Valmiki J. Mehta, J (Oral)

1. No one was present on behalf of the respondent on the first call. No one is present for the respondent even on the second call. Respondent was not even present on earlier dates of hearings being 24.9.2013, 27.9.2013, 7.11.2013, 5.12.2013, 11.12.2013 and 17.12.2013. I have therefore perused the record and am disposing of this appeal.

2. The challenge by means of this appeal is to the impugned judgment of the appellate court dated 24.9.2012 by which the appellate court set aside the judgment and decree of the trial court dated 25.8.2011. The trial court by the judgment dated 25.8.2011 decreed the suit of the appellant/landlord under Order 12 Rule 6 CPC for possession against the respondent-tenant. The relevant observations of the trial court for decreeing the suit are contained in paras 5 to 9 of the judgment and which read as under:-

“5. The law is well settled in regard to the passing of the decree of possession in favour of the plaintiff. The plaintiff has to prove the three ingredients required for ejectment namely:

a) relationship of landlord and tenant,

b) rate of rent of above Rs. 3500/

c) service of notice of the termination of tenancy under Section 106 TPA.

6. In the present case, admittedly, the relationship of landlord and tenant has not been disputed between the parties. It is also not disputed by the parties that the rent of the suit property is Rs. 3,500/. In the present case the defendant has also not denied that he has received the legal notice dated 08.4.2010 issued by the plaintiff to the defendant however in the present case the defendant has stated that advance rent amount for six months was received by the plaintiff and the tenancy was extended . It will be relevant herein to have the relevant contents of para 6 of the W.S:

“In reply to Para No. 6 of the plaint it is submitted that execution of the Rent Agreement is not denied but as the Plaintiff has further received the rent of six months in advance, no question arises of talking about the previous agreement as the defendant is permitted by the plaintiff to live in the suit premises on the advance payment of rent. ”

7. The defendant has stated that as the rent has received and no notice has been received after the receiving the rent for the period of the six months and the tenancy was not terminated there after and he continue to be tenant. However the contentions raised by the defendant does not appear to be tenable. Admittedly plaintiff has not admitted that the tenancy of the defendant was extended after issuance of notice.

8. It is also well settled that even if the rent is received by the plaintiff after the termination of the tenancy, it alone does not amount to waiver under Section 113 of the Transfer of Property Act. One has to see the conduct of the parties to arrive at the conclusion as to whether there is waiver or not. Reliance is also placed on the judgment of by Hon'ble supreme Court reported as "Sarup Singh Gupta v. S. Jagdish Singh” in AIR 2006 SUPREME COURT 1734 wherein the court observed that:

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 on 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