JUDGMENT
D.N. Roy, J.
1. This is a plaintiff’s second appeal. The plaintiff’s are Lala Janardan Swamp, his two sons Ramcs Chand and Suresh Chand, and his wife Smt. Raj Kishori Devi. Plaintiff No. 1 has been separate from the other plaintiffs, and there has been a partition between them. Plaintiff No. 1 is the owner of a half share, and the other plaintiffs are the owners. of the remaining half share of certain premises in Muzaffarnagar known as the “Royal Talkies”. The building together with its fittings and ceiling fans had been leased to Sarjoo Prasad who was the father of defendants Nos. 1 and 2 and the husband of defendant No. 3 who are respondents before us. Sarjoo Prasad died some time in 1949 and the defendants have since then continued in occupation as tenants. It is common ground that the defendants caused material alterations in the building and. substantially damaged the same without the consent of the plaintiffs. The plaintiffs were therefore driven to the necessity of instituting suit No. 268 of 1950 against them in the court of the Munsif of Muzaffarnagar, in which the prayer originally was that the defendants should be restrained by an injunction from making any alterations in the property and from damaging the same so long as the property had continued in their possession as tenants. Later on, by an amendment of the plaint, a relief for recovery of a sum of Rs. 2,000/- as. damages had been added. The suit aforesaid was-instituted on the 29th of March, 1950. It was decreed upon compromise on the 20th of March 1952, on payment of a sum of Rs. 1,000/- to the plaintiffs. During the pendency of that suit an application was made to the District Magistrate of Muzaffarnagar by Lala Janardan Swamp requesting. that he may be granted permission under the U. P. Control of Rent and Eviction Act, No. III of 1947, to file a suit for ejectment of the tenants or occupants namely, “Lala Debi Prasad, etc.” because they had damaged the building to a very great extent and also because the plaintiffs wanted the building for starting their own business inasmuch as by the prospective legislation for the abolition of the zamindari rights their income would be materially affected. The permission sought for was granted. Thereupon the plaintiffs instituted Suit No. 87 of 1950 in the court of Civil Judge of Muzaffarnagar on the 2nd of December, 1950, for the ejectment of the defendants and for recovery of arrears of rent and mesne profits after giving the defendants a notice dated the 5th of July, 1950, by which they intended to terminate their tenancy from the Ist of August, 1950.
2. The defendants resisted the suit on the ground that in view of the provisions of the U. P. Rent Control and Eviction Act the permission obtained from the District Magistrate was of no help to the plaintiffs and that they had no cause of action against them. They further pleaded that the notice of ejectment was not in accordance with law, firstly, because six months notice to quit was necessary, and, secondly, because the notice was served prior to the sanction given by the District Magistrate. They further contended that no forfeiture had been incurred by them and they pleaded Order II, Rule 2 as a bar to the suit,
3. The trial court held that the defendants had substantially damaged and materially altered the building within the meaning of Section 3 of the U. P. Control of Rent and Eviction Act, (Act III of 1947), that Order II, Rule 2 barred the suit inasmuch as in the previous suit for damages the plaintiffs could make relief for ejectment and they did not; that no defect attached to the permission of the District Magistrate obtained by the plaintiffs under the Rent Control Act; that the notice of ejectment given under Section 106 of the Transfer of Property Act was a valid notice and that the plaintiffs were entitled to a decree for Rs. 525/- towards arrears of rent and for Rs. 900/- for use and occupation. In ranting the plaintiffs a decree for ejectment and drecting the defendants to vacate the premises within two months, the trial court observed:
“In view of my findings above that the permission obtained from the District Magistrate to bring the suit is valid and that the notices of ejectment served to the defendants are also valid, the defendants are liable to be ejected from the cinema house.”
