JUDGMENT
Arun Kumar, J.
1. The respondent filed a suit for recovery of possession and damages on 27th August, 1991 against the appellant with respect to premises bearing No. 33, Transport Centre, Rohtak Road, Delhi. The suit premises comprises ground floor and first floor having a total area of 960 sq. ft. The premises was admittedly let out by the respondent plaintiff to the respondent for three years w.e.f. 1st October, 1984 to 30th September, 1987 at the monthly rent of Rs. 5,500 vide a registered lease deed. This lease was extended for a further period of three years w.e.f. 1st October, 1987. The extended period of lease was to expire on 30th September, 1990. The rent was enhanced from Rs. 5,500/- per month to Rs. 6,500/- per month. The second lease was however not registered. Admittedly the second lease was executed on same terms and conditions as were contained in the previous registered lease deed. The first registered lease deed contained a clause that the lease was for a period of three years and expires with the expiry 30th September, 1987. No notice whatsoever was required to terminate the lease and it was specifically provided that the lease would stand terminated with efflux of time. The same clause was admittedly repeated in the subsequent lease also. Still the respondent landlord issued a notice dated 31st August, 1990 calling upon the appellant to hand over vacant possession of the suit premises by the end of 30th September 1990. The notice further contained a clause that if according to the addressee the month of tenancy ended on a date other than the end of the month, i.e. 30th September, 1990, the possession could be handed over on expiry of midnight of such other date. The receipt of this notice is not disputed by the appellant. Besides possession of the premises, the plaintiff landlord claimed arrears on account of use and occupation of the premises w.e.f. 1st October, 1990 up to 31st July, 1991 at the rate of Rs. 12,000/- per month. The plaintiff also prayed for an inquiry under Order XX, Rule 12, Code of Civil Procedure to ascertain the amount of future damages/menses profits payable by the defendant to the plaintiff from the date of filing of the suit till handing over possession of the premises. The plaintiff under took to pay the requisite Court fee on such amount as may be finally ascertained in this behalf.
2. At the time of hearing of this appeal the learned Counsel for the defendant urged the following points :
1. The lease had been renewed for a further period of three years w.e.f. 1st October, 1990 vide an agreement dated 8th January, 1991 enhancing the rent to Rs. 7,500 per month and, therefore, the suit which was filed on 27th August, 1991 was premature and not maintainable.
2. The notice of termination of tenancy is illegal and invalid.
3. Waiver.
3. So far as the first point regarding renewal of lease is concerned it is to be noted that no such alleged agreement dated 8th January, 1991 has been produced. The only proof regarding renewal of lease which is sought to be given is that the appellant had given three cheques for Rs. 6,500/- each out of which one cheque was encashed by the plaintiff in September, 1991. It is submitted that the renewal of lease w.e.f. 1st October, 1990 for a period of three years was with enhancement of rent by Rs. 1,000/- per month. The cheques for Rs. 6,500/- per month are explained by saying that the balance of amount of rupees one thousand per month was paid in cash for which there were entries in the books of account of the defendant. We are unable to accept this plea of renewal of lease by further three years w.e.f. 1st October, 1991. The renewal could be only by way of registered lease because the period involved is three years as per the appellant’s own case which was not possible without a registered lease deed. Secondly, the plea of increase of rent and payment of rent at the rate of Rs. 7,500/- per month is also on the face of it is false. Right from the inception of tenancy the rent was always paid by cheques and it is unthinkable that the renewal of lease w.e.f. 1st October, 1990 would entail an element of payment of Rs. 1,000/- per month cash. It appears that this plea is being raised as an after thought only in order to make out a defense in the present suit. Since the defendant was continuing to occupy the premises and after the plaintiff had already filed the present suit in August, 1991, it appears that one of the cheques for Rs. 6,500/- was got encased by the plaintiff. As per defendant’s case if the rent had been increased to Rs. 7,500/- per month, there is no reason why the landlord would have not insisted on the entire amount being paid through cheque as per past practice. We find no merit in this plea. Moreover, it has to be noted in this context that the earlier two lease deeds referred to herein before specifically provided that the period of lease on each occasion was three years and the lease would come to an end by efflux of time on the expiry of that period. In the face of such a clause there could be no question of renewal of lease by an oral agreement.
