IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No. 2781 of 2006 Date of decision: 14.12.2011 Jagmohan Singh & Anr. ......Appellant. Versus Labh Singh ......Respondent CORAM: HON'BLE MR. JUSTICE JORA SINGH Present: Mr. Kamal Sehgal, Advocate for the appellants. Mr. Chetan Mittal, Sr. Advocate with Mr. Vishal Garg, Advocate for the respondent. Jora Singh, J. Jagmohan Singh son of Bakhtawar Mal son of Tahla Ram filed this Regular Second Appeal to challenge the judgment dated 13.05.2006 passed by learned District Judge, Ropar whereby the appeal against the judgment and decree dated 06.08.2005 passed by Additional Civil Judge (Sr. Divn.), Ropar in Civil Suit No. RT 486/08.08.2001/06.04.2004 filed by Labh Singh son of Sham Singh, respondent/plaintiff was accepted by setting aside the judgment and decree passed by the learned Trial Court. Labh Singh, respondent/plaintiff filed main suit for possession against the appellants on the allegation that he is the owner of the shop in question. Appellants/defendants are in possession as tenant on the monthly tenancy of `3000/- from 1997 and rent was paid at the rate of `3,000/- per month till 01.04.2000, after that no rent RSA No. 2781 of 2006 was paid by the appellants/defendants and now they are in arrears of rent amounting to `45,000/- w.e.f. 01.04.2000 to 30.06.2001. A notice dated 02.07.2001 under Section 106 of Transfer of Property Act was issued to the appellants/defendants and after the termination of tenancy, status of the appellants/defendants is that of trespassers. In pursuance to the notice, appellants/defendants appeared and filed written statement and contested the claim of the respondent/plaintiff inter alia on the ground that the suit is not maintainable; that no legal and valid notice was served upon the appellants/defendants as per law. The respondent/plaintiff is estopped from filing the present suit by his own act and conduct and admissions and the suit is liable to be dismissed because respondent/plaintiff used to receive the rent even after the filing of the suit. Respondent/plaintiff has not come to the Court with clean hands and suit for possession was filed by concealing true facts regarding the rate of rent. From the pleadings of the parties, the following issues were framed: 1. Whether plaintiff is entitled to the possession? OPP 2. Whether plaintiff is entitled to recovery of `45,000/-? OPP 3. Whether suit is not maintainable in the present form? OPD 4. Whether plaintiff is estopped from filing the present suit? OPD 5. Whether defendant is in arrear of rent? OPD. 6. Whether plaintiff has got no cause of action to file the present suit? OPD 7. Relief. 2 RSA No. 2781 of 2006 Issue No.1 was decided against respondent/plaintiff whereas issues No.2 and 5 were decided in favour of the respondent/plaintiff. Issue No. 3, 4 and 6 were decided against the appellants/defendants. Against the judgment and decree dated 06.08.2005, appeal was preferred and the appeal was accepted by the Ist Appellate Court. I have heard learned counsel for the parties and have gone through the record. Learned counsel for the appellants/defendants argued that respondent/plaintiff is the owner of the property in dispute but the appellants/defendants are in possession as tenants from 1997 and paying rent at the rate of `1500 per month. Provisions of Section 106 of the Transfer of Property Act (in short the Act) are not applicable to the facts of the case. Notice under Section 106 of the Act issued to the appellants/defendants on 02.07.2001, copy of which is Ex.P1, is not a notice in the eyes of law. Allegation of the respondent/plaintiff is that the rent is `3000/- per month but evidence on the file shows that rent is `1500/- per month. Respondent/plaintiff admitted that rent at the rate of `1500/- per month was accepted vide money order dated 30.05.2001. Acceptance of rent after the filing of suit for possession, respondent/plaintiff has waived his right to get the possession of the disputed premises and the questions of law arise for adjudication is that: (i) Whether the Court below has misappreciated the evidence? 