SALEH BROS Vs. K RAJENDRAN

JUDGEMENT

(1.) THIS Second Appeal arises Out of a suit in ejectment and the tenant who failed in the Courts below is the appellant in the second appeal. The premises in question is situated in Sembudoss Street and the owner and landlord was one Kuppuswamy naicker now represented by the plaintiffs in the action. By G. O. No. 2216 (Home), dated 5th August, 1958, the Government issued a notification exempting the premises from the provisions of the Rent Control Act. The tenant filed two writ petitions, W. P. Nos. 732 and 733 of 1958 to quash the order of the Government and the petitions were dismissed on 10th November, 1960. The tenant preferred writ Appeals Nos. 156 and 157 of 1960, therefrom and they too were dismissed on 15th November, 1962. Meanwhile, on 6th October, 1958, within two months after the order of exemption by the Government, the plaintiffs instituted the suit O. S. No. 1822 of 1958 on the file of the City Civil Court, Madras, for recovery of possession of the property after giving notice, Exhibit A-1, dated 2nd September, 1958, terminating the tenancy. Pending disposal of the writ proceedings, there was an order of limited interim stay and after the final disposal of the writ proceedings the suit was taken up and disposed of. Several objections were raised by the defendant, the tenant, and only two points were argued before me in the second appeal. One is that the suit is bad for want of proper notice to quit, the objection, being that the notice terminating the tenancy by the midnight of 30th september, 1958 is bad in law. A perusal of the judgment of the Courts below shows that this point was not seriously pressed before the Courts below and it was also not shown how this notice was defective. Before me too, the point was merely mentioned and when the attention of the learned Counsel for the appellant was drawn to the fact that in the grounds of appeal in this Court no objection has been taken touching this aspect, learned Counsel did not pursue the matter further. Indeed the only point that was pressed before me is the point of waiver. The tenant has filed a batch of receipts in respect of rents paid from August, 1958 to november, 1962. The third of the series of receipts is dated 31st October, 1958 being the receipt of a sum of Rs. 212-50 towards the rent for the premises for the month of October, 1958. The argument on behalf of the tenant is that after the tenancy came to an end by the midnight of 30th September, 1958, the landlord has received the rent from the tenant for the entire month of October, 1958 and for the subsequent months and he should therefore be held to have waived the prior notice to quit thereby treating the tenancy as still subsisting. Counsel on both sides cited some decisions touching this aspect as to whether or not this conduct of the landlord would amount to waiver.

(2.) LEARNED Counsel for the appellant placed considerable reliance upon illustration (a) to Section 113 of the Transfer of Property Act and the absence of a provision corresponding to the second proviso in Section 112 of the Transfer of Property Act. His contention is that the notice, Exhibit A-1, issued under Section 111 (h) of the Act determining the tenancy must be held to have been waived and stood cancelled by reason of the landlord accepting rent which had become due in respect of the property since the expiration of the notice. He urged that in the case of waiver of forfeiture by acceptance of rent which had become due since forfeiture the legislature had made a special provision in the second proviso to Section 112 that when such rent is accepted after the institution of the suit to eject the lessee on the ground of forfeiture, such acceptance of rent is not a waiver and that the legislature had made a deliberate departure and distinction between waiver of forfeiture and waiver of notice to quit. In support of his contention learned Counsel relied upon the following observations of Buckland J. , in Manicklal v. Kadambini, air 1926 Cal 763:

(3.) BEFORE I proceed further to examine the decisions, it is necessary to refer to the well-established principles, because, in my opinion, the principle underlying section 112, that after the landlord had elected to avail himself of the forfeiture and had given notice in writing to the lessee of his intention to determine the lease and followed it up by a suit in ejectment there is no waiver, would equally apply to section 113 where the landlord has instituted a suit in ejectment, preceded by the issue of notice determining the lease, The absence of a corresponding proviso, in section 113, is of no significance and does not manifest any intention on the part of the Legislature to make any difference. When forfeiture occurs as specified' in section 111 (g) on the happening of any one of the specified events, the lease does not ipso facto come to an end, but it only gives a right to the lessor, if he is so minded and so elects, to determine the lease, taking advantage of the forfeiture. It is not the mere happening of the specified events at the instance of the lessee that would bring about a termination of the lease putting an end to the relationship, but it is the determination of the lessor to elect to determine the lease that would bring about a dissolution of that relationship. The requirement of the landlord to so elect is based upon the well-recognised principle of law that no man can take advantage of his own wrong and that the lessee by his unilateral act and by committing a wrong cannot make the lease void it is only voidable and has to be avoided by the lessor.