# TAYABALIJAFERBHAITANKIWALA v. M/S. ASHA & CO. AND ANR

- **Citation:** [1970] 2 S.C.R. 554
- **Court:** Supreme Court of India
- **Decided:** 1970
- **Case number:** Civil Appeal No. 1741 of 1966
- **Bench:** J.C. Shah, V. Ramaswami, A. N. Grover
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/tayabalijaferbhaitankiwala-v-m-s-asha-co-and-anr-4865
- **Pages:** 5

## Headnote

l~andlord and Tenant-Notice terminating tenancy-Landlord accepting rent-Second notice of tennination treating the tenancy as subsisting--
Suit for ejectment treating the second notice as non est-Transfer of Property Act, 1882, s. 113 illustration (b).
A landlord gave notice to his tenant, under s. 12 of the Bombay Rents,
Hotel and Lodging House Rates Control Act, 1947, demanding arrears of
rent due and also terminating the tenancy on the ground that the tenant
was a habitual defaulter.
The arrears of rent claimed in the notice were
paid after the expiry of one month mcntionou in the notice. The landlord
gave a second notice calling upon the tenant to deliver vacant possession
of the premises which was stated to be in his occupation as monthly
tenant. lo this notice another ground, viz., that the premises were r~quircd
fo·,r personal use and occupation, was mentioned.
The tenant~ thereafter,
tendered the amount of arrears then due, but the same was reje.::ted. The
landlord brought a suit for ejectment on the ground of default in payment
of arrears of rent and for personal use and occupation. He amended the
plaint by adding tbat the first notice Vi<'as given to the tenant demanding
arrears of rent. The Trial Judge dismissed the suit holding that by serving
a second notice .. and by various acts and conduct the landlord sho•Atcd a
clear intention to waive and. condone the ground of default in payment of
arrears contained in the first notice and that the premises \Vere not teason~
ably and bona fide required by the landlord
for
his own
U5'.
The
Appellate Court held the first no'tice invalid on different grounds and a
petition under Art. 227 before the High Court was disn1is5ed j,i liinine.
Jn appeal to this Court it \Vas contended that since the arrears c;.dn1ed
in the first notice \Vere paid after the expiry of the period of on~ month
after notice referred to in sub-s. 2 of s. 12., the court was bound to Dass
a decree for eviction.
Dismissing the appeal,
HELD : Under s. 113 of the Transfer of Property Act a notice ~iven
under s. 111 cl. (h) is V.'aived 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.
The section does
not in terms appear to indicate that fdr bringing about a waiver under the
section a new tenancy by an express or implied agreement must come into
existence. All that has to be seen is whether any act has been proved on
the part of the appellant which shows an intention to treat the lease as
subsisting provided there is an express or implied consent of the person to
whom the notice is given. [557 E-F; 558 A-C]
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In the present case the serving of the second notice and whal was
stated thei'ein together with the claim as laid and amplified in the piaint
showed that the Jandlord waived the first notice by showing an intention
to treat the tenancy as subsisting and that this was with the express or
implied consent of the tenant., It was not open, therefore., to the landlord
H
to s~y that he did not want to rely on the second notice and should be,
allowed to base his claim for eviction only on the first notice contai:1ing
the ground of the default in payment of arrears of rent. rs58 C-E. F-G]
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TAYABALI v. ASHA & CO. (Grover, I.)
555

