2006 Supreme(Cal) 279

High Court Of Calcutta
Japan Kumar Dutt
KHANA LAHIRI - Appellant
Versus
SUNITI KUMAR CHATTERJEE - Respondent
S. A. 637 Of 1991
Decided On : 05/06/2006

Headnote:

LANDLORD-TENANT - LEASE - TERMINATION - WAIVER - NOTICE - WEST BENGAL PREMISES TENANCY ACT, 1956 - Section 13(6) - TRANSFER OF PROPERTY ACT, 1882 - Section 113 - Where a landlord issues a notice to terminate a tenancy and the tenant continues to pay rent and the landlord accepts such rent, there may be a waiver of the notice and the original lease may continue. The question of waiver depends on the intention of the parties and their conduct. In the instant case, the landlord issued a notice to terminate the lease but continued to accept rent from the tenant even after the expiry of the period mentioned in the notice. The tenant also continued to pay rent and did not vacate the premises. The landlord ultimately served a fresh notice treating the lease as subsisting and asking the tenant to vacate the premises on the expiry of the lease by efflux of time. Held, that the landlord's conduct showed an intention to treat the lease as subsisting and the tenant impliedly consented to the waiver of the notice dated 17.11.1966 and to the continuance of the original lease.

Fact of the Case:

The plaintiff filed a suit against the defendant for recovery of khas possession and damages of the suit property on the ground of efflux of time. The plaintiff claimed that he was the absolute owner of the suit property which was a godown. The defendant was a lease-hold tenant under the plaintiff in respect of the said godown for a period commencing from 01.07.1959 and ending with the last date of July, 1980. The plaintiff alleged that the defendant failed to quit and vacate the suit premises and had been occupying the same as a trespasser since 01.08.1980. The defendant contested the suit by alleging that the lease was forfeited by the plaintiff on the ground of breach of terms of the lease and as such the lease came to an end. The trial court found that the lease had been rescinded and the onus of proving that the lease is subsisting lies upon the plaintiff but the plaintiff has failed to discharge such onus and as such the lease became inoperative in terms of the said notice dated 17.11.1966. The trial court also held that deposit of rent with the Rent Controller also proves that the defendant is not a lease-hold tenant but a monthly tenant under the West Bengal Premises Tenancy Act. The plaintiff preferred an appeal before the learned First Appellate court challenging the judgment and decree passed by the learned trial Court. The learned First Appellate Court allowed the appeal and set aside the judgment and decree of the learned trial Court. The defendant has preferred this appeal.

Finding of the Court:

The court found that the notice dated 17.11.1966 stood waived and the defendant/appellant did not become a tenant under the West Bengal Premises Tenancy Act, 1956. The court also found that the learned First Appellate Court was not right in relying upon the evidence of the defendant/appellant before the Building Tribunal for the purpose of holding that there was a clear admission on the part of the defendant/appellant that he claimed to be a lease-hold tenant even 5 years after the notice to quit dated 17.11.1966.

Issues: 1. Whether after the issuance of the notice dated 17.11.1966 allegedly terminating the lease, respondent's acceptances of rent paid by the defendant-appellant constituted waiver of the said notice dated 17.11.1966. 2. Whether the payment and acceptance of rent in between the parties even after the issuance of the said notice dated 17.11.1966 had the effect of bringing the tenant under the purview of the West bengal Premises Tenancy Act, 1956 and making the original lease ineffective. 3. Whether the learned First Appellate Court was right in relying upon the evidence of the defendant/ appellant in a certain proceeding before the Building Tribunal and treating the same to be an admission on the part of the defendant/appellant in the facts and circumstances of this case.

Ratio Decidendi: 1. Under Section 113 of the Transfer of Property Act, a notice is waived if the act of the person giving the notice shows an intention to treat the lease as subsisting provided there is an express or implied consent on the part of the person to whom the notice is given. 2. If the landlord goes on accepting rent from tenant even after issuing the notice terminating the tenancy during the period of lease, it does not necessarily mean that the landlord has assented to the creation of new tenancy; on the other hand, the conduct of the parties and circumstances may very well indicate that the original lease continued.

Final Decision: The second appeal is dismissed. There will, however, be no order as to costs.