4. Against the decision aforesaid the defendants preferred civil appeal No. 269 of 1953 before the District Judge. The appeal was heard by the Additional District Judge of Meerut. The Additional District Judge held that the sanction accorded by the District Magistrate was defective inasmuch as it was in favour of only one plaintiff, namely, Lala Janardan Swarup and against only one defendant, namely, Lala Debi Prasad; and that a suit based on such a defective sanction was not maintainable. The lower appellate court agreed with the view of the trial court in holding that the defendants substantially damaged and materially altered the building within the meaning of Section 3 of Act III of 1947 so as to make them liable to ejectment on that ground.
But the lower appellate court further held that since the plaintiffs aid not seek ejectment of the defendants in Suit No. 268 of 1950 aforesaid, the present suit in regard to ejectment was barred by Order II, Rule 2 of the Code of Civil Procedure, The lower appellate court concurred in the view of the trial court that the notice of ejectment given under Section 106 was a perfectly valid notice. The lower appellate court accordingly allowed the appeal in part, modified the decree of the trial court, dismissed the suit for ejectment and granted the plaintiffs a decree for Rs. 1225/- as arrears of rent from the 1st of May 1950 to 30th of November, 1950.
5. Against the decision of the Additional District Judge this second appeal has been preferred by the plaintiffs and two points have been urged, namely,
(1) That the suit for ejectment was not barred by Order II, Rule 2 of the Code of Civil Procedure; and
(2) That the permission granted by the District Magistrate under Section 3 ot Act III of 1947 was a valid and good permission.
6. On the other hand it has been contended by the defendants-respondents that the notice given was defective and the lease has not been determined and that in any event there has been a waiver.
7. We have already stated that the building together with its fittings and ceiling fans had been leased to Sarjoo Prasad who was the father of defendants Nos. 1 and 2 and the husband of defendant No. 3. In 1946 Lala Janardan Swarup. the plaintiff instituted Suit No. 899 of 1946 in the Court of the Munsif of Muzaffarnagar against the aforesaid Sarjoo prasad for his ejectment and for recovery of certain amount as rent. The suit was compromised on the 28th of April, 1947. According to that compromise upon the fulfilment of certain conditions by Sarjoo Prasad, the said Sarjoo Prasad was to continue as tenant of the property for a term of three years beginning from the 1st of May, 1947, on a rent of Rs. 175/- per month. The conditions were fulfilled and Sarjoo Prasad continued in occupation of the property as tenant. Sarjoo Prasad died some time in 1949.
The defendants continued in occupation of the property as tenants and their possession as tenants had been recognised by the plaintiffs in Suit No. 268 of 1950 referred to above by which the plaintiffs sought a relief for injunction restraining the defendants from making any alteration in the property and from damaging the same as long as the property continued in their possession as tenants. It was no doubt by a later amendment of that plaint that a relief for recovery of a sum of Rs. 2,000/- as damages had been added. The suit aforesaid was decreed upon compromise on the 20th of March, 1952, on payment of a sum of Rs. 1000/-. As a lease is a transfer of an estate of inheritance, it does not terminate with the death of the original lessee, but survives during the: remainder of the term of his heirs and representatives and if the heirs and representatives are acknowledged as tenants and they continue in occupation of the premises as tenants after the efflux of the time limited by the original lease, there is holding over.
8. The question which we now propose to dispose of is whether the permission granted by the District Magistrate under Section 3 of the U. P. Control of Rent and Eviction Act No. III of 1947 was a valid and good permission. The permission of the District Magistrate for a suit for ejectment postulated under Section 3 of the U. P. Rent Control and Eviction Act relates to cases which are not covered by Clauses (a) to (g) of that section. Clause (b) covers a case where the tenant has wilfully caused or per-mitted to be caused substantial damage to the accommodation.
Clause (c) covers a case where the tenant has, without the permission in writing of the landlord, made or permitted to be made any such construction as in the opinion of the court has materially altered the accommodation or is likely substantially to diminish its value. If the suit is regarded as one falling under Clauses (b) and (c) the permission of the District Magistrate would not be necessary. In the present case there is concurrent finding of fact of the two courts below that the tenants wilfully caused or permitted to be caused substantial damage to the accommodation and they without the permission in writing of the landlord, made constructions which materially altered the accommodation. The present case was therefore covered by Clauses (b) and (c) of Section 3 and the permission of the District Magistrate would not therefore be necessary.
