T. Koran v. P.A. Rohini

**IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR. JUSTICE A.HARIPRASAD** **FRIDAY, THE 23RD DAY OF FEBRUARY 2018 / 4TH PHALGUNA, 1939** **RSA.No. 45 of 2018** **AGAINST THE DECREE AND JUDGMENT IN AS 21/2016 DATED 09-11-2017 of SUB COURT, HOSDRUG.** **AGAINST THE DECREE AND JUDGMENT IN OS 35/2013 DATED 19-09-2016 of MUNSIFF COURT, HOSDRUG.** ## **APPELLANT/APPELLANT/DEFENDANT :** **T.KORAN, AGED 53 YEARS, S/O.KUTTIYAN, "ATHULYA BOOKS STALL", PERIYA, PERIYA VILLAGE, HOSDURG TALUK, P.O.PERIYA, KASARAGOD DISTRICT.** **BY ADVS.SRI.T.K.VIPINDAS SRI.K.V.SREE VINAYAKAN SRI.K.M.MUHAMMED HUSSAIN.** ## **RESPONDENT/RESPONDENT/PLAINTIFF :** **P.A.ROHINI, AGED 55 YEARS, W/O.KUNHIRAMAN, RESIDING AT PRAVEEN NIVAS, PERIYA, PERIYA VILLAGE, HOSDURG TALUK, P.O.PERIYA, KASARAGOD DISTRICT, PIN-671 316.** **BY ADV. SRI.V.N.RAMESAN NAMBISAN.** **THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 23-02-2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **amk** ## A.HARIPRASAD, J. -------------------------------------- R.S.A No.45 of 2018 -------------------------------------Dated this the 23rd day of February, 2018 ## J U D G M E N T Heard the learned counsel for the appellant and the respondent. 2. Appellant is the defendant in O.S No.35 of 2013 on the file of the Court of Munsiff, Hosdurg. The suit is one for eviction. Appellant is the tenant under the respondent in respect of a shop room described in the plaint schedule. After sending a notice under Section 106 of the Transfer of Property Act, 1882 (for short, T.P.Act), the respondent initiated legal action against the appellant seeking eviction from the tenanted premises. The trial R.S.A No. 45 of 2018 2 court after considering the evidence found that the notice under Section 106 of the T.P Act was valid and eviction was ordered. 3. Aggrieved by the judgment and decree of the trial court, the appellant went in appeal before the Sub Court, Hosdurg as A.S No.21 of 2016. The lower appellate court after considering the materials, agreed with the trial court and dismissed the appeal. Hence, this second appeal. 4. Learned counsel for the appellant contended that the court below failed to consider one fact that pending the proceedings, the respondent had accepted enhanced rent and thereby the notice issued under Section 106 of the T.P Act had been waived. For that reason, the courts below should have dismissed the suit. 5. Per contra, the learned counsel for the respondent/plaintiff contended that no plea has been raised by the appellant in the written statement about waiver of notice. Although, at the stage of evidence, some R.S.A No. 45 of 2018 3 receipts were produced showing sending a higher amount towards rent, that by itself will not cause waiver of notice under Section 113 of the T.P Act. 6. A decision rendered by the Supreme Court in Sarup Singh Gupta v. S.Jagdish Singh and others (2006) 4 S.C.C 205, is pressed into service. The Supreme Court in paragraphs 6 and 8 laid down the law in the following terms : “ 6 . The learned Senior Counsel also relied upon a decision of a learned Single Judge of the Calcutta High Court in Manicklal Dey Chaudhuri v. Kadambini Dassi (A.I.R 1926 Cal 763) : (43 Cal LJ 272) wherein it was held that where rent is accepted after the notice to quit, whether before or after the suit has been filed, the landlord thereby shows an intention to treat the lease as subsisting and, therefore, where rent R.S.A No. 45 of 2018 4 deposited with the Rent Controller under the Calcutta Rent Act is withdrawn even after the ejectment suit is filed, the notice to quit is waived. In our view, the principle laid down in the aforesaid judgment of the High Court is too widely stated, and cannot be said to be an accurate statement of law. A mere perusal of Section 113 leaves no room for doubt that in a given case, a notice given under Section 111 clause (h), may be treated as having been waived, but the necessary condition is that there must be some act on the part of the person giving the notice evincing an intention to treat the lease as subsisting. Of course, the express or implied consent of the person to whom such notice is given must also be established. The question as to whether the person giving the notice has by his act shown an intention to treat the lease as R.S.A No. 45 of 2018 5 subsisting is essentially a question of fact. In reaching a conclusion on this aspect of the matter, the court must consider all relevant facts and circumstances, and the mere fact that rent has been tendered and accepted, cannot be determinative. 8 . In the instant case, as we have noticed earlier, two notices to quit were given on 10-2-1979 and 17-3-1979. The suit was filed on 2-6-1979. The tenant offered and the landlord accepted the rent for the months of April, May and thereafter. The question is whether this by itself constitutes an act on the part of the landlord showing an intention to treat the lease as subsisting. In our view, mere acceptance of rent did not by itself constitute an act of the nature envisaged by Section 113, Transfer of Property Act showing an intention to treat the lease as R.S.A No. 45 of 2018 6 subsisting. The fact remains that even after accepting the rent tendered, the landlord did file a suit for eviction, and even while prosecuting the suit accepted the rent which was being paid to him by the tenant. It cannot, therefore, be said that by accepting rent, he intended to waive the notice to quit and to treat the lease as subsisting. We cannot ignore the fact that in any event, even if rent was neither tendered nor accepted, the landlord in the event of success would be entitled to the payment of the arrears of rent. To avoid any controversy, in the event of termination of lease the practice followed by the courts is to permit the landlord to receive each month by way of compensation for the use and occupation of the premises, an amount equal to the monthly rent payable by the tenant. It cannot, therefore, be said that mere acceptance of rent amounts to waiver of R.S.A No. 45 of 2018 7 notice to quit unless there be any other evidence to prove or establish that the landlord so intended. In the instant case, we find no other fact or circumstance to support the plea of waiver. On the contrary, the filing of and prosecution of the eviction proceeding by the landlord suggests otherwise.” 7. It makes a lot of difference in a case where the landlord received enhanced rent from the tenant after issuance of notice and before filing the suit and a case where the landlord received enhanced rent after filing the suit. In this case, the courts below after considering the relevant provisions of law and the decision on the point correctly held that there is no waiver of notice under law. I find no substantial question of law arising in this appeal. However, considering the facts and circumstances the appellant is R.S.A No. 45 of 2018 8 granted six months time to vacate the premises, on the condition that he shall file an affidavit before the trial court, within a period of three weeks, undertaking that he will vacate the building without making any further claim within the stipulated period. If affidavit is not filed as above, the court below is free to execute the decree. The appellant shall also pay the amount stipulated as compensation for use and occupation of the premises, until he vacates the building. With these observations, the appeal is dismissed. All pending interlocutory applications will stand dismissed. A. HARIPRASAD, JUDGE. amk