# Pawan Kumar & Anr. (Defendants) v. Smt. Sita Devi (Plaintiff)

- **Citation:** (2019) 2 ILRA 1211
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2019-03-25
- **Bench:** Surya Prakash Kesarwani
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/pawan-kumar-anr-defendants-v-smt-sita-devi-plaintiff-44577
- **Pages:** 14

## Headnote

A. Transfer of Property Act, 1882Sections 106 & 113-Notice u/s. 106 issued
determining the tenancy (month to month)- on
expiry
of
the
period
of
notice
dated
09.09.2013 the relationship of landlady and
tenant came to an end-the landlady has
1212 INDIAN LAW REPORTS ALLAHABAD SERIES
acquired right to obtain possession of the
disputed shop by evicting the tenant.

B. Waiver u/s. 113-essentials being-Intention
of landlord- to treat the lease as subsisting
and knowledge of his conduct amounts to
waiver-it cannot be said that mere acceptance
of rent amounts to waiver of notice unless
proved otherwise-landlady instituted and is
contesting SCC Suit. Thus, no element of
waiver of notice can be inferred.

Writ Petition dismissed. (E-8)

List of Cases Cited: -

## Text

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2 All. Pawan Kumar & Anr. Vs Smt. Sita Devi
1211
Bahujan Samaj Party and the petitioners
were supporting the political party other
than the ruling party. The District
Magistrate though in his counter-affidavit
has stated that the sub-Inspector has not
lodged the FIR under political pressure
but the fact that the brother of the
petitioner was MLA and that they were
supporting the other party has not been
denied.

34. When we take a conspectus of
the facts and circumstances of the case,
we are of the view that except for the
criminal history of Aas Mohd., the brother
of the petitioner (Aashif) and uncle of the
petitioner (Adil), there is no material,
cogent enough, to enable a logical
inference, on the basis of a solitary
incident, that on being released on bail,
the petitioners would indulge in activity
prejudicial to the maintenance of the
public order or supplies and services
essential to the community. The incident
dated 25.03.2019 is not reflective of
organized
criminal
activity
and,
admittedly, was not an incident where any
person died or got seriously injured. Thus,
in our view, the incident was not such
from which any inference could be drawn
about the propensity of the petitioners to
repeat, or indulge in, such activities. For
the reasons stated above as also keeping
in mind that no co-accused similarly
situated have been preventively detained,
we are of the considered view that the
order of detention has been passed by
being
influenced
with
the
criminal
antecedents of petitioners' relative, which,
in our view was extraneous and not a
relevant consideration, particularly, in
absence of further details as to how the
petitioners were linked with him in his
criminal activity. We are therefore of the
considered view that on the basis of the
solitary incident dated 25.3.2019 the
detention order against the petitioners is
not sustainable and as such the impugned
detention orders are liable to be quashed.

35. Consequently, both the habeas
corpus
petitions
are
allowed.
The
detention orders dated 16th April, 2019,
passed
by
the
District
Magistrate,
Ghaziabad in respect of Aashif (petitioner
in Habeas Corpus Petition No. 562 of
2019) and Adil (petitioner in Habeas
Corpus Petition No. 564 of 2019) are
hereby quashed. Both the petitioners shall
be set at liberty forthwith unless wanted
in any other case. There is no order as to
costs.
----------

(2019)10ILR A 1211

ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 26.09.2019
BEFORE

THE HON'BLE SURYA PRAKASH
KESARWANI, J.

Matter Under Art. 227 No. 6482 of 2019 (Civil)

Pawan Kumar & Anr.
 ...Petitioners (Defendants)
Versus
Smt. Sita Devi ...Respondent (Plaintiff)

Counsel for the Petitioners:
Sri Manu Khare

Counsel for the Respondent:
Sri Chetan Prakash

A. Transfer of Property Act, 1882Sections 106 & 113-Notice u/s. 106 issued
determining the tenancy (month to month)- on
expiry
of
the
period
of
notice
dated
09.09.2013 the relationship of landlady and
tenant came to an end-the landlady has
1212 INDIAN LAW REPORTS ALLAHABAD SERIES
acquired right to obtain possession of the
disputed shop by evicting the tenant.

B. Waiver u/s. 113-essentials being-Intention
of landlord- to treat the lease as subsisting
and knowledge of his conduct amounts to
waiver-it cannot be said that mere acceptance
of rent amounts to waiver of notice unless
proved otherwise-landlady instituted and is
contesting SCC Suit. Thus, no element of
waiver of notice can be inferred.

