J.C.Gupta, J. - (1.) This is tenant's petition whereby the petitioner has challenged the correctness of the judgment and order dated 19.11.1992 passed by the respondent No. 2 and the order dated 28.11.1997 passed by respondent No. 1.
(2.) The dispute relates to a shop which is admittedly in the tenancy of the petitioner Plaintiff-respondent No. 3 filed suit for ejectment, arrears of rent and for mesne profitagainst the petitioner alleging that the provisions of Act No. 13 of 1972, hereinafter referred to as the Act. were not applicable to the disputed shop and the tenant's tenancy has been duly terminated by a registered notice dated 5.12.88 which was got sent back by the tenant. Another notice was sent and after its service, when the petitioner did not respond, decree for eviction was claimed. The defence was that shop was not exempted from the operation of the Act and the notice dated 28.1.89 sent by the plaintiff was received and duly replied to. Before the trial Court the only issue which was pressed and framed was whether the provisions of the Act were applicable to the shop in question or not. The trial Court decided the said issue in favour of the landlord by holding that the building in question was subject to assessment and the firee assessment came into effect on 1.4.89. Taking this date as the date of construction of the shop in question, it was held by the trial Court that the Act did not apply inasmuch as the period of more than 10 years had not elapsed since the date of construction of the shop. Aggrieved by the judgment of the trial Court the petitioner filed revision and it appears that before the Revisional Court it was argued on behalf of the petitioner that the notice of termination of tenancy stood waived as the plaintiff landlord has been accepting rent from the petitioner not only after the service of the notice but also during the pendency of the suit and revision hence no decree of eviction could be passed against, the petitioner on the basis of notice in question. The Revisional Court. however, did not accept the said contention and maintained the decree passed by the the trial Court by dismissing the revision by the impugned judgment dated 28.11.97.
(3.) Before this court the learned counsel for the petitioner argued that as per the landlord's case, notice of termination which was the basis of suit was served upon the petitioner in February, 1989 but rent up to June, 1992 and onwards has been accepted by the plaintiff and in order to prove this the petitioner filed rent receipts also which formed part of the record and in this view of the matter the notice stood waived and both the courts below have committed a manifest error of law in passing the decree of eviction. He argued that the view of the Revisional Court that once the suit for eviction has been instituted, acceptance of rent would not amount to waiver of notice is against law and in support of his contention, learned counsel placed reliance on the case of Mangol Sen v. Smt. Krishna Devi. In that case the question of law referred to the Division Bench by a learned Single Judge was whether acceptance of rent after the institution of the suit would amount to waiver of notice under Section 113 of the Transfer of Property Act (in short the T.P. Act) in a case where the U.P. (Temporary) Control of Rent and Eviction Act has no application. The Division Bench after taking note of several earlier decisions of the Court came to the conclusion" .......in our opinion though the in stitution of a suit may be a circumstance to be taken into consideration while determining the intention of the lessor to treat the lease as subsisting or not, it per se cannot be a condition or a circumstance which may debar the parties from treating the lease as subsisting by voluntarily waiving the notice to quit the property leased. Section 113 of the T.P. Act read with Section 116 makes it clear that the parties to the contract of lease have a right to continue the lease even after it comes to an end. If two persons have a right to create a lease at any time there can be no reason for holding that they cannot continue the lease by waiving the notice to quit. The notice to quit being the act of a party himself can always be waived by him. The effect of waiver on the suit will only be that the plaintiff will no longer be entitled to get the relief of ejecting the tenant. The suit for ejectment of a tenant is filed on the ground that the expiry of the notice to quit given under Section 111, clause (h) of the T.P Act had rendered the possession of the lessee without title and the landlord with title "seeks to eject him. But once the notice to quit is waived, that is to say withdrawn by accepting the rent subsequent to the date of expiration of the notice, the lease becomes subsisting and possession of the lessee becomes one with title and the decree for ejectment cannot be passed". It was further observed in paragraph 5 of the said report : "The distinction between Section 112 and Section 113 of the T.P. Act also indicates that the institution of the suit does not take away the right of the parties to waive the notice to quit the property leased and to continue the lease. In the case of forfeiture, the law permits the waiver of the forfeiture by acceptance of rent only till the suit for the ejectment of the lessee on the ground of forfeiture is instituted. Any acceptance of rent thereafter does not amount to waiver. On the other hand, Section 113 of the Act imposes no such condition and the institution of the suit cannot be a ground for debarring the parties to continue the lease. In our view a lessor has an unfettered right under Section 113 of the Act to waive the notice given by him under Section 111(h) of the T.P. Act, if the lessee expressly or impliedly consents to continue the lease and this right is not taken away by the institution of a suit to eject the lessee".;