Decided on January 30,1967

KANTILAL Appellant
ALIHUSSAIN Respondents


- (1.) THIS is a second appeal by a tenant from the concurrent judgments of ejectment from a house in an area to which the Accommodation control Act does not apply. There is no controversy either about the landlord-tenant relationship or the validity and service of the notice under section 106, transfer of Property Act. However, the plaintiff-landlord having accepted the earliest out of a series of money orders undesignated by the due months, the tenant contended that the notice had been waived and the landlord had rendered himself incompetent to bring the suit. This contention being repelled by the two lower Courts the tenant has come up in second appeal.
(2.) THE facts for our purpose are simple and practically common ground. The plaintiff-respondent owns a house in a village which he let out to the defendant-appellant on 25-10-1961 on a rental of Rs. 12/-per month, the tenancy being monthly commencing on that date ; there was also a rent note. Things went on smoothly for a few months, the tenant paying rent in the usual manner till on 12-1-1962 the plaintiff noticed him to quit with effect from the 25th February 1962. It is common ground that the notice was served in time and was valid in terms of section 106, Transfer of Property Act. The defendant did not deliver possession on that date but continued to be in the premises. After February he sent some money orders one of which, handed in at the post office on 22-3-1962 for Rs. 12 /- was accepted by the plaintiff on 3-4-1962. The money order or the coupon attached to it did not mention for what month this was supposed to be the rent, though the figure indicated that the payment was made by the defendant either as rent (or what is equivalent in the popular mind) as compensation for the use of the property during one month. There was no letter from either side. In the next two months also the defendant sent similar money orders which, however, were not accepted. Three months later the plaintiff brought his suit.
(3.) THE sheet anchor of the defendant's case was that the plaintiff had in all accepted and admittedly accepted money for "five months". This includes which in fact is the last payment, the money order sent on 22nd March and accepted on the 3rd April, the four other payments being Rs. 12 /- each for the months ending on the 25th of November, December, January and February. These four payments have not been supported by any receipts; but as the plaintiff himself speaks of ''five payments" and this money order is one of them we can safely accept the story given by the defendant, the controversy being in fact as to the legal effect. The defendant's argument is that for the last of these five months, that is to say, for the month between the 25th February and the 24th March 1962 rent had been accepted by the plaintiff, and accordingly the notice which terminated the tenancy on the 24th or the 25th of February had been waived. Therefore, it was urged, the suit should fail. As against it, the plaintiff argued that waiver is a bilateral transaction and until there was a clear indication of the plaintiff's intention to waive the notice a waiver cannot be inferred. What had really happened was, according to the plaintiff, that the defendant was sending money orders and in due course plaintiff accepted one of them. This was inadvertent, especially, because the money order did not mention that it was meant to be the rent for the month beginning with the 25th of february. In any case money was due to the plaintiff for the use of the premises and such an acceptance of money order which was undesignated cannot become a waiver. When the plaintiff noted that more money orders were coming he realised what the defendant was up to and refused them. Thus the question resolves as to whether in these circumstances there has been a waiver on the lines suggested in Illustration (a) to section 113 of the Transfer of Property Act.;

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