Writ Petition dismissed. (E-8)

List of Cases Cited: -

1. Janki Vashdeo Bhojwani & Anr. vs. Indusind
Bank Ltd. & Ors 2005 2 SCC 217

2. Union of India and another v. Sudarshan Lal
Talwar, AIR 2002 (Allahabad) 212

3. Man Kaur (dead) by Lrs. Vs. Hartar Singh
Sangha (2010)10 SCC 512

4. Sarup Singh Gupta Vs. S. Jagdish Singh and
others (2006) 4 SCC 205

5. Ganga Dutt Murarka Vs. Kartik Chandra Das
& others, AIR 1961 SC 1067

6. Anis Ahmad Vs. Special Judge/Additional
District Judge, Saharanpur 1997(2) ARC

7. Jeevan Dass vs. L.I.C. (1994) Suppl. 3 SCC 694 32

8. Sri Ram Urban Infrastructure Ltd. vs. High
Court of Bombay, (2015) 5 SCC 539

9. Vasantkumar Radhakisan Vora vs. Board of
Trustees of the Port of Bombay, (1991) 1 SCC 761

10. Tata Steel Limited vs. State of Jharkhand,
(2015) 15 SCC 55

11. V. Dhanapal Chettiar v. Yesodai Arnrnal,
(1979) 4 SCC 214

12. Majati Subbarao vs P.K.K. Krishna Rao,
(1989) 4 SCC 732

13. Mangilal vs. Suganchand Rathi, AIR 1965
SC 101
(Delivered by Hon'ble Surya Prakash
Kesarwani, J.)

"Waiver of notice to quit u/s 113,
determination of tenancy U/S106 and
deposition by power of attorney holder
on behalf of landlord are the main
questions involved in this petition."

1. Heard Shri Manu Khare, learned
counsel
for
the
defendantstenants/petitioners and Shri Chetan Prakash,
learned counsel for the plaintiff-respondent.

Facts

2. A shop in house No. D-58/12A82, Gandhi Nagar, Sigra, Varanasi, was
let out by its owner and landlady Smt.
Sita
Devi
Agarwal
(the
plaintiffrespondent)
to
the
defendantstenants/petitioners no. 1 & 2 under a rent
agreement
dated
06.01.2009
at
the
monthly rent of Rs. 2,005/-. The tenancy
commenced from 01.01.2009. Thereafter
mutually the rent was enhanced with
effect from 11.02.2011, from Rs. 2,005/-
to Rs. 3,000/- per month. On 09.09.2013,
the plaintiff-landlady/respondent issued a
notice under Section 106 of the Transfer
of
Property
Act,
1882
(hereinafter
referred to as "the Act 1882") to the
defendants-tenants/petitioners
determining the tenancy. Since the notice
was not complied with by the defendantstenants/petitioners, therefore, the plaintifflandlady filed SCC Suit No. 49 of 2014
(Smt. Sita Devi Agarawal v. Pawan
Kumar & Ors.) which was decreed by
judgment and decree dated 24.08.2017
passed by the Judge Small Cause Court,
Varanasi. Aggrieved with this judgment
the defendants-tenants/petitioners filed
S.C.C. Revision No. 15 of 2017 (Pawan
Kumar and Anr. v. Sita Devi), which was
2 All. Pawan Kumar & Anr. Vs Smt. Sita Devi
1213
dismissed by the Additional District
Judge/ FTC-1, Varanasi by judgment
dated 15.07.2019. Aggrieved with these
two judgments, the defendants-tenants/
petitioners have filed the present petition
under Article 227 of the Constitution of
India.

Submissions

3. Learned counsel for the
defendants-tenants/
petitioners,
submits as under:-

i. The plaintiff-landlady has not
appeared in the witness box rather her son
and power of attorney holder Anoop
Kumar Agarwal appeared and gave
evidence, which is impermissible in view
of the law laid down by Hon'ble Supreme
Court in Janki Vashdeo Bhojwani &
Anr. vs. Indusind Bank Ltd. & Ors
2005 2 SCC 217, (para 13). The
judgment of learned Single Judge in
Union
of
India
and
another
v.
Sudarshan Lal Talwar, AIR 2002
(Allahabad) 212 relied by the plaintiffrespondent, has no application in view of
the judgment of Hon'ble Supreme Court.

ii. A power of attorney was
executed by the landlady Sita Devi Agarwal
in favour of her son Anoop Kumar Agarwal
on 17.07.2014 and thereafter, suit was
instituted on 05.08.2014. Therefore, if the
son of the plaintiff was well acquainted with
all the facts of the case and competent to
depose on behalf of the plaintiff-landlady,
there was no need to execute the power of
attorney. In fact, the son of the plaintifflandlady was not aware of the facts of the
case and therefore, he was not competent to
depose on behalf of the plaintiff-landlady.

iii. In view of Section 111(h)
readwith Section 113 of the Transfer of
Property Act, 1882, the institution of a
suit after one year of the notice would
amount to waiver of the notice. The notice
given by the plaintiff-landlady under
Section 106 of the Act, 1882 was no
notice in the eyes of law.

