JUDGMENT
Kiran Anand Lall, J.
1. This regular second appeal is directed against the judgment and decree dated 4.11.1989 of the first appellate court vide which it had set aside the judgment and decree dated 8.4.1989 of the trial Court.
2. Mangal Dass (appellant-plaintiff) had filed a suit against Bahadur Singh Chauhan (respondent-defendant), seeking his ejectment from the disputed shop. The trial Court decreed the suit but the first appellate court set aside the verdict and dismissed the suit.
3. The respondent was a tenant in the shop. The appellant terminated the tenancy by serving a notice on him, under Section 106 of the Transfer of Property Act (for short “the Act”). Inspite of that the respondent did not vacate the shop. So, after the expiry of stipulated period, the appellant filed ejectment suit against him on 14.10.1981, pleading that as the tenancy stood terminated by virtue of notice under Section 106 of the Act which was served upon him on 24.9.1981, he was entitled to get an order of ejectment against him.
4. The respondent contested the suit. He denied the service of notice upon him. In the alternative, it was pleaded that if it was found that a valid notice (under Section 106 of the Act) had been served upon him, the appellant had waived the notice to quit by having received the rent after serving notice under Section 106 of the Act, on him. Objections regarding jurisdiction of civil court to try the suit and also in respect of maintainability of the suit in the form it was filed, were also taken up. It was further pleaded that he was entitled to continue in possession as tenant, as per the principle of holding over under Section 116 of the Act and the suit was liable to be dismissed.
5. Trial was held in respect of the following issues: Issues framed on 3.3.1982.
1. Whether the shop was constructed in 1976-77 if so, to what effect? OPP
2. Whether the plaintiff has validly terminated the tenancy of defendant? OPP
3. Whether the Civil Court has no jurisdiction? OPD
4. Whether the suit is not maintainable in the present form? OPD
5. Relief.
Additional issues framed on 16.9.1986 and numbered as 4-A and 4-B in the trial Court judgment.
1. Whether the plaintiff has waived the notice to continue in possession, as tenant, as alleged? OPD
2. Whether the defendant is entitled to continue in possession, as tenant, as alleged? OPD
6. All the issues were answered by the trial court in favour of the appellant and against the respondent. Jurisdiction of civil court to try the suit was upheld. It was held that as the shop was constructed in the year 1976, the provisions of Haryana Urban (Control of Rent & Eviction) Act, 1973, were not applicable to it. It was also held that the tenancy stood validly terminated with the service of notice (Ex. P3) on the respondent and also by the efflux of three month’s time, as per the terms of the rent-deed dated 31.1.1977, Ex. P6. It was further held that mere acceptance of rent by the appellant from the respondent, after terminating the tenancy by serving a notice to quit, or by efflux of time, could not, by itself, create a new tenancy nor it could be said that by accepting the rent after termination of tenancy, the appellant had waived the notice to quit. As a consequence it was held that the respondent was not entitled to continue in possession of the shop, as a tenant.
7. In first appeal also, findings of the trial court in respect of issues No. 1 to 4 were upheld. However, the verdict under appeal was set aside, after answering the findings on the two additional issues in favour of the respondent. It was held that as the appellant had accepted rent after issuing notice, Ex. P3, and also during the pendency of the suit for ejectment, he had waived the notice to quit, and so, in order to put an end to the tenancy, a fresh notice to quit was necessary.
8. In this regular second appeal filed by the plaintiff-appellant, I have heard learned Counsel for the parties on the following substantial question of law:
Whether acceptance of rent by the landlord from the tenant during the pendency of suit for ejectment, amounts to waiver?
9. At the outset, it may be stated that the respondent being in arrears of rent for the period 1.18.1981 to March 1982, the appellant had filed a suit for recovery of arrears of Rs. 1760/- also against him, alongwith an application for attachment of his property (before judgment) during pendency of the suit. The court, accordingly, deputed a bailiff for effecting attachment of his property. The bailiff, however, did not attach the property as he agreed to make payment of the amount claimed in the recovery suit. And, it was, thereafter, that the respondent made payment of the amount due from him as rent and the same was accepted by the appellant. The recovery suit was, thereupon, withdrawn by the appellant.
