A landlord's acceptance of rent for an extended period after becoming aware of a tenant's breach of a lease covenant may constitute acquiescence and waiver of the right to seek eviction on that ground.

J.V.Gupta, J.

1. This is a tenants petition against whom eviction order has been passed by both the authorities below. The landlord, Ved Parkash, sought the ejectment of his tenant from the shop in dispute bearing No. 6313, Ward No. 3, situate in Jain Bazar, Ambala City, inter alia on the ground that the tenant had made structural alternations in the shop in dispute by removing the wall adjacent to shop No. 6312, and thereby the tenant distenant had committed an act by which he has impaired the value and utility of the shop in dispute. In the written statement, it was pleaded that Darshan Lal was a tenant of shop No. 6313 and was also the tenant of the adjoining shop NO. 6312, owned by Amrit Lal, who was the brother of the landlord Ved Prakash. However, it was denied that the wall was removed by him, as alleged.

2. It is the common case of the parties that shop No. 6313 belonging to Darshan Lal was already in occupation with the tenant, Ved Parkash, since 1947, whereas this adjacent shop No. 6312 belonging to Amrit Lal, brother of the landlord, was taken on rent vide rent note, dated 26th September, 1960, Exhibit A.1 on a monthly rent of Rs. 22/-. According to the landlord, the intervening wall between the two shops was removed by the tenant, whereas according to the tenant, the said wall was removed by the landlord while renting out the premises in the year 1960. The present ejectment application was filed on 6th July, 1976, that is, after 16 years from the alleged removal of the wall. The learned Rent Controller found that the landlord had been able to prove the removal of the intervening wall by the tenant after his taking the shop. Consequently, eviction order was passed. In appeal, the learned Appellate Authority affirmed the said finding of the Learned Rent Controller and observed as under

"The circumstances on the record lead to an inevitable conclusion that the wall was removed by the tenant after he has taken the shop in dispute on rent. The mere delay in seeking remedy cannot be viewed against the case of the landlord when there is no legal bar for the same, nor the tenant has raised any plea of acquiescence in his written statement."

Consequently, the eviction order was maintained. Dissatisfied with the same, the tenant has filed this petition in this Court.

3 The learned counsel for the petitioner contended that there is no finding that how the said removal of the wall has impaired the value and the utility of the demised building, and in the absence of any such plea and the finding, no eviction order could be passed on that ground. It was further contended that in any case, it is a clear case of acquiescence because the ejectment application was filed after about 16 years from the alleged removal of the intervening wall between the two shops. In support of this contention, he referred Shrimati Narinder Kaur & others v. Arjan Dass, 1981 RCR 194; Messrs New Garage Limited v. Sardar Khushwant Singh and another, 1951 P.L.R. 136 (D.B.);De. Gopal Das Verma v. Dr. S.K. Bhardwaj and others, 1957 P.L.R. 355; Mukesh Chand and others v. Jamboo Pershad and another, 1963 P.L.R. 285;(D.B.);Shri Partap Chand v. The Automobile Association of Upper India, 1963 P.L.R. 262, which judgment was later on approved by the Supreme Court as well and reported in AIR 1964 Supreme Court 1305. On the other hand, the learned counsel for the landlord submitted that the very fact that the wall was removed by the tenant was itself sufficient to show that it has materially impaired the value and the utility of the demised premises. As regards the other contention, it was submitted that no such plea of acquiescence was taken by the tenant and in any case, there is no bar to seek ejectment of the tenant on the grounds available under the statute even after a lapse of time, if any. According to the learned counsel, the question of acquiescence as such did not arise. In support of his first contention, reference was made to Harbans Sharma v. Sm