iv. The aforesaid notice was
issued by the plaintiff-landlady for setting
up the business for her son in the disputed
shop who wanted to take franchise of
Raymond.

v. Subsequently the plaintifflandlady stated that she could not get
franchiese of Raymond because the place
was not available whereas in his cross
examination son of the plaintiff-landlady
has admitted that the shop was not
suitable for franchiese of Raymonds.
Thus, the need set up by the plaintifflandlady was not bonafide.

vi.
The
defendantstenants/petitioners have not violated any
of the conditions of the rent agreement
dated 06.01.2009. Therefore, the court
below could not have granted a decree of
eviction.

vii. Notice was issued by the
plaintiff-landlady on 11.09.2013 under
Section 106 of the Act, 1882 while the
suit was instituted on 05.08.2014 and,
therefore, the notice stood waived.

4. In support of his submissions Sri
Khare, has relied upon the judgment of
Hon'ble Supreme Court in Man Kaur
(dead) by Lrs. Vs. Hartar Singh Sangha
(2010)10 SCC 512 (para 18) and Sarup
Singh Gupta Vs. S. Jagdish Singh and
others (2006) 4 SCC 205 (para 6).

5. Learned counsel for the
plaintiff-landlady/respondent
submits
as under:-

(i) The plaintiff has neither
waived notice nor there is any material to
1214 INDIAN LAW REPORTS ALLAHABAD SERIES
indicate that there was any intention of
the plaintiff to waive the notice. On the
contrary after giving notice, the plaintifflandlady instituted the suit on 05.08.2014.
Thus, the submissions of learned counsel
for the petitioner that the notice stood
waived
is
wholly
incorrect
and
misconceived

(ii) Anoop Kumar Agarwal is
the only son of the plaintiff-landlady to
whom she has given power of attorney.
He gave evidence as P.W. 1 in his
personal capacity. That apart he was well
aware of all the facts of the case and,
therefore, was competent to depose.
Submission of learned counsel for the
petitioner are wholly incorrect. Both the
courts below have also found that the
evidence given by plaintiff's son was in
his personal capacity.

(iii) After giving notice to the
tenant the tenancy stood determined.
Therefore, the defendant-tenant/petitioner
was bound to vacate the disputed shop.
That apart the bonafide need of the
disputed shop was fully established by the
plaintiff-landlady/respondent.

6. In support of his submissions,
learned counsel for the plaintiff-landlady/
respondent has relied upon a judgment of
this court in Union of India Vs.
Sudarshal Lal Talwar, 2002 AIR (All)
212.

Discussion & Findings

7. I have carefully considered the
submissions of learned counsels for the
parties.

Waiver of Notice

8. The submission of learned
counsel
for
the
defendanttenant/petitioner
that
the
plaintifflandlady
has
waived
notice
dated
11.09.2013 by filing the suit after about
11 months on 05.08.2014 is wholly
misconceived. Section 106 of the Act
1882 provides for termination of tenancy
by notice. It does not provide that the
notice of the landlord terminating the
tenancy shall stand waived if suit is not
filed within a particular period. Likewise
Section 111(h) of the Act 1882 also does
not provide for any limitation for filing a
suit after giving notice to quit. On the
contrary
it
provides
that
lease
of
immovable
property
shall
stand
determined on expiration of a notice to
determine the lease or to quit, or of
intention to quit, the property leased, duly
given by one party to the other. Section
113 of the Act 1882 provides that 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.

9. Section 113 of the Act 1882
contains two conditions to waiver, namely
:-

(i) Express or implied consent
of the person to whom it is given, by any
act on the part of the person giving it

(ii) which shows an intention to
treat the lease as subsisting.

10. The principles of waiver are
well settled. A waiver is an intentional
relinquishment of a known right. There
can be no waiver unless the person
against whom the waiver is claimed had
full knowledge of his rights and of facts
enabling him to take effectual action for
the enforcement of such rights. Intention
2 All. Pawan Kumar & Anr. Vs Smt. Sita Devi
1215
of the landlord to treat the lease as
subsisting and his knowledge of the fact
that his conduct amounts to waiver, are
the basic essentials of waiver contained
in Section 113 of the Act 1882.

11. Facts of the present case leaves no
manner
of
doubt
that
the
plaintifflandlady/respondent has never waived notice
under Section 113 of the Act 1882. On the
contrary, after determining the tenancy by
notice dated 11.9.2013, she instituted SCC
Suit No.49 of 2014 (Sita Devi Vs. Pawan
Kumar and others) on 5.8.2014. She has
been contesting the suit. Thus, no element
of waiver of notice can be inferred on the
facts of the present case. In the present case
even rent was not accepted by her after
determining the tenancy. Hon'ble Supreme
Court in Ganga Dutt Murarka Vs. Kartik
Chandra Das & others, AIR 1961 SC
1067 and this court in Anis Ahmad Vs.
Special Judge/Additional District Judge,
Saharanpur 1997(2) ARC 32 have held
that mere acceptance of arrears of rent
after expiry of notice or acceptance of rent
for the period subsequent to the date of
termination of tenancy by the landlord,
does not amount to waiver of notice
determining the tenancy under Section
106. Similar view has also been taken by this
Court in Union of India and another Vs.
Sudarshan Lal Talwar (supra).

