Decided on December 08,1982



- (1.) This is a tenants revision. They come in here against an order made in I A No. 1404/82 in R C C No. 108/ 77, as confirmed in R C A No. 31/82. The circumstances, in brief, that give rise to this revision petition are: Respondent herein filed an eviction petition against the petitioners on twin grounds of wilful default and bona fide requirement of the premises for the extension of his own business. While the said R. C. wes pending, I A No. 1404/82 has been filed in the Month of January, 1982 stating that the conduct of the landlord respondent herein, who has received rents pending the R.C. amounts to waiver and in turn creates a fresh tenancy in favour of the petitioners herein. The averments in the said I.A. are that the petitioners have been paying the rent regularly and in 1977 the landlord asked for enhancement of recent and while mediation was going on, the landlord suppressing the fact of mediation and keeping the petitioner in dark, has resorted to filing this application. Thy eviction petition was filed on 22-9-1977 on the grounds that the schedule premises is required by the landlord for his personal occupation and that the tenants have committed wilful default in payment of rents. During the correspondence the tenants sent a draft for Rs. 4,200/- to the counsel for landlord, which wss encashed on 30-6-1977 and a notice was also issued to the petitioner-tenants that the amount covered by the said draft was accepted subject to his client's contentions. In the notice, the respondent-landlord was called upon to name the bank but he has not done so. On 16-8-1977 the petitioners have also sent a Registered Notice calling upon tho respondent to name the bank, to which there was no reply. On 6-9-1977 the petitioners have sent a draft for Rs.700/- covering the rent for August, 1977 to the respondent, which was encashed without any demur or protest. On 5-10-1977 the petitioners have sent a draft for Rs. 700/- on Vysya Bank, being the rent for September, 1977. Again on 7-11- 1977, another draft for Rs. 700/- covering the rent for October, 1977 and on 7-12-1977 for November, on 6-1-1978 a draft for Rs. 700/- being the rent for December, 1977 and on 5-2-78 and on 13-3-1978 drafts for Rs, 700/- were sent, being the rents for January and February, 1978 respectively. All these payments were received by the landlord. Further, the payments starting from 5-10-1977 onwards by means of drafts were received and encashed and for this period no receipts were issued by the respondent. The petitioners have been sending the rents with the specific intention of establishing the tenancy. The landlord- respondent, it is clear from his conduct, has abandoned the conditions previously purported to be imposed and has acknowledged the rents for these months without any demur. The respondent-landlord has received the rents from month to month from the petitioners. Though earlier, the landlord intimated by notice the termination of tenancy by his subsequent actions and acceptance of rents without demur has assented to the petitioners continuing in possession with the intention of creating a fresh tenancy and thus a new tenancy came into existence. Hence the Rent Controller cannot determine the rights and liabilities of the parties in respect of the new tenancy in the application.
(2.) Counter also was filed where in it was stated that there was no question of accepting the rents without any demur. In fact, it has been made explicit, after receipt of the D.Ds., in the reply notices that the tents have been accepted without any prejudice to his rights and further, that under Section 11 of the Rent Control Act, it is incumbent upon the tenant to continue to pay the rents, if he intends to contest the eviction petition. Therefore, the acceptance of rents, cannot be said to be amounting to waiver so as to give rise to a fresh tenancy.
(3.) The Rent Court while observing that in none of the letters sent by the tenants along with the D.Ds. it has been stated that it is towards the new tenancy agreement, and relying on the decisions in Ganga Dutt Murarke vs Kartik Chandra Das & Others (1) AIR 1961 SC 1067. and Raikh ushra vs Baik Jarbai (2), AIR 1949 FC 124. held ; "In view of the above decisions of the Supreme Court and Federal Court and having regard to Section 11 of the Rent Control Act, under which the tenant has to pay arrears of rent and also has to continue the payment of rent during the pendency of eviction petition, no fresh tenancy springs into existence under Section 116 of the T P Act by acceptance of rent by the landlord." On appeal, the same was confirmed. Hence this Revision.;

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