3 RSA No. 2781 of 2006 (ii) Whether the Court below has misread the evidence lead by the respondents? Learned counsel for the respondent/plaintiff argued that respondent/plaintiff is the owner of the property in dispute and the same is in possession of the appellants/defendants. Appellants/defendants are in possession as tenants w.e.f. 1997 at the rate of `3,000/- per month. Appellants/defendants are in arrears of rent w.e.f 01.04.2000 and if the respondent/plaintiff has accepted the money order dated 30.05.2001 at the rate of `1500/- per month then respondent/plaintiff has not waived his right to get back the possession of the property in dispute as per notice Ex.P1 terminating the tenancy of the appellants/defendants. Rent Restriction Act is not applicable to the facts of the present case. In view of Section 106 of the Act, notice dated 02.07.2001 (Ex.P-1 ) was issued for terminating the tenancy of the appellants/defendants, rent is due w.e.f. 01.04.2000 and if we presume that money order dated 30.05.2001 was accepted then it does not mean that the appellants/defendants are not liable for ejectment of the premises in dispute. In case the respondent/plaintiff has accepted payment as per money order dated 30.05.2001 then notice, copy of which is Ex.P1 was not waived of. Respondent/plaintiff has claimed rent at the rate of `3000/- per month, if Court is of the opinion that the rent is at the rate of `1500/- per month then suit for possession instituted by the respondent/plaintiff is not to be dismissed and the only way to get back possession was after the notice issued under Section 106 of the Act. 4 RSA No. 2781 of 2006 Allegation of the respondent/plaintiff is that he is the owner of the shops in question and the same are in possession of the appellants/defendants as tenants since 1997 and rent at the rate of `3000/- per month is due from 01.04.2000. Allegation of the appellants/defendants is that the rent is `1500/- per month and they are in possession of the shops in question. Rent for the month of April 2001 was paid in the presence of Bal Kishan, rent for the month of May was sent through money order and rent for the months of June, July, August and September, 2001 was paid in the presence of Bal Kishan and Balwant Singh. Admittedly, no rent note was executed amongst the parties and as per appellants/defendants no receipt regarding the payment of rent was issued by the respondent/plaintiff. Due to non-payment of rent, respondent/plaintiff issued notice under Section 106 of the Act, copy of which is Ex.P1. Main grievance of the appellants/defendants is that the rent was paid during the pendency of civil suit, with the receipt of rent does not amount to waiver of notice. Appellants/defendants when appeared in Court and stated that rent for the month of April 2001 was paid in the presence of Bal Kishan, rent for the month of May was sent through money order and rent for the months of June, July, August and September, 2001 was paid in the presence of Bal Kishan and Balwant Singh. No receipt was issued by the respondent/plaintiff regarding the payment of rent. In cross-examination appellant-Jagmohan Singh admitted that no 5 RSA No. 2781 of 2006 rent note was executed and he is not maintaining the account books. Respondent/plaintiff when appeared in Court then stated that rent is `3000/- per month and rent is due w.e.f. 01.04.2000. Suggestion was given to the respondent/plaintiff that `6,000/- was paid in the presence of Balwant Singh and Bal Kishan on 09.09.2001 and up to date rent was received by the appellant/defendants. Bal Kishan and Balwant Singh were not produced in whose presence rent was paid for the months of April, June, July, August and September, 2001. No official of the Postal Department was examined to state that payment sent through money order was collected by the respondent. If we presume that payment through money order was received by the respondent even then payment through money order is for the month of May 2001 whereas rent is due w.e.f 01.04.2000. In the case of Bhaiya Ram Vs. Mahavir Parshad, Vol. LXX 1968, PLR, 1011, the Full Bench of this Hon’ble High Court in para 22 observed as under: - “that principles of Section 106 of the Transfer of Property Act have all along been applied, it is necessary, in the absence of a contract to the contrary, to terminate a monthly tenancy by notice under Section 106 of the Transfer of Property Act before instituting an action under Section 13 of the East Punjab Urban Rent Restriction Act (3 of 1949), inasmuch as the said Punjab Act does not absolve a landlord from the obligation of serving the requisite notice and does not take away from the tenant a perfect defence of his not being liable to ejectment without the service of such a notice. As soon as 6 RSA No. 2781 of 2006 all the relevant judgments of the Supreme Court on the first question had been read out extensively, Mr. Gokal Chand Mittal, the learned counsel for the landlord, lost all his enthusiasm and merely asked us repeatedly to make it clear in our judgment that no notice under Section 106 of the Transfer of Property Act need be served a case where the contractual tenancy has already come to an end either by efflux of time or under any of the other clauses of Section 111 of the Transfer of Property