JUDGMENT
Madan B. Lokur, J.
1. This second appeal was admitted on 25th January, 1983 and the following question of law was framed:-
“Whether the notice terminating the tenancy of the deceased-tenant was waived merely by receipt of rent after service of the notice of eviction?”
2. The father of the Respondents was a tenant in the suit premises bearing No. 1099, Private Flat No. 9, Harsaran Niwas, Railway Road, Shahdra, Delhi. During the life time of the Respondents’ father, the Appellant had issued to him a notice dated 18th January, 1968 (Ex.PW-1/2) under Section 106 of the Transfer of Property Act, 1882 read with Section 14/15 of the Delhi Rent Control Act, 1958. The allegation made in the notice was that the father of the Respondents had not paid rent in respect of the suit premises since 1st September, 1965. It was stated that even otherwise, the Appellant was not interested in keeping the Respondents’ father as a tenant. Accordingly, the tenancy of the Respondents’ father was terminated with effect from 29th February, 1968. The Respondents’ father was called upon to hand over peaceful and vacant possession of the suit premises, but he did not do so.
3. Thereafter, since the premises were in a slum area, the Appellant was required to take permission from the competent authority under the Slum Areas (Improvement and Clearance) Act, 1956 (for short the Slum Areas Act) before filing an eviction petition against the Respondents’ father. Accordingly, the Appellant moved an application seeking permission to file an eviction petition against the Respondents’ father for non-compliance with proviso (a) to clause (1) of Section 14 of the Delhi Rent Control Act, 1958. This application was subsequently withdrawn by the Appellant on 20th April,1974 vide Ex.D-1 which records that the Appellant has compromised the matter with the Respondents’ father and, therefore, may be allowed to withdraw the application under Section 19 of the Slum Areas Act. The Respondents’ father agreed to pay Rs. 100/- per month as rent on the 10th of each month, inclusive of taxes amounting to Rs. 693/- due up to 31st March, 1974. In view of Ex.D-1, the application filed by the Appellant under Section 19 of the Slum Areas Act was dismissed as withdrawn.
4. Thereafter, the Respondents’ father died, according to the Appellant as a statutory tenant. Upon his death, his widow succeeded to the tenancy rights but she also died. The Appellant says that the Respondents had no right to inherit the tenancy from their mother and, therefore, a suit was filed seeking possession of the suit premises and damages for use and occupation, with interest thereon.
5. The Respondents, of course, denied the averments made by the Appellant and contended that they were tenants in the suit premises.
6. On the basis of the pleadings, the learned Sub Judge First Class framed the following issues:-
1. Whether the defendants are tenant in the suit premises?
2. Whether the jurisdiction of this court is barred as alleged?
3. Whether the tenancy of Sh. Sunder Lal was validly terminated during his life time if as its effect?
4. Whether the plaintiff is entitled to the relief of possession?
5. To what amount if the plaintiff is entitled?
6. Whether the suit is valued properly for the purposes of court fee and jurisdiction?
7. Relief.
7. On the evidence led, the learned Sub Judge, by a judgment and decree dated 30th January, 1982, decreed the suit for possession and damages. It was held that the Respondents’ father died as a statutory tenant. After his death, his widow inherited the tenancy rights, and after she expired the Respondents were not entitled to inherit the statutory tenancy and were, therefore, liable to be evicted from the suit premises.
8. Feeling aggrieved, the Respondents filed RCA No. 11/1982 in the Court of the learned Additional District Judge.
9. By the impugned judgment and decree dated 13th October, 1982, the learned Additional District Judge was of the view that the notice terminating the tenancy of the Respondents’ father was validly issued but after its termination, the notice was waived by the Appellant and the Respondents’ father was again taken as a contractual tenant. Reliance was placed on Ex. D-1, that is, the compromise between the parties. Accordingly, the appeal filed by the Respondents was allowed by the learned Additional District Judge and the suit for possession was dismissed except in respect of arrears of rent for which it was decreed.
10. The Appellant thereafter filed the present second appeal in which the above mentioned question of law has been framed for consideration. Learned counsel for the parties were heard on 3rd and 4th November, 2004 when judgment was reserved.
11. Learned counsel for the Appellant relied upon Mohan Lal Goela v. Siri Kishan, 2nd (1978) I Delhi 63 and borrowed the contents of paragraph 38 of the Report in support of his contention that mere acceptance of rent by the landlord in a case such as the present cannot be regarded as evidence of a new agreement of tenancy. It was said as follows:
“Mere acceptance of amounts equivalent to rent by a landlord from a tenant in possession after a lease had been determined by a notice to quit and who enjoys statutory immunity from eviction because of the Rent Act cannot be regarded as evidence of a new agreement of tenancy. If the tenant asserts that the landlord accepted the rent not as statutory tenant but only as legal rent indicating his assent to the tenant’s continuing in possession, it is for the tenant to establish it: See Bhawanji Lakhamshi and Ors. v. Himatlal Jamandas Dani and Ors., . On the facts of this case the defendants have failed to establish that the landlord assented to the creation of a new tenancy.”
