Acceptance of rent after a quit notice does not imply waiver of the notice unless supported by other evidence of intent.

J U D G M E N T

This appeal filed under Order XLII Rule 1 read with Section

100 of the Code of Civil Procedure, is at the instance of the sole defendant in O.S.No.372/2015 on the files of the Munsiff Court, Manjeri. The defendant assails the decree and judgment in the above suit dated 24.10.2017, confirmed by the Sub Court, Manjeri in A.S.No.10/2018 as per the decree and judgment dated

15.03.2019. The sole respondent is the plaintiff.

2. I shall refer the parties in this appeal with reference to their status before the trial court, as `plaintiff’ and `defendant’

hereafter for easy reference.

3. Heard the learned counsel on both sides.

4. Perused the verdicts under challenge and the copies of documents placed by the learned counsel on both sides, form part of the trial court records.

5. The plaintiff, being the landlord of the plaint schedule building which was given on rent in favour of the defendant, filed the suit and sought for eviction of the defendant from the plaint schedule building after terminating the tenancy by issuing notice on 29.06.2015.

6. The defendant filed written statement and admitted the tenancy arrangement between the plaintiff and the defendant. The defendant raised contentions which would be available to a tenant under the Building (Lease and Rent Control) Act, 1965 though such contentions could not be raised in a suit for eviction.

7. The trial court raised necessary issues and recorded evidence. PW1 was examined and Exts.A1 to A2 were marked on the side of the plaintiff. DW1 was examined and Exts.B1 to B5 were marked on the side of the defendant.

8. Thereafter, the trial court decreed the Suit directing the defendant to surrender vacant possession of the plaint schedule building and also granted Rs.3,000/- per month as occupation charges till the date of surrender. On appeal, as per judgment in A.S.No.10/2018 dated 15.03.2019, the learned Sub Judge concurred with the finding of the trial court and dismissed the Suit.

9. At the time of admission, my learned predecessor admitted this appeal raising the following substantial question of law:

(1) Does receipt of rent by the landlord after receipt of quit notice by the tenant amount to waiver of the quit notice?

10. While addressing the substantial question of law, the learned counsel for the defendant submitted that during cross examination, PW1 stated that the defendant has been continuing in occupation as a tenant and, therefore, Section 113 of the Transfer of Property Act (`T.P Act' for short hereinafter) would apply to the facts of this case. It is submitted further that the landlord, who received rent after receipt of quit notice, waived the quit notice earlier issued and therefore fresh quit notice is necessary to succeed the Suit.

11. Whereas it is submitted by the learned counsel for the plaintiff' that PW1 never intended that quit notice issued in this case was waived and what is intended by PW1 was till the tenant is in possession of the tenanted building.

12. In this matter, Ext.A1 is the copy of lawyer notice dated

29.06.2015 and Ext.A2 is the reply notice dated 08.07.2015. As per Ext.A1, the tenancy was terminated. Exts.B1 to B3 are the copies of rent agreements dated 01.07.2007, 08.10.2011 and 11.11.2013. In fact, the rental arrangement in between the plaintiff' and the defendant is not disputed at all. Issuance of Ext.A1 quit notice was not disputed and reply notice also was given by the tenant. Now the question is how far Section 113 of T.P Ac would apply to the facts of this case. deals with waiver of notice to quit. It has been provided that a notice given under Section 111, clause (h), is waived, with the express or implied consent of the person to whom it is given, by any act on the part of the person giving it showing an intention to treat the lease as subsisting. Going by the plain reading of , an express or implied consent of the person on behalf of the quit notice was issued, showing an intention to treat the lease as subsisting, would waive th