4. To make good the second point regarding validity of the notice, the learned Counsel for the appellant invited our attention to Section 110 of the Transfer of Property Act. On the basis of the said provision it was urged that the lease in the present case was expressed as commencing from 1st day of October and, therefore, in computing the month of tenancy the first day of the month had to be excluded. Thus according to the learned Counsel the tenancy month would have to be reckoned as from 2nd day of each English Calender month up to 1st day of the succeeding month. The notice of termination of tenancy which purported to terminate the tenancy w.e.f. 31st October, 1990 was thus said to be invalid. This argument, in our view, is totally misconceived at least so far as the facts and circumstances of the present case are concerned. Firstly the lease deed itself provides that it would come to and end on the expiry of three years, i.e. on 30th September, 1987 in the first instance and the 30th September, 1990 in the second instance. It is admitted case of both the parties that the first lease deed is a registered lease deed and it contains a clause in this behalf. It is further admitted case of the parties that the second lease, though not registered, was executed on exactly same terms and conditions. The appellant is bound by this admission and, there fore, the second lease, would be taken to be coming to and end on 30 September, 1990 and further it follows that no notice of termination of tenancy was really required in view of the specific provision of the relevant clause of the lease deed. Secondly, in the notice of termination of tenancy which has been issued in the present case, the landlord has taken care to say that if according to the tenant the month of tenancy expired on a date other than the last day of the English Calender month, that could be taken as the day of termination of tenancy and where after the tenant was required to hand over vacant possession of the premises. This clause leaves the argument raised on Section 110
of the Transfer of Property Act totally devoid of any force.
5. Thirdly, it is appellant’s own case that the lease expired on 30th September, 1990 and that is why it was pleaded that the lease was renewed w.e.f. 1st October, 1990 for a further period of three years vide an agreement dated 8th January, 1991. This admission on the part of the appellant again renders the need for termination of tenancy by way of a notice under Section 106 of the Transfer of Property Act redundant. It follows that in the facts of the present case actually no notice of termination of tenancy under Section 106 of the Transfer of Property Act was required. At the same time it is to be noted that requirement of notice stands satisfied because of the language of the notice stating that the month of tenancy could be taken to be ending with whatever date which was acceptable to the tenant. The second point also fails.
6. Lastly, about the plea of waiver raised on behalf of the appellant, the learned Counsel for the respondent at the thresh-hold argued that this plea was never raised by the appellant/defendant in the written statement and, therefore, was not open to them. We find merit in the substance. Plea of waiver is both factual as well as legal and has to be pleaded so as to enable the other side to effectively meet the same. The entire written statement does not contain this plea. Faced with this situation the learned Counsel for the appellant tried to wriggle out from his plea of waiver and tried to rely on Section 116 of Transfer of Property Act to say that the appellant was a tenant holding over.
7. The plea of waiver was sought to be made out on the basis of encashment of one cheque for Rs. 6,500/- by the landlord which was after the service of notice of termination of tenancy. In view of the appellant’s own case that the revised rent for the relevant period was Rs. 7,500/- per month, the plea of waiver cannot be sustained because the cheque encased by the landlord was only of Rs. 6,500/-. The appellant tried to urge that the balance amount of Rs. 1,000/- was paid cash for which, however, there was no proof or material on record. In the absence of this we are unable to accept that rent was ever paid or a accepted at the enhanced rate. For this reason alone the plea of acceptance of rent after service of notice has to be rejected. The rent according to the appellant himself was Rs. 7,500/- per month and this amount was never paid for any month at all by the tenant. We have disbelieved the payment of Rs. 1,000/- cash to make up the short fall in the cheque for Rs. 6,500/-.
8. Reliance placed on Section 116 of the Transfer of Property Act by the learned Counsel for the appellant is also misconceived and untenable. In order to invoke Section 116 the tenant is t o show that the lessor or his legal representative accepted rent from the lessee or otherwise assented to his continuing in possession. This the lessee has failed to show in the present case. The lessee took a specific plea that the lease was renewed by increase of rent from Rs. 6,500/- to Rs. 7,500/- per month. There is no proof of payment of rent even for a single month at the rate of Rs.7,500 per month. Thus the lessee has failed to satisfy the essential condition under Section 116 of the Act. The plea of renewal of lease by holding over and acceptance of rent by the lessor after the expiry of the earlier lease has, therefore, to be rejected. As a matter of fact the lessee only claimed one extension for a period of three years w.e.f. 1st October, 1990, it claimed a second extension also w.e.f. 1st October, 1993. This is clear from para 10 of the preliminary objections contained in the written statement where it is stated that the suit of the plaintiff is premature as admittedly the tenancy could not have been terminated prior to 30th September, 1996. Further about the renewal of lease w.e.f. 1st October, 1990 at the rent of Rs. 7,500 per month the plea of the lessee was:
Para 11 of preliminary objection in the written statement :
"The plaintiff has admittedly renewed the lease on 8th January, 1991 effective from October, 1990 and has accepted the rent of Rs. 7,500 and as such after accepted the amount after renewal of the lease the plaintiff is stopped from filing the present suit." 9. Thus the appellant took a definite stand that the lessor had renewed the lease w.e.f. October, 1990 by a accepting the rent as Rs. 7,500 per month. In fact in the entire written statement on merits also the definite stand of the appellant was that the rent was Rs. 7,500 per month. The appellant failed to make good this plea and, therefore, his case on this point has to fall as a whole with all the consequences which flow from this plea being found to be false. 10. We find no merit in any of the pleas raised on behalf of the appellant. This appeal is accordingly dismissed.