12. The provisions of Section 113 of
the Act has again been interpreted by
Hon'ble Supreme Court in Sarup Singh
Gupta's case (supra) which also does not
support the case of the petitioner.
Paragraph 6 and 8 of the said judgment is
reproduced below:-

"6. The Learned Senior Counsel
also relied upon a decision of a learned
Single Judge of the Calcutta High Court in
Manicklal Dey Chaudhuri v. Kadambini
Dassi AIR 1926 Cal 763 wherein it was held
that where rent is accepted after the notice to
quit, whether before or after the suit has been
filed, the landlord thereby shows an intention
to treat the lease as subsisting and, therefore,
where rent deposited with the Rent Controller
under the Calcutta Rent Act is withdrawn
even after the ejectment suit is filed, the notice
to quit is waived. In our view, the principle
laid down in the aforesaid judgment of the
High Court is too widely stated, and cannot be
said to be an accurate statement of law. A
mere perusal of section 113 leaves no room
for doubt that in a given case, a notice given
under section 111, clause (h), may be treated
as having been waived, but the necessary
condition is that there must be some act on the
part of the person giving the notice evincing
an intention to treat the lease as subsisting. Of
course, the express or implied consent of the
person to whom such notice is given must
also be established. The question as to
whether the person giving the notice has by
his act shown an intention to treat the lease as
subsisting is essentially a question of fact. In
reaching a conclusion on this aspect of the
matter, the Court must consider all relevant
facts and circumstances, and the mere fact
that rent has been tendered and accepted,
cannot be determinative.

8. In the instant case, as we have
noticed earlier, two notices to quit were
given on 10-2-1979 and 17-3-1979. The
suit was filed on 2-6-1979. The tenant
offered and the landlord accepted the rent
for the months of April, May and
thereafter. The question is whether this by
itself constitutes an act on the part of the
landlord showing an intention to treat the
lease as subsisting. In our view, mere
acceptance of rent did not by itself
constitute an act of the nature envisaged
by section 113, Transfer of Property Act
showing an intention to treat the lease as
1216 INDIAN LAW REPORTS ALLAHABAD SERIES
subsisting. The fact remains that even
after accepting the rent tendered, the
landlord did file a suit for eviction, and
even while prosecuting the suit accepted
the rent which was being paid to him by
the tenant. It cannot, therefore, be said
that by accepting rent, he intended to
waive the notice to quit and to treat the
lease as subsisting. We cannot ignore the
fact that in any event, even if rent was neither
tendered nor accepted, the landlord in the
event of success would be entitled to the
payment of the arrears of rent. To avoid any
controversy, in the event of termination of
lease the practice followed by the courts is to
permit the landlord to receive each month by
way of compensation for the use and
occupation of the premises, an amount equal
to the monthly rent payable by the tenant. It
cannot, therefore, be said that mere
acceptance of rent amounts to waiver of
notice to quit unless there be any other
evidence to prove or establish that the
landlord so intended. In the instant case, we
find no other fact or circumstance to support
the plea of waiver. On the contrary the filing
of and prosecution of the eviction proceeding
by the landlord suggests otherwise."

13. In view of the discussion, I do
not find any force in the submission of
learned
counsel
for
the
defendanttenant/petitioner that the notice dated
11.9.2013 stood waived

Determination
of
Tenancy
by
notice U/S 106 of the Act, 1882 and
Bonafide need

14. Section 106 of the Act 1882,
provides as under :-

"106.
Duration
of
certain
leases in absence of written contract or
local usage-

"(1) In the absence of a contract
or local law or usage to the contrary, a
lease
of
immovable
property
for
agricultural or manufacturing purposes
shall be deemed to be a lease from year to
year, terminable, on the part of either
lessor or lessee, by six months' notice;
and a lease of immovable property for
any other purpose shall be deemed to be
a
lease
from
month
to
month,
terminable, on the part of either lessor or
lessee, by fifteen days' notice.

(2) Notwithstanding anything
contained in any other law for the time
being in force, the period mentioned in
sub-section(1) shall commence from the
date of receipt of notice.

(3)
A
Notice
under
subsection(1) shall not be deemed to be
invalid
merely
because
the
period
mentioned therein falls short of the period
specified under that sub-section, where a
suit or proceeding is filed after the expiry
of the period mentioned in that subsection.