Act. There is indeed no quarrel with that proposition of law. Nothing contained in the Rent Control Act authorises or requires the service of a notice under Section 106 of the Transfer of Property Act, where such a notice would not have been required under the general law applicable to a case independent of the 1949 Punjab Act. At the same time, nothing contained in the Rent Control Act, with which we are concerned, abrogates the necessity of terminating a contractual monthly lease by the notice required under Section 106 of the Transfer of Property Act in a case in which the landlord could not succeed in his claim for eviction of a tenant without serving such a notice under the general law. It was not my intention to say anything beyond this in the judgment of the Division Bench in Sawraj Pal’s case. It is by now well settled that nothing contained in the Transfer of Property Act requires a tenancy to be terminated by a notice if it has already been determined either according to the terms of the particular lease or under the relevant provisions of the Transfer of Property Act. The question of serving a notice under Section 106 of the Transfer of Property Act arises only in these cases:- 7 RSA No. 2781 of 2006 (1) where the provisions or principles of that section are applicable; (2) where the contractual tenancy or the tenancy which is deemed to have come into existence under Section 116 of the Transfer of Property Act is a monthly tenancy; and (3) where such a monthly tenancy is subsisting and has not already come to an end by efflux of time or by forfeiture or by having been determined by an appropriate notice under Section 106 itself. In the case of Shanti Prasad Devi Vs. Shankar Mahto, AIR 2005 Supreme Court, 2905, Hon’ble Supreme Court observed that mere acceptance of rent by lessor on expiry of period of lease would not amount “assent” for continuance of lease. In the case of Post Master General, U.P. Lucknow Vs. District Judge, Mathura, 2005 (2) RCR, 693, it was held that notice under Sections 106, 113 of the Act, thereafter landlord accepting rent for two months does not amount to waiver of notice particularly when landlord filed suit for eviction of tenant. In the cases of Satyanarayan, Spun Pipe Company Vs. N. Padmavathi, 2003 (2) RCR, 157 and Bimla Devi @ Vimla Vs. Vishan Dass (P&H), 1993 (2) 75, Court also observed that mere acceptance of rent does not amount waiver of notice. In the case Bimla Devi @ Vimla Vs. Vishan Dass (P&H), 1993 (2) 75, Court observed that landlord serving notice and terminating the tenancy, landlord receiving rent regularly from tenant thereafter for use and occupation. Receipt of rent does not amount to waiver of notice. In the present case, there is no proof regarding the receipt of rent but if the rent for the month of April 2001 was paid 8 RSA No. 2781 of 2006 in the presence of Bal Kishan, rent for the month of May was sent through money order and rent for the months of June, July, August and September, 2001 was paid in the presence of Bal Kishan and Balwant Singh and during the pendency of civil suit rent was received under protest from 01.10.2002 to 30.04.2003 and 01.05.2003 to 29.02.2004 and 01.01.2004 to 30.04.2005. Even then as discussed earlier rent was due w.e.f. 01.04.2000 and after that notice, copy of which is Ex.P1, was issued, postal receipts i.e. Ex.P2 and Ex.P3 are on the file. Allegation of the appellants is that no legal and valid notice was ever served upon them as per law. Respondent claimed rent at the rate of `3000/- per month but the Court, as per evidence on the file observed that the rent is `1500/- per month, if rent is `1500/- per month then respondent can not be non-suited simply on the allegation that statement of the respondent qua rate of rent is not correct one. Appellants/defendants are in possession of the shops in question and rent was due w.e.f. 01.04.2000, after that notice copy of which is Ex.P1 was issued to terminate the tenancy. After the institution of civil suit, respondent received rent under protest but mere acceptance of rent during the pendency of civil suit does not amount to waiver of notice. Section 106 of the Act is not applicable to the State of Punjab but the general principles of Transfer of Property Act are applicable for the purpose of termination of the tenancy. Registered notice copy of which is Ex.P1 was sent for terminating the tenancy of the appellants/defendants. For the reasons recorded above, I am of the view that evidence was not misread. Mere acceptance of rent after the 9 RSA No. 2781 of 2006 institution of suit or during pendency of suit does not amount to waiver. RSA fails and is dismissed. December 14,2011 (JORA SINGH) Sham JUDGE 10