## Text

554
TAYABALIJAFERBHAITANKIWALA
v.
M/S. ASHA & CO. AND ANR.
September 2.4, 1969
[J.C. SHAH, V. RAMASWAMI AND A. N. GROVER, JJ.]
l~andlord and Tenant-Notice terminating tenancy-Landlord accepting rent-Second notice of tennination treating the tenancy as subsisting--
Suit for ejectment treating the second notice as non est-Transfer of Property Act, 1882, s. 113 illustration (b).
A landlord gave notice to his tenant, under s. 12 of the Bombay Rents,
Hotel and Lodging House Rates Control Act, 1947, demanding arrears of
rent due and also terminating the tenancy on the ground that the tenant
was a habitual defaulter.
The arrears of rent claimed in the notice were
paid after the expiry of one month mcntionou in the notice. The landlord
gave a second notice calling upon the tenant to deliver vacant possession
of the premises which was stated to be in his occupation as monthly
tenant. lo this notice another ground, viz., that the premises were r~quircd
fo·,r personal use and occupation, was mentioned.
The tenant~ thereafter,
tendered the amount of arrears then due, but the same was reje.::ted. The
landlord brought a suit for ejectment on the ground of default in payment
of arrears of rent and for personal use and occupation. He amended the
plaint by adding tbat the first notice Vi<'as given to the tenant demanding
arrears of rent. The Trial Judge dismissed the suit holding that by serving
a second notice .. and by various acts and conduct the landlord sho•Atcd a
clear intention to waive and. condone the ground of default in payment of
arrears contained in the first notice and that the premises \Vere not teason~
ably and bona fide required by the landlord
for
his own
U5'.
The
Appellate Court held the first no'tice invalid on different grounds and a
petition under Art. 227 before the High Court was disn1is5ed j,i liinine.
Jn appeal to this Court it \Vas contended that since the arrears c;.dn1ed
in the first notice \Vere paid after the expiry of the period of on~ month
after notice referred to in sub-s. 2 of s. 12., the court was bound to Dass
a decree for eviction.
Dismissing the appeal,
HELD : Under s. 113 of the Transfer of Property Act a notice ~iven
under s. 111 cl. (h) is V.'aived 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.
The section does
not in terms appear to indicate that fdr bringing about a waiver under the
section a new tenancy by an express or implied agreement must come into
existence. All that has to be seen is whether any act has been proved on
the part of the appellant which shows an intention to treat the lease as
subsisting provided there is an express or implied consent of the person to
whom the notice is given. [557 E-F; 558 A-C]
A
B
c
D
E
F
G
In the present case the serving of the second notice and whal was
stated thei'ein together with the claim as laid and amplified in the piaint
showed that the Jandlord waived the first notice by showing an intention
to treat the tenancy as subsisting and that this was with the express or
implied consent of the tenant., It was not open, therefore., to the landlord
H
to s~y that he did not want to rely on the second notice and should be,
allowed to base his claim for eviction only on the first notice contai:1ing
the ground of the default in payment of arrears of rent. rs58 C-E. F-G]
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TAYABALI v. ASHA & CO. (Grover, I.)
555
CIVIL APPELLATE JURISDICTION : Civil Appeal No. 1741 of
1966.
Appeal by special leave from the order dated March 18, 1966
of the Bombay High Court in Special Civil Application No. 475
of 1966.
M. C. Chag/a and S. S. Shukla, for the appellant.
S. T. Desai and D. N. Mishra, for respondent No. 1.
The Judgment of the Court was delivered by
Grover J, This is an appeal by special leave from a judgment
of the Bombay High Court and arises in the following circum·
stances :
The suit premises consisting of a shed
at
130, Shuklaji
Street, Bombay are the property of the appellant, and were let
out to the respondent as a monthly tenant. By means of a notice
dated June 13, 1956 the tenant was informed by the landlord
that he was in arrears of rent since July 1, 1953 and was liable
to pay to the landlord a sum of Rs. 1,826/- being the amount of
rent calculated up to the date of the notice.
As he was an habitual defaulter and had been inaking illegal use of a passage attached to the premises without the consent of the landlord hls tenancy
was being terminated. He was further calied upon to make payment of the amount of arrears.
The tenant did not vacate the
premises and a second notice was sent dated October
18,
1957
calling upon him to deliver vacant possession of the premises
which were siated to be in his occupation as a monthly tenant. In
the second notice another ground was mentioned for getting the
premises vacated.
It was that the same were required for
the
personal use and occupation of the landlord. It may be meniioned that prior to the despatch of the second notice the landlord
had been paid and he had received the amount of arrears which
were said to be due in the first notice.
In other words the rent
had been received upto March 1955. On October 30, 1957 the
tenant made a tender by means of a cheque of the full amount of
arrears then due h:.i! the cheque was returned by the landlord.
On March 31, 1958 the landlord filed a suit for ejectment and
for recovery of rent from April 1955 to November 1957 and com·
pensation for use and occupation from December 1957 to February 1958 as also for a certain amount for vacant possession being
H
rack rent of twelve months' rent, the total amount of all the items
being Rs; 2448.12 Np. In July 1960 the plaintiff sought and was
allowed to amend the plaint by introducing the following paraJ!TIIPh :
L1SupCi/7~S
556
SUPREME COURT REPORTS
[1970] 2 S.C.R.
'"Notice dated 13th June 1956 under section 12 of
