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2006 Supreme(Kar) 663
Karnataka High Court
VASANTHKUMAR D.SHAH - Appellant
Versus
SUGANDHA RAMAN - Respondent
Decided On : 08-29-06
Civil Revision Petition No. 170 of 2006 connected with Civil Revision Petition Nos. 1045 and 1046 of 2005 and 153 of 2006.
S.K V. Chalapathy, Srinatha G.B., B.S. Raghu Prasad,V. Ramesha Babu,Sri K Raghavendra Rao, Sri A. Madhusudhana Rao, V. Vidya,N. Sunitha,Sri L.S. Venkatakrishna,Sri D.R Basavarajappa,Sri KM. Chandra Prasad
The acceptance of rent subsequent to the filing of the suit will not operate as a waiver as the landlord's election to institute the suit for ejectment is irrevocable. Waiver under Section 113 depends upon the intention of both the lessor and the lessee, and the unilateral decision of the lessor is the decisive factor for waiver under Section 112.
Headnote:
Waiver of Notice to Quit - Tenancy - Karnataka Rent Act, 1999 - Section 113, Section 111, Section 112, Section 116 - The court considered the acceptance of rents by the landlord after the termination of the tenancy and its implications under the Transfer of Property Act, 1882. The court held that the acceptance of rent subsequent to the filing of the suit will not operate as a waiver as the landlord's election to institute the suit for ejectment is irrevocable. The court also emphasized that waiver under Section 113 depends upon the intention of both the lessor and the lessee, and the unilateral decision of the lessor is the decisive factor for waiver under Section 112. The court rejected the contention that the acceptance of rents by the respondents subsequent to the quit notice constituted a waiver, as there was no evidence to support the intention of the parties to treat the lease as subsisting.
Fact of the Case:
The petitioners were tenants of commercial premises under the respondent-landlords. The landlords issued quit notices and filed suits for ejectment. The petitioners contended that the acceptance of rents after the termination of the tenancy amounted to waiver of notice to quit.
Finding of the Court:
The court found that the acceptance of rent subsequent to the filing of the suit will not operate as a waiver as the landlord's election to institute the suit for ejectment is irrevocable. The court also emphasized that waiver under Section 113 depends upon the intention of both the lessor and the lessee, and the unilateral decision of the lessor is the decisive factor for waiver under Section 112. The court rejected the contention that the acceptance of rents by the respondents subsequent to the quit notice constituted a waiver, as there was no evidence to support the intention of the parties to treat the lease as subsisting.
Issues: The main issue was whether the acceptance of rents by the landlord after the termination of the tenancy amounted to waiver of notice to quit.
Ratio Decidendi: The court held that the acceptance of rent subsequent to the filing of the suit will not operate as a waiver as the landlord's election to institute the suit for ejectment is irrevocable. The court also emphasized that waiver under Section 113 depends upon the intention of both the lessor and the lessee, and the unilateral decision of the lessor is the decisive factor for waiver under Section 112. The court rejected the contention that the acceptance of rents by the respondents subsequent to the quit notice constituted a waiver, as there was no evidence to support the intention of the parties to treat the lease as subsisting.
Final Decision: The court rejected the contentions advanced by the petitioners and upheld the orders of the Trial Court, granting time to vacate the premises.
Common questions of law and that of fact arise for decision making in all these petitions, hence with the consent of the learned Counsel for the parties, the petitions are clubbed, heard together and are disposed of by his common order.
2. Facts in brief:
I. C.R.P. No. 170 of 2006:
The petitioner on 8-6-1967 and 24-6-1968 was inducted as a tenant of shop premises Nos. 217/D and 217/C, 27th Cross, 8 F' main, 3rd Block, Jayanagar, Bangalore-11, respectively, under the respondent-landlord, who issued a notice dated 17-6-2002 determining the tenancy with effect from 31-7-2002 to which the petitioner caused a reply dated 23-7-2002. The landlord on 18-12-2002 instituted SC No. 2078 of 2002 before the Chief Judge, Court of Small Causes, Bangalore, for ejectment, which was opposed by filing a written statement of the petitioner inter alia contending that the two tenancies being separate and distinct, on two dates, are protected by the Karnataka Rent Act, 1999 and that there is a waiver of notice to quit.
The 2nd plaintiff examined himself as P.W. 1 produced four documents marked as Exs. P. 1 to P. 4 while the petitioner-defendant examined himself as D.W. 1 produced two documents marked as Exts. D. 1 and D. 2. The Trial Court having considered the evidence both oral and documentary allowed the suit by judgment and decree dated 19-1-2006 granting two months time to the petitioner to vacate and handover vacant position of the property.
II. C.R.P. No. 1045 of 2005:
The petitioner's tenancy over a portion of the ground floor of the non-residential premises No. 35, KG. Road, Bangalore, under the respondent-landlord when determined by the quit notice dated 17-3-2003, was responded to by a reply dated 3-4-2003. Non-compliance of the demand in the notice, impelled the landlord to institute SC No. 815 of 2003 for ejectment, before the Chief Judge, Small Causes Court, Bangalore.
The petitioner entered appearance and opposed the suit by filing written statement dated 4-9-2003 inter alia contending that the quit notice is contrary to law and the failure to demolish, reconstruct and redeliver possession of parties of the premises, in terms of the compromise recorded in the order in an earlier petition for eviction in H.R.C. No. 80 of 1980 filed by the respondent against M/s. Lakur and Company and another tenant under the Karnataka Rent Control Act, 1961, the respondent was disentitled to a decree for ejectment.
The landlord-Sangha examined its Secretary as P.W. 1, produced three documents marked as Exs. P. 1 to P. 3 while the petitioner examined its Accountant and Power of Attorney Holder as D.W. 1 produced 11 documents marked as Exts. D. 1 to D. 11. The Trial Court allowed the suit by judgment and decree dated 21-9-2005 granting two months time to vacate and hand over vacant possession of tenanted premises.
III. C.R.P. No. 1046 of 2005:
The petitioner's tenancy over a portion of the ground floor and 1st floor of the non-residential premises No. 35, KG. Road, Bangalore, belonging to the respondent-landlord, when determined by quit notice dated 17-3-2003 was responded to by a reply dated 3-4-2003. Failure to vacate and handover vacate possession of the said premises impelled the landlord to institute SC No. 813 of 2003 for ejectment, before the Chief Judge, Small Causes Court, Bangalore.
The petitioner entered appearance, opposed the suit by filing statement of objections dated 4-9-2003, inter alia contending that the quit notice is contrary to law and the failure to demolish, reconstruct and redeliver possession of the portions of the premises in terms of the compromise recorded in the order in an earlier eviction petition H.R.C. No. 80 of 1980; filed by the respondent-landlord against M/s. Lakur and Company and another tenant, under the Karnataka Rent Control Act, 1961, the respondent was disentitled to a decree for ejectment.
The landlord-Sangha examined its Secretary as P.W. 1 produced six documents marked as Exs. P. 1 to P. 6 while the pe