10. The question for determination, therefore, is as to whether under the above facts and circumstances, acceptance of rent by the appellant (landlord) from the respondent (tenant), during the pendency of the suit for ejectment, could amount to waiver, entitling the respondent to continue in possession of the shop as a tenant? The only reply to this query, in my view would be in the negative. Because, mere acceptance of rent during the pendency of a suit for ejectment cannot, by itself, have any adverse effect on the rights of the landlord-plaintiff.
11. In the instant case, tenancy had already been terminated and suit for ejectment had also not only been filed but was being vigorously pursued by the appellant. That being so, it could not, by any method of interpretation, be said that the appellant’s intention, while accepting the arrears of rent due from the respondent, was to permit him to continue as his tenant. Under similar circumstances, it was held by the Hon’ble Allahabad High Court in 2002 (3) Civil Court Cases 79 (Allahabad), Union of India and Anr. v. Sudarshan Lal Talwar, that mere acceptance of rent after the period of termination does not amount to waiver. There must be some intention of waiver. When landlord is actively pursuing a suit for ejectment it cannot be inferred that notice had been waived. Another judgment on the point is 1998 (2) Civil Court Cases 545 (Delhi), Shri Ram Pistons and Rings Ltd. v. Dr. Banwari Lal and Anr., wherein also it was held that mere acceptance of rent is not sufficient to renew the lease and something more than mere payment and acceptance of rent is necessary to assert renewal of lease. The matter, in fact, now stands clinched by the latest pronouncement of the apex Court, report as A.I.R. 2006 Supreme Court 1734, Sarup Singh Gupta v. S. Jagdish Singh and Ors. wherein while dealing with the question of waiver in a case where landlord has accepted rent after terminating the tenancy, the Apex Court has held as under:
The tenant offered and the landlord accepted the rent for the months of April, May and thereafter. The question is whether this by itself constitute 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 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 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 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 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 to support the plea of waiver. On the contrary the filing and prosecution of the eviction proceeding by the landlord suggests otherwise.
12. Thus, the settled legal position on the point under issue is that acceptance of rent by the plaintiff during pendency of the suit, by itself, does not create a new tenancy and what is to be seen is as to what was the intention of the plaintiff in accepting the rent. In the case in hand, the intention of the appellant-plaintiff was very clear. He has not only filed a suit for ejectment but he continued pursuing it even after receipt of the amount in question. Therefore, it could not be said, by any method of interpretation, that his intention was to renew the tenancy or that he had waived the notice to quit.
13. Reference may, however, also be made to the (two) judgments referred to by the learned Counsel for the respondent viz. 2006 (2) R.C.R. (Civil) 561 (S.C.), Gurdev Kaur and Ors. v. Kaki and Ors., and (2004-3) 138 P.L.R. 793, Ishwar Singh v. Tara Chand. I have carefully gone through both these, but neither of the two is of any help to the respondent. While referring to Gurdev Kaur’s case, the contention of the learned Counsel was that a finding of fact cannot be interfered in second appeal which can be heard only on a question of law. There cannot, of course, be any dispute with this proposition of law. But, the same does not help the respondent, as this second appeal has not been heard on any finding of fact but has been heard, only on a substantial question of law, referred to at page 4 of this judgment. In so far as Ishwar Singh’s case is concerned, the same, too, is also of no use to the respondent as the facts and circumstances under which the appellant-landlord accepted the rent, and that, too, during the pendency of a suit for ejectment, have already been noticed in para 11 above where the conclusion reached is that the respondent had made payment of the amount claimed as arrears of rent, in order to avoid attachment of his property ordered by the court, during the pendency of a suit for recovery filed by the appellant, and the same was accepted by the latter.
14. In the light of what has been discussed above, it is clear that the conclusion arrived at by the learned first appellate court, while dealing with the findings of additional issues No. 4-A and 4-B, is palpably wrong. There had been no waiver of the notice to quit, on the part of the appellant. The tenancy already stood terminated and as such, the respondent was liable to vacate the shop. The judgment and decree of the first appellate court are, therefore, set aside and the verdict of trial court is restored.
15. Appeal is, accordingly, allowed leaving parties to bear their own costs.