(4) Every notice under subsection(1) must be in writing, signed by or on
behalf of the person giving it, and either be
sent by post to the party who is intended to be
bound by it or be tendered or delivered
personally to such party, or to one of his
family or servants at his residence, or (if such
tender or delivery is not practicable) affixed to
a conspicuous part of the property."

15. Admittedly, the rent of the
disputed shop was Rs.3000/-, per month.
Therefore, the provisions of U.P. Act
No.XIII of 1972 are not applicable. The
notice dated 11.09.2013 under Section
106 of the Act, 1882 was issued by the
plaintiff-landlady for termination of the
tenancy on expiry of 30 days. Thus, the
tenancy stood terminated on expiry of the
period of notice.
2 All. Pawan Kumar & Anr. Vs Smt. Sita Devi
1217

16. In Jeevan Dass vs. L.I.C.
(1994) Suppl. 3 SCC 694, Hon'ble
Supreme Court held that "Section 106 of
the T.P. Act does indicate that the
landlord is entitled to terminate the
tenancy by giving 15 days' notice, if it is a
premises occupied on monthly tenancy
and by giving 6 months' notice and if the
premises are occupied for agricultural or
manufacturing purposes; and on expiry
thereof proceedings could be initiated.
Section 106 of the T.P. Act does not
contemplate of giving any reason for
terminating the tenancy." Undisputedly
in the present set of facts, the tenancy was
on month to month basis and a notice date
09.09.2013 determining the tenancy was
issued by the plaintiff landlady to the
defendant-tenant and the tenancy stood
determined on expiry of the period of
notice on 30 days. Thereafter the plaintifflandlady instituted SCC Suit No.49 of
2014 for eviction of the defendant-tenant.

17.

In
Sri
Ram
Urban
Infrastructure Ltd. vs. High Court of
Bombay, (2015) 5 SCC 539 (Para-18),
Hon'ble Supreme Court held that "if the
notice is a short of the period specified in
Sub-Section (1) but the suit or proceeding
is filed after the expiry of the period
mentioned in Sub-Section (1), the notice
shall not be deemed to be invalid even
though the suit was filed after six months
of the notice."

18. In Vasantkumar Radhakisan
Vora vs. Board of Trustees of the Port
of Bombay, (1991) 1 SCC 761 (Para-6),
Hon'ble Supreme Court held that "by
issuance of notice to quit automatically
the right created thereunder, namely,
cessation of the lease, does not become
effective till the period prescribed in the
notice or in the statute i.e. Section 106
expires. On expiry thereof the lease
becomes inoperative and the lessor
acquires right to have the tenant ejected.
When the tenant fails to deliver vacant
possession, the lessor would be entitled to
have the tenant ejected and to take
possession in due process of law."

19. In Tata Steel Limited vs. State
of Jharkhand, (2015) 15 SCC 55 (Para33), Hon'ble Supreme Court held that
"Section 111 of the Transfer of Property
Act specifies various contingencies in
which a lease of immovable property
determines. Clause (h) stipulates that
expiration of a notice to determine the
lease duly given by the lessor (in
compliance with the requirement of
Section 106) is one of such contingencies
but the Transfer of Property Act, does
not authorise the lessor to physical
recovery of possession of the property on
the determination of the lease. The lessor
is
still
required
to
approach
the
competent
court
for
recovery
of
possession of the property over which the
lease is terminated." Thus, on expiry of
period of notice under Section 106 of the
Act, 1882, the contractual tenancy of the
disputed property stood determined. For
recovery of possession, the plaintifflandlady has approached the competent
court by filing the SCC suit.

20. In V. Dhanapal Chettiar v.
Yesodai Arnrnal, (1979) 4 SCC 214, a
Seven Judges Constitution Bench of
Hon'ble Supreme Court held that "in the
matter of determination of tenancy, the
State Rent Acts do not permit a landlord
to snap his relationship with the tenant
merely by serving on him a notice to quit
as is the position under the Transfer of
Property Act." The landlord can recover
possession of the property only on one or
1218 INDIAN LAW REPORTS ALLAHABAD SERIES
more of the grounds enacted in the
relevant section of the Rent Act. Even
after the termination of the contractual
tenancy, the landlord under the definitions
of landlord and tenant contained in the
Rent Acts, remains a landlord and a tenant
remains a tenant. The difference between
the position obtaining under the Transfer
of Property Act and the Rent Act in the
matter of determination of a lease is that
under the former Act in order to recover
possession
of
the
leased
premises,
determination of the lease is necessary
because during the continuance of the
lease,
the
landlord
cannot
recover
possession of the premises while under
the Rent Acts, the landlord becomes
entitled to recover possession only on the
fulfilment of the conditions laid down in
the relevant sections. He cannot recover
possession merely by determining the
tenancy. Nor can he be stopped from
doing so on the ground that he has not
terminated the contractual tenancy. The
principle laid in V. Dhanapal Chettiar
(supra) has also been followed in Majati
Subbarao vs P.K.K. Krishna Rao,
(1989) 4 SCC 732 (Para-5). In V.
Dhanapal Chettiar (supra), a Seven
Judges Constitution Bench of Hon'ble
Supreme Court in para-6 appropriately
explained the provisions of Section 106
and Section 111 (h) of the Act, 1882 and
held as under:-

