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Andhra Pradesh High Court
Judges : A.GOPAL RAO, A.R.LAKSHAMANAN, CHENNAKESAVA REDDY
Adapa Abbayi - Appellant
Versus
Reddipantulu Choudhry - Respondent
Decided On : 11-01-73
TENANCY ACT - SECTION 13(A) - WAIVER - ACCEPTANCE OF RENT AFTER DEFAULT - EFFECT - EVICTION - MAINTAINABILITY - MANDATORY PROVISIONS - STRICT CONSTRUCTION - EQUITABLE PRINCIPLES - APPLICABILITY.
Fact of the Case:
The respondent filed an application under Section 13(a) of the Andhra Tenancy Act, hereinafter called the Act, for terminating the tenancy and eviction of the petitioner herein, the tenant. It was alleged that petitioner had to pay rent for the fasli year 1374 on 15/01/1965, but paid the amount in two instalments, on 6-5-1965 and the other on 20-7-1965. Rent for the Fasli year 1375 was due on 15-1-1966 but was paid on 6-3-1966. Similarly the rent for the Fasli year 1376 although due on 15-1-1967, was actually paid on 24-3-1967. For the Fasli Year 1377 the rent was paid on 3-4-1968 although it fell due on 15-1-1968.
Finding of the Court:
1. The principle of waiver is not confined to the Transfer of Property Act or the Contract Act. It applies to other cases also. Waiver is the abandonment of a write is either express or implied from conduct. 2. The equitable principle embodied in Section 112 would govern a case falling under Section 13 (a) of the Act. 3. The equitable principles underlying Section 112 of the Transfer of Property Act apply to cases coming under the Act. The contention that the Act is a special enactment and therefore the said principles would have no relevance is unacceptable. 4. Whether Section 13 of the Act is mandatory or not or whether it should be construed strictly or liberally and even if the provisions of Chapter V of the Transfer of Property Act in terms may not apply, since there are no indications contra anywhere in the Act, the equitable principle of waiver would apply to the cases arising under the Act. 5. The words "has failed to pay" clearly denote that the tenant must have continued to have failed to pay the rent. In other words, there must be a subsisting liability to pay the rent on the date of the petition.
Issues: 1. Whether the landlord waived his right to file an application for determining the tenancy and his eviction on one or more of the denominated grounds by accepting the rent after the default according to the section? 2. Whether the equitable defence of waiver is taken away by any provision of the Act?
Ratio Decidendi: 1. The very opening words of Section 112, of the Transfer of Property Act "a forfeiture under Section 111, clause (g) is waived" indicate that this section is contextually connected with Section 111 (g ). If Section 111 (g) cannot in terms apply or is inconsistent with Section 13 of the Act, then it must follow Section 112 also would not in terms apply. We have seen the difference between Section 111 (g) of Transfer of Property Act and Section 13 of the Act. While under Section 11 (g) had the Transfer of Property Act, the landlord can determine the tenancy by a notice, such a tenancy under Section 13 of the Act can be determined only by filing an application to the Tahsildar. Thus the mode of determining the tenancy differs materially and that makes the important distinguishment. When there is thus no right to forfeiture of tenancy by issue of notice available to a landlord under the Act, it is not possible to apply in terms Section 112 of the Transfer of Property Act. 2. The equitable principle of waiver would apply to the cases arising under the Act. There is no general policy in the matter of landlord asking for eviction under Section 13. It is evident that a landlord who has benefit given to him under Section 13 of the Act may waive it if he thinks fit. If he receives the rent with knowledge of breach, the legal consequences flow that he had waived his right to take action under Section 13 and the equitable defence of waiver would be available to the tenant in such cases. 3. The words "has failed to pay" clearly denote that the tenant must have continued to have failed to pay the rent. In other words, there must be a subsisting liability to pay the rent on the date of the petition. The words are not "had failed to pay" which may have indicated that even if he had failed to pay the rent due but has paid it subsequently, the cause of action once arisen can be taken advantage of by the landlord. It will make a mockery of Section 13 if the landlords are permitted to receive the rent even after the breach and still protect their right of action against the tenant.
Final Decision: Revision petition allowed.
( 1 ) THIS revision petition raises a question of law which is of far-reaching importance. It arises in the following circumstances.
( 2 ) THE respondent herein filed an application under Section 13 (a) of the Andhra Tenancy Act, hereinafter called the Act, for terminating the tenancy and eviction of the petitioner herein, the tenant. It was alleged that petitioner had to pay rent for the fasli year 1374 on 15/01/1965, but paid the amount in two instalments, on 6-5-1965 and the other on 20-7-1965. Rent for the Fasli year 1375 was due on 15-1-1966 but was paid on 6-3-1966. Similarly the rent for the Fasli year 1376 although due on 15-1-1967, was actually paid on 24-3-1967. For the Fasli Year 1377 the rent was paid on 3-4-1968 although it fell due on 15-1-1968.
( 3 ) THUS even though on the date of petition, no rent was due, the petition was based on the defaults for the four years as above inasmuch as the rents were not paid on due dates. Even though the rents were subsequently accepted by the landlord, the said defaults were treated as providing cause of action for eviction.
( 4 ) THE petition was resisted by the tenant on two grounds. Firstly, it was contended that the landlord waived his right to file the application for determination of tenancy and eviction as and when he accepted the rents knowing full well that the tenant had committed defaults. Secondly it was urged that since no amount of rent was due on the day when the petition under Section 13 (a) of the Act was filed, it was not maintainable under the said section as the tenant cannot be said to have failed to pay the rent.
( 5 ) THE Tahsildar, Rajahmundry by his order dated 29-4-1969 held that as there were no arrears, it was not justifiable to evict the tenant. He therefore dismissed the petition.
( 6 ) THE Sub-Collector on appeal by the landlord held in his order dated 14-4-1972 that "acceptance of the rent by the landlord after the due date does not act as waiver for the default made by the tenant". He relied on Ramachandra Rao v. Venkata Lakshminarayana, (1963) 2 Andh WR 235 = (AIR 1964 Andh Pra 31 ). As a result, he directed the eviction of the tenant.
( 7 ) THE tenants revision in this court came first before Muktadar J. He noticed that there are conflicting decisions of this Court on the question as to whether the acceptance of the rent by the landlord after the due date would amount waiver or not. He therefore referred the case to a Bench.
( 8 ) THE matter was then placed before Bench. In view of the importance of the question, the Bench by its order dated 10-9-1973 referred the case to a Full Bench and that it is how the matter has come before us.
( 9 ) TWO questions were urged before us. The first contentions was that since the landlord knowing the default each time accepted the rent after the due date he had waived his right to file a petition under Section 13 (a) of the Act. The second contentions was that as no rent was due on the date of the petition under Section 13 (a) of the Act, it was not maintainable.
( 10 ) WE shall take the first submission for consideration. We must read Section 13 (a) of the Act. It reads : "notwithstanding anything contained in Section 10, 11 and 12 no landlord shall be entitled to terminate the tenancy and evict his cultivating tenant during the currency of a lease except by an application made in that behalf to the Tahsildar and unless such cultivating tenant-- (a) has failed to pay the rent due by him within a period of one month from the date stipulated in the lease deed, or in the absence of such stipulation, within a period of one month from the date on which rent is due according to the usage of the locality, and in case the rent is payable in the form of a share in the procedure, has failed to deliver the produce at the time of harvest. . . . . . . . . . . . . . . . . . "
( 11 ) IF we read the said provision analytically, it would be seen that notwithstanding anything contained in Section 10, 11, 12 of
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