MOTI CHOWK, SHEOGANJ. - (1.) HEARD learned counsel for the parties.
(2.) THIS appeal is directed against the judgment and decree dated 26.05.2010 in appeal No.2/2010 � Rajesh Kumar vs. Manchha Ram passed by learned Additional District Judge (Fast Track), Sirohi, whereby he dismissed the appeal and upheld the judgment and decree dated 22.05.2008 passed by the learned Civil Judge (Jr.Division), Sheoganj in Civil Original Suit No.41/2003 � Manchha Ram vs. Rajesh Kumar, whereby he decreed the suit filed by the plaintiff � respondent for eviction and recovery of arrears of rent in respect of suit premises, viz. situated at AGAINST the concurrent decrees of eviction upon termination of lease under Section 106 of Transfer of Property Act, the courts below have granted the eviction decree in favour of the respondent � plaintiff and against the appellant � defendant. Aggrieved by the concurrent decree of the learned courts below, the appellant � defendant - tenant has filed the present second appeal before this Court under Section 100 CPC. The only contention raised in the memo of appeal is about the waiver of landlord having accepted the rent from the defendant � tenant after alleged termination of lease.
(3.) LEARNED counsel for the respondent � plaintiff, Mr. Sandeep Shah has relied upon a judgment of Hon'ble Supreme Court in the case of Sarup Singh Gupta vs. S. Jagdish Singh and others reported in 2006(3) RLW � 1868 and contended that mere acceptance of rent after notice terminating lease by landlord, does not amount to waiver on his part. The relevant portion is quoted below for ready reference. "In the instant case, as we have noticed earlier, two notices to quit were given on 10th February, 1979 and 17th March, 1979. The suit was filed oh June 2, 1979. The tenant offered and the landlord accepted the rent for the months of April, May and thereafter. The question is whether this by itself constitute an act on the part of the landlord showing an Intention to treat the lease as subsisting. In our view, mere acceptance of rent did not by itself constituted an act of the nature envisaged by Section 113, Transfer of Property Act showing an intention to treat the lease as subsisting. The fact remains that even after accepting the rent tendered, the landlord did file a suit for eviction, and even while prosecuting the suit accepted rent which was being paid to him by the tenant. It cannot, therefore, be said that by accepting rent, he intended to waive the notice to quit and to treat the lease as subsisting. We cannot ignore the fact that in any event, even if rent was neither tendered nor accepted, the landlord in the event of success would be entitled to the payment of the arrears of rent. To avoid any controversy, in the event of termination of lease the practice followed by courts is to permit the landlord to receive each month by way of compensation for the use and occupation of the premises, an amount equal to the monthly rent payable by the tenant. It cannot, therefore, be said that mere acceptance of rent amounts to waiver of notice to quit unless there be any other evidence to prove or establish that the landlord so intended. In the instant case, we find no other fact or circumstance to support the plea of waiver. On the contrary the filing of and prosecution of the eviction proceeding by the landlord suggests otherwise." ;