9. Coming now to the actual permission it appears that on the 1st of September, 1950, an application was made by Lala Janardan Swarup alonejo the District Magistrate in which he stated that “Lala Debi Prasad, etc.” had been occupying the cinema hall as tenants; that they had made substantial alterations in the building which caused damage to the building to a great extent; that he did not wish them to continue in occupation of the building, the more so because after the abolition of the zamindari, which was his main source of income, his resources would be considerably affected and he wanted the accommodation for himself in order to start some business. Lala Janardan Swarup requested the District Magistrate to grant him the permission to file a civil suit against the “occupiers” for their eviction. The District Magistrate granted the permission which was conveyed by the Rent Control and Eviction Officer of Muzaffarnagar to Lala Janardan Swarup. This communication, which is dated the 13th of October, 1950, was as follows:
"Please refer to your application dated 1-9-1950 addressed to the District Magistrate. I have the honour to communicate the order of the District Magistrate given below. 'I have perused the report of the D. S. O. and Cinema Officer. The tenant has made unauthorised alterations in the cinema hall. The consent of the owner has not been established. Due to the impending zamindari abolition legislation the personal need of the owner is genuine. Permission will be awarded to the owner to file a civil suit for the ejectment of the tenant.' "Hence under the orders of the District Magistrate you are hereby accorded permission to file a civil suit against your tenant Sri Debi Prasad under Section 7 of the Rent Control and Eviction Act."
10. In regard to the permission aforesaid it has been contended on behalf of the appellants that the lower appellate court’s view that this permission was defective because it was in favour of only one of the landlords, namely, Lala Janardan Swarup and against only one of the tenants, namely, Lala Debi Prasad was not based upon a correct appreciation of matter. In Moti Lal v. Basant Lal, AIR 1956 All 175 (A), a learned Judge of this Court held that where permission to sue for ejectment has been obtained under Section 3, it will automatically enure not only to the benefit of the person who obtained it but also to the benefit of the others who were interested in filing the suit.
It was further held that where it is mainfest that all the plaintiffs landlords who were interested in the matter brought the suit after serving a notice on the tenants to vacate the premises in suit, it will be deemed that the plaintiff who obtained the permission acted as agent on behalf of the other plaintiffs. We are in accord with that view. We are further of opinion that where an order of the nature covered by the present suit has been obtained by one of the plaintiffs who will be deemed to have acted as agent on behalf of the other plaintiffs for the ejectment of “the tenant” and the order specifies only one such person as tenant the order will be deemed to cover the entire body of tenants and not simply one out of them whose name was specified, not by the District Magistrate but by the Rent Control Officer. We have quoted the order of the District Magistrate and in that order the District Magistrate granted permission “to the owner” to file a civil suit for the ejectment of “the tenant”. Such a permission was therefore valid and it automatically enured to the benefit of the entire body of owners or landlords against the entire body of the class designated as “the tenant”.
11. Under Section 108(o) of the Transfer of Property Act the lessee must not pull down or damage buildings’ belonging to the lessor or commit any other act which is destructive or permanently injurious thereto. It is clear that the tenant cannot make structural additions and alterations without the consent of the landlord. Alterations that are not authorised amount to a breach of the implied covenant mentioned in Clause (m) of Section 108. Such alterations will also be a breach of the implied covenants mentioned in Clauses (o) and (p) of the section.
12. Section 111 of the Transfer of Property Act, inter alia provides that a lease of immovable property determines. (a) by efflux of the time limited thereby;..... (g) by forfeiture; that is to say, (1) in case the lessee breaks an express condition which provides that on breach thereof the lessor may re-enter and the lessor gives notice in writing to the lease of his intention to determine the lease..... (h) on the expiration of a notice to determine the lease duly given by one party to the other.