"6. Section III deals with the
question of determination of lease, and in
various clauses (a) to (h) methods of
determination of a lease of immovable
property are provided. Clause (g) deals
with the forfeiture of lease under certain
circumstances and at the end are added
the words "and in any of these cases the
lessor or his transferee gives notice in
writing to the lessee of his intention to
determine the lease." The notice spoken of
in clause (g) is a different kind of notice
and even without the State Rent Acts
different views have been expressed as to
whether such a notice in all cases is
necessary or not. We only observe here
that when the State Rent Acts provide
under what circumstances and on what
grounds a tenant can be evicted, it does
provide that a tenant forfeits his right to
continue in occupation of the property
and makes himself liable to be evicted on
fulfilment of those conditions. Only in
those State Acts where a specific
provision has been made for the giving of
any notice requiring the tenant either to
pay the arrears of rent within the
specified period or to do any other thing,
such as the Bombay Rent Act or the West
Bengal Rent Act, no notice in accordance
with clause (g) is necessary. A lease of
immovable property determines under
clause (h):-

"On the expiration of a notice to
determine the lease, or to quit, or of
intention to quit, the property leased, duly
given by one party to the other."

It is this clause which brings
into operation the requirement of section
106 of the Transfer of Property Act.
Without adverting to the effect and the
details of waiver of forfeiture, waiver of
notice to quit, relief against forfeiture for
non-payment of rent etc. as provided for
insections 112to114Aof the Transfer of
Property Act, suffice it to say that under
the said Act no ground of eviction of a
tenant has to be made out once a
contractual tenancy is put to an end by
service of a valid notice undersection
106of the Transfer of Property Act. Until
and unless the lease is determined, the
lessee
is
entitled
to
continue
in
possession. Once it is determined it
becomes open to the lessor to enforce his
2 All. Pawan Kumar & Anr. Vs Smt. Sita Devi
1219
right of recovery of possession of the
property against him. In such a situation
it was plain and clear that if the lease of
the immovable property did not stand
determined under any of the clauses (a) to
(g) of section 111, a notice to determine it
undersection 106 was necessary. But
when under the various State Rent Acts,
either in one language or the other, it has
been provided that a tenant can be evicted
on the grounds mentioned in certain
sections of the said Acts, then how does
the question of determination of a tenancy
by notice arise? If the State Rent Act
requires the giving of a particular type of
notice in order to get a particular kind of
relief, such a notice will have to be given.
Or, it may be, that a landlord will be well
advised by way of abundant precaution
and in order to lend additional support to
his case, to give a notice to his tenant
intimating that he intended to file a suit
against him for his eviction on the ground
mentioned in the notice. But that is not to
say that such a notice is compulsory or
obligatory or that it must fulfil all the
technical requirements of section 106 of
the Transfer of Property Act. Once the
liability to be evicted is incurred by the
tenant, he cannot turn round and say that
the contractual lease has not been
determined. The action of the landlord in
instituting a suit for eviction on the
ground mentioned in any State Rent Act
will be tantamount to an expression of his
intention that he does not want the tenant
to continue as his lessee and the jural
relationship of lessor and lessee will come
to an end on the passing of an order or a
decree for eviction. Until then, under the
extended definition of the word 'tenant'
under the various State Rent Acts, the
tenant continues to be a tenant even
though the contractual tenancy has been
determined by giving a valid notice
undersection 106of the Transfer of
Property
Act.
In
many
cases
the
distinction between a contractual tenant
and a statutory tenant was alluded to for
the
purpose
of
elucidating
some
particular aspects which cropped up in a
particular case. That led to the criticism
of that expression in some of the
decisions. Without detaining ourselves on
this aspect of the matter by any elaborate
discussion, in our opinion, it will suffice
to say that the various State Rent Control
Acts make a serious encroachment in the
field of freedom of contract. It does not
permit
the
landlord
to
snap
his
relationship with the tenant merely by his
act of serving a notice to quit on him. In
spite of the notice, the law says that he
continues to be a tenant and he does so
enjoying all the rights of a lessee and is at
the same time deemed to be under all the
liabilities such as payment of rent etc. in
accordance with the law."

