Case: Ranjit Chandra Chowdhury Vs. Mohitosh Mukherjee

2. The suit was dismissed by the Munsif, 1st Court, Alipur, but on appeal the judgment was reversed by the Subordinate Judge, 8th Court, Alipur whose decree was confirmed on appeal by the learned single Judge in the High Court at Calcutta. This appeal is against the judgment dated August 14, 1965 of the Calcutta High Court.3. The premises were rented out to the original tenant as far back as May 1944 on monthly rent of Rs. 130. The tenancy was from month to month. According to the landlord the rent of the premises had to be paid on or before the 7th day of each calendar month. According to the tenant the rent was to be paid as and when the sarkars came to collect it on behalf of the landlord who employed such agents as he had many other houses rented out to other tenants. The High Court and the appellate Court below have accepted the case of the landlord and that is a finding with which we must start. The monthy rent for eight months between September 1954 to April 1955 was admittedly collected and paid beyond the period limited by the agreement. On August 11, 1955 a notice determining the tenancy was served on the original tenant and he was asked to quit on the expiry of the month of August, 1955 on pain of being held liable in damages at Rs. 5 per day for wrongful occupation from the 1st September, 1955. On October 2, 1955, the original landlord accepted rent upto September, 1955 and thus waived the notice which was given. It appears also that the landlord accepted rent from November 1, 1955 to February 1, 1956 and granted reciepts for the rent. On February 9, 1956 a second notice determining the tenancy was served calling upon the original tenant to deliver possession of the premises on the expiry of February, 1956. The notice this time also added a condition that in case the original tenant overstayed in the premises beyond February, he would be liable to damages. The present suit was filed on March 1, 1956 with the result already stated.4. In the written statement filed by the original tenant it was stated that the original landlord had waived the right of forfeiture for default upto August, 1955 when he accepted rent for September,1955 and acquiesced in the continuance of the tenancy by receiving rent upto January, 1956. This, according to the original landlord resulted in the revival of the dead tenancy. The High Court has held that the old tenancy continued between the parties with all its advantages and weaknesses and that the original landlord was, therefore, able to take advantage of the old defaults and base the notice onthe tenant and the landlord died after the institution of the suit and are represented by their legal representatives. The suit was for ejectment of the tenant for default in payment of rent as agreed to between the parties.

Court's reasoning:
Under Section l13 of the Transfer of Property Act a notice is waived, by an act on the part of the person giving it showing an intention to treat the lease as subsisting, provided there is the express or implied consent of the person to whom it is given. Here the difficulty is sloved by the attitude the tenant took in this case. His case was that the old tenancy revived and continued. According to him the landlord acquiesced in having the old tenancy continued. If we go by the tenants own case it is obvious that the old tenancy with the default continued and the landlord was thus able to use the provisions of Section 12 (1) (i) against the tenant as also the proviso to sub-section (3) of Section 14 of the repealed Act. There were two consecutive defaults and in the period of 18 months there were more than three defaults. The benefit of Section 14 sub-section (1) of the repealed Act is not available to the tenant because of the operation of the proviso to sub-section (3).Further Section 24 of the new Act can hardly assist the tenant. That section is not retrospective and will operate from the date on which it came intosection puts an embargo on any claim based on default in payment of rent when the landlord accepts rent after default and therefore it affects the substantive right of the landlords. According to the accepted canons of interpretation of statutes, a substantive right cannot be taken away retrospectively unless the law expressly so states or there is a clear intendment. There are no express words in the statute making S. 24 retrospective and we fail to see any intendment in it to apply to cases pending on March 31, 1956 when the new Act came into force, and this suit was then pending. If it had been merely a matter of procedure or creating a rule of decision we might have held that the provisions applied to the suit, but that is not the case here.As we said the section creates a change in the substantive rights and therefore must be held to be prospective in operation and not retrospective unless we can gather retrospectivity from the language of the statute or by clear implication in it.9. There is no question in this case that the tenant was in default according to Section 12 (1) (i) because he had been paying rents beyond the period limited by the agreement or by the section . These defaults were also more than three and therefore the proviso to Section 14 (3) deprived the tenant of the benefit of Section 14 (1). On the whole, therefore, the decision of the High Court was correct and we see no reason to differ from it.