13. Leases for a definite period, such as a lease for a year, or for a term of years, expire on the last day of the term and the lessor may enter without notice or other formality. Under Clause (g) of Section 111 a breach of condition only makes the lease voidable, the forfeiture is not complete unless and until the lessor gives notice that he has exercised his option to determine the lease. In Loewenthal v. Venhoute, (1947) 1 All E. R. 116 (B) it has been explained that when a forfeiture of a lease is incurred the lease is voidable and not void and in those circumstances the giving of a notice to quit may recognise the subsistence of the lease and may amount to a waiver of forfeiture, but when the tenancy is determined by a notice to quit the position is entirely different. When a valid notice to quit is given, the lease is determined and a new tenancy can be created by an agreement, express or implied, and no such agreement can be inferred from the fact of service of a second notice.
14. Under Section 112 of the Transfer of Property Act a forfeiture under Section 111, Clause (g) is waived by acceptance of rent which has become due since the forfeiture, or by any other act on the part of the lessor showing an intention to treat the lease as subsisting, provided that the lessor is aware that the forfeiture has been incurred; provided also that where rent is accepted after the institution of a suit to eject the lessee on the ground of forfeiture such acceptance is not waiver. The election not to avoid the lease may be manifested in other ways besides acceptance of rent. Instances of such acts showing an intention to treat the lease as subsisting are a demand of rent accruing due since the breach, a suit for such rent, or acceptance of a sum paid into court as damages for breach of covenant to repair alleged to have been committed during the term.
15. Keeping in view the principles stated above we now proceed to examine the facts of this case. The lease was created in favour of Sarjoo Prasad for a period of three years ending with the 30th of April, 1950. Sarjoo Prasad died some time in 1949. The defendants since then continued in occupation as tenants. They substantially and materially damaged the building and caused material alterations in it without the consent of the plaintiffs. This amounted to a breach of the implied covenants mentioned in Clauses (m), (o) and (p) of Section 108 of the Transfer of Property Act.
There was no express condition in the terms of the compromise decree dated 28-4-1947, in Suit No. 899 of 1946 of the court of Munsif Muzaffarnagar, referred to above, which provided that on breach thereof the lessor may re-enter. Even if an express condition like that is to be inferred from the compromise decree emanating from the implied covenants mentioned in Clauses (m), (o) and (p) of Section 108 of the Transfer of Property Act, a breach of the condition only makes the lease voidable and the forfeiture woiild not be complete unless and until the lessor gave notice that he had exercised his option to determine the lease under Section 111, Clause (g) of the Act.
The forfeiture under Section 111, Clause (g) in the present case must be deemed to have been waived not only by acceptance of rent which became due since the forfeiture but by the act on the part of the lessor in the subsequent suit No. 268 of 1950 brought against the tenants showing an intention to treat the lease as subsisting. As we have already said, such an intention on the part of the lessor must be inferred because, although the lessor was aware that the forfeiture had been incurred, the lessor in the suit aforesaid clearly indicated that the forfeiture has been waived; and that was why the lessor in spite of the forfeiture prayed for a relief of injunction restraining the tenants from making any future alteration in the building so long as the tenancy existed.
It appears that in Suit No. 268 of 1950 aforesaid a compromise was entered into between the parties. That compromise is on the record. It mentions that Suit No. 268 of 1950 as also Suit No. 57 of 1950 (namely, the present suit out of which this second appeal has arisen) had been compromised and that in Suit No. 268 of 1950 the plaintiffs had received Rs. 1000/- from the defendants. On 12-4-1952 when Suit No. 57 of 1950 was taken up for hearing, an application which is paper No. 127 C on the record, was made on behalf of the defendants.
In that application it was stated that the plaintiffs in their Suit No. 268 of 1950 of the court of the Munsif had unequivocally compromised the ground of claim, namely that the defendants tenants had materially altered and damaged the premises of the plaintiff and had accepted Rs.1000/-from the defendants by way of compensation” for the said alterations and that in the light of the above fact the plea of damages or alteration of the premises did no longer remain open to the plaintiff in the present suit. The defendants therefore prayed that the plaintiffs’ evidence on the said plea be disallowed and the compromise be admitted in support of the defendants’ plea of waiver.