21. In the aforesaid judgemnt in V.
Dhanapal Chettiar (supra), a Seven
Judges Constitution Bench of Hon'ble
Supreme Court referred to the earlier Five
Judges Bench judgment of Mangilal vs.
Suganchand Rathi, AIR 1965 SC 101 in
which it was held as under:-

"The Accommodation Act does
not in any way abrogate Chapter V of the
Transfer of Property Act which deals with
leases
of
immovable
property.
The
requirement of Section 106 of the
Transfer of Property Act is that a lease
from month to month can be terminated
only after giving fifteen days' notice
expiring with the end of a month of the
tenancy either by the landlord to the
tenant or by the tenant to the landlord.
Such a notice is essential for bringing to
an end the relationship of landlord and
1220 INDIAN LAW REPORTS ALLAHABAD SERIES
tenant. Unless the relationship is validly
terminated the landlord does not get the
right to obtain possession of the premises
by evicting the tenant. Section 106 of the
Transfer of Property Act does not
provide for the satisfaction of any
Additional
requirements.
But
then,
Section 4 of the Accommodation Act steps
in and provides that unless one of the
several grounds set out therein is
established or exists, the landlord cannot
evict the tenant."

22. Thus, in the present set of facts
after the tenancy was terminated by the
landlady on expiry of the period of notice
dated 09.09.2013 under Section 106 of the
Transfer of Property Act, the consequence
is that the relationship of landlady and
tenant between the plaintiff-landlady and
the defendant-tenant/ petitioner came to
an end and the landlady has right to obtain
possession of the disputed shop by
evicting the tenant.

23. Much insistence has been laid by
learned counsel for the tenants-petitioners
on two lines of the evidence of P.W. 1
that the space of the disputed shop is not
sufficient for the franchise. I have looked
into the evidence of P.W. 1. The evidence
of P.W. 1 has to be read as a whole and
not in isolation. I find that P.W.1 has very
specifically stated that adjoining the
disputed shop is the shop of his father of
Hosiery Goods. He narrated in detail that
the tenants-petitioners have not vacated
the disputed shop even after the tenancy
was determined. Negotiations were going
on for the franchise but he could not get
the
franchise.
In
his
evidence
on
17.11.2016,
P.W.1
stated
that
for
dealership company gave six months time
to arrange for accommodation but the
accommodation could not be arranged.

24. Both the courts below have
recorded the concurrent findings of fact
based
on
consideration
of
relevant
evidences on record that need of the
plaintiff-landlady for the disputed shop is
her bonafide need. Therefore, it requires
no interference.

Whether son/power of attorney
holder of a landlord can depose on
behalf of the landlord in a rent case in
regard to matters involving personal
knowledge:-

25. In support of his submission that
the P.W. 1 could not have deposed on
behalf of the plaintiff-landlady, learned
counsel
for
the
defendantstenants/petitioners has relied upon the
judgment of Hon'ble Surpeme Court in
Man Kaur (supra)(paragrap 18), as
under:-

"18. We may now summarise
for convenience, the position as to who
should give evidence in regard to matters
involving personal knowledge:

(a) An attorney holder who has
signed the plaint and instituted the suit,
but has no personal knowledge of the
transaction
can
only
give
formal
evidence about the validity of the power
of attorney and the filing of the suit.

(b) If the attorney holder has done
any act or handled any transactions, in
pursuance of the power of attorney granted by
the principal, he may be examined as a
witness to prove those acts or transactions. If
the attorney holder alone has personal
knowledge of such acts and transactions and
not the principal, the attorney holder shall be
examined, if those acts and transactions
have to be proved.

(c) The attorney holder cannot
depose or give evidence in place of his
2 All. Pawan Kumar & Anr. Vs Smt. Sita Devi
1221
principal for the acts done by the
principal or transactions or dealings of
the principal, of which principal alone
has personal knowledge.

(d) Where the principal at no
point of time had personally handled or
dealt
with
or
participated
in
the
transaction
and
has
no
personal
knowledge of the transaction, and where
the entire transaction has been handled
by an attorney holder, necessarily the
attorney holder alone can give evidence
in regard to the transaction. This
frequently happens in case of principals
carrying on business through authorized
managers/attorney holders or persons
residing abroad managing their affairs
through their attorney holders.

(e)
Where
the
entire
transaction has been conducted through
a
particular
attorney
holder,
the
principal has to examine that attorney
holder to prove the transaction, and not
a different or subsequent attorney
holder.

(f) Where different attorney
holders had dealt with the matter at
different stages of the transaction, if
evidence has to be led as to what
transpired at those different stages, all the
attorney
holders
will
have
to
be
examined.

(g) Where the law requires or
contemplated the plaintiff or other party
to a proceeding, to establish or prove
something with reference to his "state of
mind" or "conduct", normally the
person concerned alone has to give
evidence and not an attorney holder. A
landlord who seeks eviction of his
tenant, on the ground of his "bona fide"
need and a purchaser seeking specific
performance who has to show his
''readiness and willingness' fall under
this category. There is however a
recognized exception to this requirement.
Where all the affairs of a party are
completely managed, transacted and
looked after by an attorney (who may
happen to be a close family member), it
may be possible to accept the evidence of
such attorney even with reference to
bona
fides
or
''readiness
and
willingness'. Examples of such attorney
holders are a husband/wife exclusively
managing the affairs of his/her spouse, a
son/daughter exclusively managing the
affairs of an old and infirm parent, a
father/mother exclusively managing the
affairs of a son/daughter living abroad.

