Supreme Court Dismisses Landlord’s Appeal in Eviction Suit; Second Notice Waived First Notice Under Section 113 Transfer of Property Act. Landlord’s Subsequent Notice Treating Tenancy as Subsisting and Claiming Rent After Expiry of First Notice Constituted Waiver, Precluding Eviction Solely on Grounds in First Notice.

Case Note & Summary

In this civil appeal by special leave, the Supreme Court examined whether a landlord’s first notice terminating tenancy for default in rent was waived by his subsequent conduct, specifically the issuance of a second notice on a different ground while treating the tenancy as continuing. The dispute arose from a shed let out by the appellant-landlord to the respondent-tenant on a monthly tenancy. The landlord sent a notice dated 13-06-1956 under Section 12 of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947, demanding arrears from 01-07-1953 and terminating the tenancy on the ground of habitual default and alleged illegal use of a passage. The tenant did not vacate, and the arrears were paid after the one-month period mentioned in the notice. Subsequently, the landlord sent a second notice dated 18-10-1957, calling upon the tenant to deliver vacant possession on the ground that the premises were required for personal use and occupation. This notice described the tenant as a monthly tenant, thereby indicating that the tenancy was still subsisting. The tenant then tendered further arrears by cheque, which the landlord rejected. The landlord filed a suit for eviction on 31-03-1958, claiming recovery of rent from April 1955 to November 1957 and compensation thereafter, along with other charges. The plaint was amended in July 1960 to bring on record the first notice. The trial court dismissed the eviction suit, holding that the landlord had waived the ground of default by serving the second notice and by his acts and conduct. The appellate court reversed on the ground that the demand in the first notice was excessive and thus the notice was invalid, while affirming that there was no waiver. The High Court dismissed the landlord’s petition under Article 227 of the Constitution in limine. Before the Supreme Court, the landlord contended that the appellate court’s view on excessive demand was erroneous, relying on Raghunath Ravji Dandekar v. Anant Narayan Apte, which held that a notice is not invalid merely because a larger amount is demanded by mistake. He argued that the first notice was the valid notice and, since the tenant failed to pay within the stipulated period, the court was bound to pass a decree under Section 12(3)(a) of the Bombay Rent Act. The tenant maintained that the first notice had been waived. The Court, after examining the facts, found it clear that the landlord had treated the tenancy as subsisting in the second notice by describing the tenant as a monthly tenant and in the plaint by claiming rent up to November 1957. The Court discussed Section 113 of the Transfer of Property Act, which provides that a notice under Section 111(h) is waived by any act of the person giving it showing an intention to treat the lease as subsisting, with the consent of the person to whom it is given. Rejecting the landlord’s reliance on the English decision in Lowenthal v. Vanhoute, which required a new tenancy for revival, the Court held that Section 113 does not require a new tenancy; the only requirement is an act showing an intention to treat the lease as subsisting with consent. The serving of the second notice, its contents, and the claim in the plaint demonstrated such intention, and the tenant’s payment of rent and his treating the tenancy as subsisting established consent. Consequently, the first notice stood waived. The landlord could not be permitted to base his eviction solely on the first notice while disclaiming reliance on the second. The appeal was therefore dismissed, affirming the concurrent findings that the suit could not proceed on the first notice. The landlord’s contention regarding the validity of the first notice due to excessive demand was not necessary to decide.

Headnote

Issue of Consideration

Final Decision

Appeal dismissed. First notice stood waived under Section 113 Transfer of Property Act by landlord's act of sending second notice and treating tenancy as subsisting, with tenant's consent. Landlord could not base suit solely on first notice.

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