Decided on January 04,1961

MAYA SINGH Appellant


- (1.) THIS second appeal on behalf of the tenant defendant involves a question which may be described as whether defaults can be tacked. The learned Advocates for both the sides could not refer to any decision exactly on the point and the point is somewhat important. The facts are that the property in dispute belonged to five brothers, who were joint owners of the premises in suit. There was a partition suit No. 1811 of 1952 in this High Court in respect of their joint property and by virtue of the partition decree the plaintiff became the sole owner of the suit premises together with all arrears of rent due from the tenants and the Official Receiver delivered possession of the premises to the plaintiff on the 15th July, 1955.
(2.) THE position is that the tenant defaulted in payment of rent from July, 1954 and there is no dispute that the tenant defaulted in payment of rent referred to in clause (i) of the Proviso to sub-section (1) of section 12, Rent Control Act, 1950, on three occasions Within a period of eighteen months. This is not disputed but it is contended that the entire default between the period of July 1954 and July 1955 was during a period when five brothers were the joint owners of the property and not the plaintiff alone and, therefore the plaintiff is not entitled to get the benefit of the West Bengal Premises Rent Control Act of 1950. It is hardly necessary to say that the suit was a suit for ejectment and the tenant was the defendant who claimed protection under the West Bengal Premises Rent Control Act of 1950. The ground alleged by the plaintiff in his plaint is that the defendant was not entitled to the protection of the Act because of His own default as stated already. It is stated further by the defendant that there was a waiver of the notice to quit because of subsequent acceptance of rent. It was also said that, as the defendant had instructions to pay rent to the landlord, only when bills were submitted, they were not defaulters at all. With regard to the first question of waiver of the notice to quit, I am afraid, there is nothing on record to show that when sums of money were paid to the plaintiff, the plaintiff accepted them qua rent. Mr. Choudhury refers to section 113 of the Transfer of Property Act, but that refers to acceptance of money qua rent, not acceptance of money qua debt. Hence, there is no question of waiver of the notice to quit. The next point is that by acceptance of money defaults were waived. Defaults are something which are creatures of statutes and there is no estoppel against statute. The finding of the trial court on this point is that there was no waiver as the defendant had no assurance either from the Receiver or from the plaintiff and further the trial court says that there was no satisfactory evidence on the question of waiver. In the Appeal Court this question was not urged. The only point that was urged was that there was no default for three occasions within a period of eighteen months. In that view of the matter, I can not allow Mr. Choudhury to raise a question which involves determination of fact which was not raised in the Court of First Appeal. This point is overruled [after dealing with the question whether there were instructions to pay rent only when bills were presented, his Lordship continued. ]
(3.) I now come to the other point, namely, whether the default that was made by the tenant during the time the property was joint, could be availed of by the landlord or could jeopardise the interest of the tenant and deprive the tenant of his protection under the Rent Control Act of 1950.;

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