- (1.) THIS revision application under S. 25 of the Provincial Small Cause Courts Act is directed against the judgment and decree D/- 8-1-1997 recorded by the District Judge. Mathura, exercising small causes powers in SCC Suit No. 6 of 1994. On an undertaking by the plaintiffrespondents the execution of the decree has been kept suspended till the date of judgment.
(2.) THE suit was filed for eviction of the tenantrevisionists from the suit premises situated in the city of Mathura. THE defendants had admittedly been tenants on month to month basis in the suit premises on a rate of rent of Rs. 5,705/- per month. Initially the tenancy was created for a period of three years with stipulation for extension of the period up to 3 years more subject to enhancement of rent by 15 per cent. THE extended period of tenancy was to expire on 15th Dec. 1993. Before the aforesaid date of expiry, the plaintiff served a notice on the defendants on 20-7-1993 demanding vacant possession of the suit premises after expiry of extended period of tenancy. On receipt of the notice, the defendants started negotiating for taking the building on a fresh lease on 20 percent enhancement of the rate of rent for a further period of five years. THE negotiations, however, failed. THE building was constructed, according to the plaintiff, in the year 1987, the rate of rent was more than Rs. 2000/- per month and the provisions of the U. P. Act No. 13 of 1972 were not applicable for any matter relating to the landlord tenant relationship. A notice under S. 106. T P Act was sent to the tenants on 30th Aug. 1994, for terminating their tenancy. Replies were sent to such notice but possession was not made over. The suit was contested by the defendants. The tenancy was dot denied nor was the rate of rent. It was asserted that the original period of lease was extended up to 15th Nov. 1993. It was asserted, however, that the building was constructed for more than 50 years back and on that score exclusion of operation of the U. P. Act No. 13 of l972 could not have been claimed. The defendants highlighted the fact that even after the receipt of the notice of termination of tenancy, the defendants had made over the rent of the building to the plaintiff who had accepted the same and this acceptance was under the law a waiver of the notice of determination of the tenancy. The suit was filed, according to the defendant-appellant, only with a view to enhance the rent of the building. The trial Court considered the question of applicability of the U. P. Act No. 13 of 1972 to the present set of facts and also took up into consideration the question whether the notice of determination of tenancy was served by any action of the plaintiffs. He negatived both the objections and had decreed the suit.
(3.) THE revision was pressed basically on the question of waiver only. THE learned counsels submitted case-laws in support of their arguments. Reliance was further placed on the statement of the plaintiff to show that rent was accepted even after service of the termination of notice. Reference was made to deposition of PW- 1, a copy of which was placed before me. This P. W. admitted in paragraph 6 of his cross-examination that New India Assurance Company had deposited the sum due as rent and he had withdrawn the same. He admitted that he did not intimate the New India Assurance that the same was being withdrawn as damages for unlawful occupation, or it was accepted under protest. He, however, asserted that he had given a separate receipt for such sum. A reading of the judgment of the trial Court indicates that it had engaged itself to the fact and the law on the question of waiver of the notice. The rent after the date of notice was paid through a cheque accompanied by a forwarding letter D/- 17-10-1994. This paper was produced from the custody of the plaintiff and formal proof thereof was waived. On this paper there has been an endorsement of the plaintiff that it was accepted under protest. The trial Court, however, held that the paper came from the custody of the plaintiff only and it was a statement of the plaintiff and he could not have relied on his own admission. But the trial Court relied on another document, a letter from the plaintiff D/- 15-7-1996 whereby the plaintiffs intimated that all the sums received by them were under protest without affecting their right to seek eviction of the tenants and the sums were accepted as damages for unlawful occupation of the defendants of the suit premises. The trial Court relied on the statement of the D. W. 1 to the effect that after the service of the notice for determination of tenancy the plaintiffs accepted the rent but started writing that rent was being accepted under protest. The plaintiff asserted in his statement that whenever any payment was made, a written receipt was given to the defendants, with endorsement of "under protect. " Such receipts were not produced in the Court. The trial Court discussed the case -law cited before it and was of the view that there was no intention on the part of the plaintiff to waive the notice by simple acceptance of rent under protest.;