26. The judgment of Hon'ble
Supreme
Court
in
Janki
Vashdeo
Bhojwani case (supra) relied by learned
counsel
for
the
petitioner
has
no
application on the facts of the present case
since it relates to filing of a suit due to
non payment of loan by the borrower and
not in a rent case.

27. Besides above, both the courts
below have found that the P.W. 1 Anoop
Kumar is the only son and power of
attorney holder of the plaintiff landlady
who has given his evidence in his
personal capacity. This is a findings of
fact.

28. Undisputedly, the plaintifflandlady has appointed her power of
attorney to Sri Anoop Kumar Agarwal
who is the only son of the plaintifflandlady. In paragraph-2 of the plaint
of the S.C.C. Suit No.49 of 2014, it was
clearly stated that the plaintiff-landlady
is an old lady and often remains ill,
and, therefore, on her behalf, her son
Anoop Kumar Agarwal has always
been looking after and maintaining the
disputed house and collecting rent from
1222 INDIAN LAW REPORTS ALLAHABAD SERIES
tenants and taking action for eviction
etc. The contents of this paragraph has
been admitted by the defendant-tenant/
petitioner in paragraph-2 of the written
statement. Thus, the evidence given by
the power of attorney holder Sri Anoop
Kumar Agarwal (son), falls under the
recognised exception of the requirement
of giving evidence by the landlord who
seeks eviction of his tenant on the ground
of his bona fide need. Admittedly, power
of attorney holder and the only son Sri
Anoop
Kumar
Agarwal
has
been
exclusively managing the affairs relating
to the house in question owned by his
mother Smt. Sita Devi who is an old lady
and often remains ill. Therefore, the
deposition made by him, cannot be said to
suffer
from
any
legal
infirmity,
particularly in view of the law laid down
by Hon'ble Supreme Court in the case of
Man Kaur (supra).

Conclusion:-

29.

Conclusions
reached
in
foregoing paragraphs of this judgment,
are briefly summarized as under:

(i) Intention of landlord to
treat the lease as subsisting and his
knowledge of the fact that his conduct
amounts to waiver, are the basic
essentials
of
waiver
contained
in
Section 113 of the Act 1882.

(ii) Facts of the present case
leaves no manner of doubt that the
plaintiff-landlady/respondent has never
waived her notice under Section 113 of
the Act 1882. On the contrary, after
determining the tenancy by notice dated
11.9.2013, she instituted SCC Suit No.49
of 2014 (Sita Devi Vs. Pawan Kumar and
others) on 5.8.2014. She has been
contesting the suit. Thus, no element of
waiver of notice can be inferred on the
facts of the present case.

(iii) Mere acceptance of rent
did not by itself constitute an act of the
nature envisaged by section 113 of the
Transfer of Property Act showing an
intention to treat the lease as subsisting.
Even after accepting the rent tendered,
a landlord may file a suit for eviction,
and even while prosecuting the suit he
may accept the rent which was being
paid to him by the tenant. It cannot,
therefore, be said that mere acceptance
of rent amounts to waiver of notice to quit
unless there be any other evidence to
prove or establish that the landlord so
intended.

(iv) Section 106 of the T.P. Act
does indicate that the landlord is entitled
to terminate the tenancy by giving 15
days' notice, if it is a premises occupied
on monthly tenancy and by giving 6
months' notice if the premises is occupied
for
agricultural
or
manufacturing
purposes;
and
on
expiry
thereof
proceedings could be initiated. Section
106
of
the
T.P.
Act
does
not
contemplate of giving any reason for
terminating the tenancy.

(v) By issuance of notice to quit
automatically the right created thereunder,
namely, cessation of the lease, does not
become effective till the period prescribed
in the notice or in the statute i.e. Section
106 expires. On expiry thereof the lease
becomes inoperative and the lessor
acquires right to have the tenant ejected.
When the tenant fails to deliver vacant
possession, the lessor would be entitled to
have the tenant ejected and to take
possession in due process of law.

(vi) The difference between the
position obtaining under the Transfer of
Property Act and the Rent Act in the
matter of determination of a lease is that
2 All. Pawan Kumar & Anr. Vs Smt. Sita Devi
1223
under the former Act in order to recover
possession
of
the
leased
premises,
determination of the lease is necessary
because during the continuance of the
lease,
the
landlord
cannot
recover
possession of the premises while under
the Rent Act, the landlord becomes
entitled to recover possession only on the
fulfilment of the conditions laid down in
the relevant sections. He cannot recover
possession merely by determining the
tenancy.