This application was disposed of by the learned Additional Civil Judge by an order dated 1-5-1952, by which he stated that Suit No. 268 of 1950 was compromised between the parties on the understanding that that case as also the present Suit No. 57 of 1950 shall be compromised together; that as a matter of fact the compromise of both these suits had been settled in open Court by the parties and thereafter the first suit was compromised on a payment of certain sum, while the terms of the compromise in the second suit were left to be recorded in writing and the completed compromise was to be filed the next day; that on the next day the parties informed the court that the corn-promise talks had fallen through on account of some misunderstanding and that it would therefore be wrong to contend that the compromise of the first suit should in any way lead to the shutting out of any evidence in this case.
Upon that view of the matter the learned Additional Civil Judge rejected Application No. 127 C. The learned Additional Civil Judge allowed evidence to be led on the question of material alteration or damage to the building and he held, independently of the compromise decree in the earlier Suit No. 268 of 1950, that there was material damage or alteration to the building. Whether it was open to the learned Additional Civil fudge to take fresh evidence on the point or whether lie should have taken that question to have been finally concluded by the compromise decree in Suit No. 268 of 1950 is not now necessary for us to decide.
In any event, the act of the plaintiffs in entering into a compromise in Suit No. 268 of 1950 and in accepting a sum of Rs. 1000/- as damages for the alterations in the building amounted, in our opinion to an act on the part of the lessor showing an intention to treat the lease as subsisting. In these circumstances and in view of Section 113 of the Transfer of Property Act the notice given under Section 111 Clause (h) must be deemed to have been waived with the express or implied consent of the persons to whom it was given by an act of the persons giving it, showing an intention to treat the| lease as subsisting. It follows therefore that the relief for ejectment and for damages for use and occupation, instead of for rent, was rightly refused by the lower appellate court. Upon this view of the matter, although we have disagreed with some of the findings of the lower appellate court, the refusal to grant the relief for ejectment must be upheld.
16. There remains only one other point to be determined and that is whether the present suit was barred by Order II, Rule 2 of the Code of Civil Procedure. In giving an affirmative finding on this issue the lower appellate court was swayed by the consideration that when the earlier Suit No. 268 of 1950 was filed the cause of action for ejectment had already accrued to the plaintiffs and since that cause of action was not made the subject of relief in that suit the present suit was barred under Order II, Rule 2.
This reasoning in our opinion is faulty. Suit No. 268 of 1950 for the relief of injunction was filed when the alterations were still in progress. It was during the pendency of that suit that an ad-ditional relief for damages had been added to that plaint. A suit for ejectment required determination of the lease by a prior notice under the Transfer of Property Act and it was on the expiration of that notice to determine the lease and that the lease will be deemed to have been determined under Section 111(h) of the Transfer of Property Act. On the date of that suit the lease had not been determined by a notice under Section 111(h). Consequently a relief for ejectment could not have been made in that suit.
The argument that the plaintiffs could have asked the court that Suit No. 268 of 1950 should have been kept stayed for some time and that that interval could have been utilised for the giving of a notice for the determination of the lease and thereafter a relief for ejectment could have been added to the plaint in Suit No. 268 of 1950 by making certain additional averments in the plaint has only got to be stated in order to bear out our view that it has got no substantial basis for its acceptance. If a relief for ejectment could not have been made on the date the suit No. 268 of 1950 was instituted, the second suit for such a relief cannot be said to be barred by the principles of Order II, Rule 2 of the Code. In our opinion therefore the lower appellate court was wrong in holding that Order II, Rule 2 applied to the suit.
17. As a result of the finding reached by us, namely, that the notice given under Section 111, Clause (h) must be deemed to have been waived and there was no determination of the lease and further that an intention on the part of the lessor to treat the lease as subsisting was manifest by their own action or conduct, this second appeal in our opinion has got no force and we accordingly dismiss it with costs.
