Leonard Stone, Kt. , C. J. - (1.) THIS is an appeal from the decision of Mr. Justice Blagden dated December 17, 1943. The point raised is a short one, and is whether the acceptance of a payment after notice to quit waived the notice, as it is sometimes described, and in effect created a new tenancy.
(2.) NOW, it is necessary to say something with regard to relevant dates. It appears that in February of 1943 the landlords, who are the respondents to this appeal, were minded to get possession of these premises if they could, and under the supposition that the whole of the Bombay Rent Restriction Order, 1942, was valid and effectual, they applied to the Controller, and ultimately, after having gone to the Collector, they got a certificate saying that the premises were needed for their own occupation. That certificate is dated April 19, 1943. Accordingly, on the following day, April 20, they served a notice to quit on their tenant, the appellant to this appeal. No point turns on the validity of that notice. The notice expired on June 2, and on June 7, this suit was filed, and be it noted in passing that in the prayer to the plaint the respondents ask (a) for an order for delivering up of vacant possession, and (b) that the defendant might be ordered to pay compensation for use and occupation of the premises from June 3, 1943, till vacant possession given, at Rs. 181 per month. What subsequently happened was as follows : On July 10, 1943, a cheque was sent with a covering letter by the appellant to the respondents, and the covering letter says this : Please find herewith my cheque for Rs, 181 being the rent for the month of Jeth. On July 22 the respondents cashed that cheque, and on August 13 of the same year they sent a receipt. In fact there are two receipts, because the rent was split up between the flat and the garage. The receipt for the rent of the flat is in the following terms : For rent including municipal taxes for Block No. 6 on the 2nd floor of INDIRA situated on plot No. 15A of the West Chaupaty Estate, Babulnath Road, Bombay, for the month of Jeshtha 1919 and then the amount is stated, and that is signed by the agent, but one of the landlords respondent No. 1, endorsed on the bottom : "Received as compensation for use and occupation," and signed his own name. Three days previous to the receipt of that receipt the appellant had sent the rent for the next month, namely, on August 10, and it does not appear that any receipt was ever sent in respect of that payment. But for the following month payment was made on September 9, and there is some degree of particularity this time in giving the receipt : since the word " Rent" is struck out and " Compensation for use and occupation " is written in instead. I think it is to be noticed that the appellant sent this third payment after he had received the receipt for the first payment. Two further payments were made in October and November, and receipts were ultimately given in a like form for " compensation for use and occupation ", and not for rent.
(3.) THE written statement of the appellant was not in fact put in until December 1, 1943, but the delay was due to the fact that on July 12, 1943, Mr. Justice Coyajee made an order against the appellant for possession which was appealed against, and which appeal was allowed on November 12, 1943. What is said by Sir Jamshedji Kanga on behalf of the appellant is this : That the acceptance of rent is a waiver of the notice to quit, even though the landlord may have received the payment as compensation for use and occupation, because the sums of money were in each case tendered as rent, and, therefore, they could not be accepted on any other basis. Certain well-known English cases were relied upon ; but before I turn to them, it is necessary to look at the relevant sections of the Transfer of Property Act, which govern this matter. They are s. 111, Clauses (g) and (h), Section 112, Section 113 and Section 116.;