Mere acceptance of rent by the lessor after notice to quit would not amount to waiver of right of eviction. The acceptance of rent must be accompanied by animus to treat the person making the payment as a tenant.

JUDGMENT

(Prayer: Second Appeal filed under Section 100 of the Civil Procedure Code, praying to set aside the judgment and decree in A.S.No.303 of 2015, dated 23.03.2017 passed by the learned II Additional City Civil Judge, Chennai, confirming the judgment and decree in O.S.No.4568 of 2011 dated 08.01.2013 passed by learned XVI Assistant City Civil Judge, Chennai and allow this second appeal.)

1. The unsuccessful plaintiff in the suit is the appellant. The plaintiff temple filed a suit seeking recovery of vacant possession and also recovery of damages for wrongful use and occupation. The said suit was dismissed by the trial Court, which was confirmed by the first appellate court. Aggrieved by the concurrent findings, the plaintiff has come by way of this second appeal.

2. According to the appellant/plaintiff, the respondent/defendant is a tenant under the plaintiff temple in respect of non residential building for monthly rent of Rs.1,500/-. Later on from 01.11.2001 onwards, the rent was enhanced to Rs.2,844/- per month. The respondent failed to pay rent properly and he was in arrears, hence, the appellant issued a notice dated 07.03.2011 terminating the tenancy with the last day of the month and sought for delivery of possession. Since the respondent's occupation of the building was wrongful after termination of tenancy, the appellant claimed Rs.3,000/- per month for damages and occupation. On these pleadings, the appellant sought for recovery of possession and recovery of damages.

3. The respondent/defendant filed a written statement stating that as per the demand made by the appellant, he had been paying the rent regularly without any protest. He claimed that he paid entire rent on the date of filing of the written statement. It was further averred by the respondent that the area let out to the respondent was only 124 sq.ft, however, the appellant calculated the rent, as if 158 sq.ft was let out to the respondent. The respondent further claimed that he had been paying rent regularly to the appellant and therefore, he was not liable to be evicted.

4. Before the trial Court, one witness was examined as PW.1 and four documents were marked as Exs.A1 to A4. On behalf of the respondent, the respondent examined himself as DW.1 and six documents were marked as Exs.B1 to B6.

5. The trial Court on appreciation of oral and documentary evidence available on record, came to the conclusion that subsequent to issue of notice to quit, the appellant received the rent from the respondent and the same would amount to waiver of notice to quit and consequently it was not entitled to maintain a suit for recovery of possession. Aggrieved by the same, the appellant preferred an appeal in A.S.No.303 of 2015 on the file of the II Additional City Civil Court, Chennai. The First Appellate Court also affirmed the findings of the trial Court and dismissed the appeal. Aggrieved by the concurrent findings, the appellant is before this Court.

6. At the time of admission, this Court formulated the following substantial question of law by order dated 21.11.2023:

“Is the conclusion of Courts below right in holding that the plaintiff waived their right of claiming vacant possession in view of payment made towards damage for wrongful use and occupation subsequent to Ex.A2 termination notice?.”

7. The learned counsel appearing for the appellant submitted that after notice to quit was issued by the appellant, the respondent came forward to pay the arrears of rent and also rent for the subsequent period. The same was received by the appellant temple without prejudice to its right in the suit and it was accepted towards damages, for wrongful use and occupation of the property. Therefore, the learned counsel submitted that the conclusion reached by the Courts below, as if, the appellant waived its right of eviction is untenable and the same is liable to be set aside. In this connection, the learned counsel relied on the judgment of the Apex Court in Sri K.M.Man