implied waiver may arise where a person has pursued such a course of conduct as to evidence an intention to waive a right, or where his conduct is inconsistent with any other intention than to waive it.” 14. In **State of Punjab v. Davinder Pal Singh Bhullar [(2011) 14 SCC 770]** doctrine of waiver was explained. That waiver is an intentional relinquishment of a right. It involves conscious abandonment of an existing legal 12 O.P.(RC) Nos.102 and 103 of 2021 right, advantage, benefit, claim or privilege, which except for such a waiver, a party could have enjoyed. In fact, it is an agreement not to assert a right. It was further explained that there can be no waiver unless the person who is said to have waived, is fully informed as to his rights and with full knowledge about the same, he intentionally abandons them. 15. A three-Judge Bench of the Apex Court in **Kalpraj Dharamshi v. Kotak Investment Advisors Ltd.** [ **2021 SCC Online SC 24: 2021 KHC 6157]** observed that for constituting **waiver** it must be established, that though a party knows the material facts and is conscious of his legal rights in a given matter, but fails to assert its rights at the earliest possible opportunity, it creates an effective bar of **waiver** against him. 16. The question then crops up is that whether the obligation cast on the petitioner to surrender vacant possession of the building by operation of the provisions of Section 11(2)(c) of the Act could be waived. 17. The question as to, can the statutory right of a 13 O.P.(RC) Nos.102 and 103 of 2021 person be waived was considered by this court in **Haroon v. Sainabha [1992 (1) KLT 868]** . The contention raised was that the wife and child cannot claim maintenance from the husband because in an earlier proceedings the matter was settled out of court and the wife had executed an agreement in favour of the husband whereby all the disputes regarding maintenance were permanently settled. This Court repelled the contention holding that there is statutory obligation of the husband to maintain his wife and minor son and he cannot be permitted to contract out of such an obligation and such agreement is opposed to public policy. It was held that a waiver in derogation of a statutory right cannot be recognised by the court as it affects public policy and as it is against the very statutory obligation imposed on a husband to maintain his wife and children who are unable to maintain themselves. 18. In **Shalimar Tar Products Ltd. v. H.C. Sharma [(1988) 1 SCC 70]** and **Pulin Behari Lal v. Mahadeb Dutta, [(1993) 1 SCC 629]** the Apex Court took the view that a bald plea of waiver cannot defeat statutory provision 14 O.P.(RC) Nos.102 and 103 of 2021 made in larger public interest. It is explained in the Interpretation of Statutes by N.S. Bindra, 6[th] Edition, page 133, "Any one may waive or renounce the benefit of a principle or Rule of Law that exists only for his protection". Every one has a right to waive and agree to waive the advantage of a law or rule made solely for the benefit and protection of the individual in his private capacity, which may be dispensed with without infringing any public right or public policy. 19. What emanates from the above is that a private right created by operation of a statutory provision can be waived by the person in whose favour and benefit that right has been created and accrued, provided there is no violation of any public right or public policy. Can it be said that once an order of eviction has become final the landlord can grant concession so as to make the order nugatory? The petitioner should have deposited or paid the whole amount latest by 28.12.2018. He did not. The order of eviction under Section 11(2)(b) of the Act became absolute by such default. Even the 15 O.P.(RC) Nos.102 and 103 of 2021 Court becomes functus officio thereafter. It is certainly a matter of public policy and a party cannot be allowed to tinker with the order. We are of the firm view that the tenant cannot take shelter to the plea of waiver by making payments subsequent to the date on which the order of eviction under Section 11(2)(b) of the Act has become final. It may be remembered that what the respondent received is only rent due to him even otherwise. 20. That apart, the facts are such that it is not possible for the petitioner to bank upon the plea of waiver in this case. In **Jayesh H. Pandya v. Subhtex India Ltd. [2019 SCC Online SC 1101]** a three-Judge Bench of the Apex Court considered application of the doctrine of waiver in a situation where no opportunity for choice between the relinquishment and an enforcement of the right in question does not exist. It was a case where parties agreed as per the agreement to fix a period for conclusion of the arbitral proceedings without a provision for extension of time and if not concluded within that time to terminate the proceedings. There was thus no 16 O.P.(RC) Nos.102 and 103 of 2021 opportunity for choice between the relinquishment and enforcement of the right in question existed in the agreement. It was held that the essential element of waiver is that there must be a voluntary and intentional relinquishment of a right. The voluntary choice is the essence of waiver and in the absence of such choice there could be no waiver. 21. In **Associated Hotels of India v. Ranjit Singh [AIR 1968 SC 933]** at page 937, it was categorically held that there can be no waiver unless the person against whom the waiver is claimed had full knowledge of his rights and of facts enabling him to take effectual action for the enforcement of such rights. A waiver, therefore, is the result of an intentional relinquishment of a known right. 22.Here is a case where the respondents-landlords was never told that payments made before or after 28.12.2018 were towards the payments to be made by the tenant in terms of the order of eviction under Section 11(2)(b) of the Act. Having regard to the discussion made above, we hold that acceptance of rent by the landlord after the forfeiture of a 17 ## O.P.(RC) Nos.102 and 103 of 2021 lease on account of the failure by the tenant to accomplish his statutory obligation under Section 11(2)(c) of the Act would not amount to waiver, either express or implied. This contention of the petitioner also fails. In such circumstances, we hold that Ext.P1 does not suffer from any illegality, requiring interference under Article 227 of the Constitution of India. Accordingly, we dismiss the original petitions. **SD/-** **ANIL K. NARENDRAN, JUDGE** **SD/-** **P.G. AJITHKUMAR, JUDGE** dkr 18 O.P.(RC) Nos.102 and 103 of 2021 ## **APPENDIX OF O.P.(RC) NO.102 OF 2021** **PETITIONER EXHIBITS Exhibit P1 TRUE COPY OF THE ORDER IN RCRP NO.01 OF 2021 OF THE ADDITIONAL DISTRICT COURT, KALPETTA, WAYANAD DATED 29.07.2021. Exhibit P2 TRUE COPY OF THE ORDER OF THE MUNSIFF COURT, KALPETTA IN EP NO.60 OF 2019 DATED 29.01.2021. Exhibit P3 TRUE COPY OF THE ORDER OF THE RENT CONTROL APPELLATE AUTHORITY IN APPEAL RCA NO.11 OF 2019 DATED 29.07.2021.** 19 O.P.(RC) Nos.102 and 103 of 2021 ## **APPENDIX OF OP (RC) NO.103 OF 2021** **PETITIONER EXHIBITS Exhibit P1 TRUE COPY OF THE ORDER OF THE ADDITIONAL DISTRICT COURT, KALPETTA, WAYANAD IN RCRP NO.2 OF 2021 DATED 29.7.2021 Exhibit P2 TRUE COPY OF THE ORDER OF THE MUNSIFF COURT, KALPETTA IN EP NO.61 OF 2019 DATED 29.1.2021 Exhibit P3 TRUE COPY OF THE ORDER OF THE RENT CONTROL APPELLATE AUTHORITY IN APPEAL RCA NO.12 OF 2019 DATED 29.7.2021**