12. Similarly, reliance was placed upon Smt. Moorti v. Smt. Parai Devi, 2nd (1980) II Delhi 1624 where, after referring to the provisions of Section 113 and 116 of the Transfer of Property Act, 1882 it was held in paragraph 14 of the Report as follows:
“It is now well established that after the determination of tenancy if the landlord accepts rent, his tenancy is not renewed and such a tenant is deemed to be continuing in possession by virtue of protection afforded to him under the Delhi Rent Control Act. Thus mere acceptance of rent from a tenant whose tenancy has been terminated does not amount to creation of a new tenancy. Such a tenancy can be created if a fresh contract between the landlord and the tenant is proved on record.”
13. Thereafter, in paragraph 15 of the Report it was said that the principle underlying Sections 113 and 116 of the Transfer of Property Act is the same, namely, that the assent of the landlord alone cannot renew or revive a tenancy after it is once terminated. Reference was made in this context to Kai Khushroo Bezonjee Capadia v. Bai Jerbai Hirjibhoy Warden and Another, AIR (36) 1949 FC 124, Ganga Dutt Murarka v. Kartik Chandra Das, and Bhawanji Lakhamshi.
14. Learned counsel also referred to two comparatively recent decisions of this Court in support of his contention. In Shri Ram Piston & Rings Ltd. v. Dr. Banwari Lal, it was said, relying on Sardari Lal Vishwar Nath v. Preetam Singh, that mere acceptance of rent from a lessee would not manifest the intention of the Lesser to renew the lease. Something more than mere payment and acceptance of rent would be necessary to assert that the Lesser has assented to the lessee continuing in possession and the Lesser intended renewal of the lease. Thus, the real question to be determined in each case is one of the intention of the parties.
15. Finally, in Delhi Jal Board v. Surendra P. Malik, support was drawn from Ganga Dutt Murarka and it was held in paragraph 12 of the Report:
“It is no longer a grey area that where a tenancy had otherwise expired by efflux of time but the tenant continued in possession of the premises, mere acceptance of rent by the landlord could neither renew the tenancy nor create a new one. That is so because such subsequent occupation of premises was not in pursuance of any contract, express or implied between the parties. It could at best be by virtue of the protection granted by a statute like Delhi Rent Control Act so long the tenancy fell within its purview but once the tenancy was out of its protection shield, it was not required to be determined by notice under Section 106 of TPA as it stood already determined by efflux of time under Section 111 of that Act.”
16. An analysis of the law laid down by the decisions mentioned above shows that whether the notice of termination of tenancy has been waived or not is essentially a question of fact dependant upon the circumstances of the case and a reasonable inference to be drawn from the record.
17. There can be no doubt about the correctness of the proposition sought to be canvassed by learned counsel for the Appellant. But eventually, what has to be seen is the intention of the parties, as evidenced from materials on record and the circumstances of the case.
18. The facts of this case show that not only did the Appellant continue to take rent from the Respondents’ father, but he also withdrew the petition filed for permission under the Slum Areas Act. In other words, he exhibited an intention of not wanting to proceed further with the process of evicting the Respondents’ father. If the Appellant’s intention were not to continue with the contractual tenancy or not to create a fresh contractual tenancy, he would not have withdrawn his application under Section 19 of the Slum Areas Act. By doing so, he deliberately burnt his boats, as it were. One can understand a situation where a landlord continues with his petition under the Slum Areas Act and after obtaining a favorable order therein, does not pursue the matter of eviction of his tenant – the intention of the landlord in such a case would have to be closely scrutinized. But that is not what the Appellant did – he withdrew his petition under the Slum Areas Act closing all doors for taking action to evict his tenant. To my mind, this clearly shows an intention of giving up his desire to evict his tenant and finally putting an end to his attempt to do so pursuant to a compromise with the Respondents’ father.
19. The time factor in the present case is also of some significance. The notice terminating the tenancy was issued in January 1968. The compromise between the parties took place in April 1974 about six years later. The suit for possession was filed in July 1978 about four years later and well after the death of the tenant. If there were any intention of the Appellant to have vacant possession of the suit premises, he would have taken some positive steps during this entire period by continuing with his petition under the Slum Areas Act and after obtaining permission filing an eviction petition against the tenant. Instead of doing so, he withdrew his petition under the Slum Areas Act and, a decade after issuing a notice terminating the tenancy, he filed a suit for possession. This delay is quite inexplicable, if not motivated.
20. The compromise between the parties is also of some importance as pointed out by the learned Additional District Judge. Ex. D-1 clearly mentions that the Appellant does not want to proceed with the case under the Slum Areas Act. The Appellant knew the consequence of this, namely, that he would not be able to initiate eviction proceedings against his tenant. This is clear from the prayer clause in Ex. D-1 which mentions that the proceedings under Section 19 of the Slum Areas Act were for seeking permission to institute eviction proceedings against his tenant. The document also mentions that there is no dispute left between the parties. If the idea was to evict the Respondents’ father, there would be a dispute left between the parties, which is whether the tenant can continue to remain in the suit premises or not. However, Ex. D-1 mentions that there is no dispute between the parties meaning thereby that the tenant can continue to remain in the suit premises. Surely, this cannot be interpreted as anything other than a waiver of the notice of termination, as rightly pointed out by the learned Additional District Judge.
21. Looked at from any point of view, I think it is quite clear that the Appellant intended to waive the notice of termination and the learned appellate court arrived at the correct conclusion on the facts of the case. Consequently, the question framed must be answered in the affirmative with the rider that receipt of rent by the Appellant fortified by other attendant facts and circumstances lead to the conclusion that the Appellant had waived the notice of termination of tenancy.
22. The appeal is dismissed, but with no order as to costs.