the Bombay Rent Control Act was given by the plaintiff's advocates to the defendants demanding payment of
arrears of rent from 1st July 1953 upto date 1956,
which has been duly acknowledged. Copy of the said
notice is hereto annexed and marked Ex. 'A'."
The ejectmcnt was claimed on tl\e grou,nd of default in payment
of arrears of rent and for personal use and occupation.
The
foamed trial judge held that by serving a second notice and by
various acts and conduct the landlord showed a clear intention to
waive and condone the ground of default in payment of arrears
contained in the first notice.
As regards the ground of personal
requirement the trial court was not satisfied that the premises
were reasonably and bona fide required by the plaintiff for his own
use. The suit for eviction was dismissed although a decree for
Rs. 1822.97 was granted.
The matter was taken in appeal to
the Court of Small Causes. The appeal court held that there was
no waiver on the part of the landlord as regards the default committed by the tenant in not paying the arrears of rent within one
month after the receipt of the first notice.
In other words, the
service of a serond notice and other facts which had been 'ound by
the trial court did not amount to a waiver of the first notice. But
it was of the view that the demand of the arrears of rent made
in the notice dated June 13, 1956 was excessive and illegal which
made the notice invalid.
The other point about personal neces·
sity appears to have been abandoned by the plaintiff before the
appeal court.
The landlord filed a petition under Art. 227 of
the Constitution in the High Court which was dismLsed in
Ii mine.
It has been contended before us on behalf of the landlord that
the view of the appeal court on the effeci of an excessive demand
having been made in the notice was altogether erroneous. In
Civil Appeal No. 387 of 1964 (Raghunath Ravji Dandekar v.
Anant Narayan Apte)(') this Court laid down that a notice to
quit under the Transfer of Property Act would not be bad because
by mistake or oversight more was demanded in the notice under
s. 12(2) of the Bombay Rents, Hotel and Lodging House Rates
Conirol Act, 1947 (Act LVII of 1947). hereinafter called the
Act than was due.
It is urged that since the aforesaid infirmity
iii the notice dated June 13, 1956 alone had prevailed with the
appeal court the High Court ought to have entertained the petition under Art. 22 7 and after setting aside the judgment of the
apoeal court the suit for ejectment should have been decreed.
Reliance has been placed on s. 12 ( 3 )(a) of the Act according to
(!) De=ide1 on April 5, 1966.
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TAYABALI v. ASHA & co. (Grover, J.)
557
which where the rent is payabk by the months and there is no dispute regarding the amount of standard rent or permitted increases
if such rent or increases are in arr.~ars for a period of six mor.ths
or more and the tenant neglects to make payment thereof until
the expiration· of the period of one month after notice referred to
in sub-s. (2), the court shall pass a decree for eviction in any such
suit for recovery of possession. It is argued that the notice dated
June 13, 1956 was the only notice which after the amendment
introduced in the plaint by paragraph 3A was to be treated ~s a
valid notice and since there had been non-compliance with
the
demand made in that notice the court was bound to pass a decree
for eviction.
As there was failure to exercise jurisdiction the
High Court had the power and the authority to interfere in a petition under Art. 227 of the Constitution.
It seems to us that on the facts which have been established
the landlord was bound to fail. It is abundantly clear that he
had, in the second notice dated October 18, 1957, treated
the
tenancy as subsisting and not only the respondent was described
as a monthly tenant but also in the plaint, even after the amendment had been allowed, rent was claimed upto November 1957;
thereafter the amount due was described as compensation for use
and occupation. The plaintiff was thus fully alive to the distinction between rent and damages for use and occupation and it cannot be said that he had abandoned the second notice and asked
for the same to be treated as non-est or that he had relied solely
on the first notice dated June 13, 1956. Under s.
113 of the
Transfer of Property Act a notice given under s. 111. cl. (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. I11ustration (b) is in
the following terms :
"(b) A, the lessor, gives B, the lessee, notice to quit
the property leased. The notice expires, and B remains
in passession. A gives to B as Jessee 8 second notice to
quit. The first notice is waived".
If only the Ja11guage of the illustration were to be considered a~
soon as the second notice was eiven the first notice would stand
waived. Counsel for the appellant has relied on the observation
of Denning, J., (as he then was) in Lowenthal v.
Vanho11te(1)
that where a tenancy is determined by a notice to quit it is not
revived by anvthing ~hort of a new tenancv and in order to create
a new tenancy there must be an express or implied agreement to
that effect and further that a subsequent notice to quit is of no
effect unless, with oJier circumstances. it is the basis for inferring
(I) (1947]
I K.B.D. 342.
558
SUPREME COURT REPORTS
{1970J; 2 S.C.R
an intention to create a new tenancy after the expiration of the
first. The Privy Council in Harihar Banerji & Ors. v. Ramsashi
Roy & Ors.(') had said that the principles governing a noti.al to
quit under s. 106 of the Transfer of Property Act were the same
in England as well as in India.
For the purpose of the present
case it is wholly unnecessary to decide whetl:ier for bringing about
a waiver under s. 113 of the Transfer of Property Act a new tenancy by an express or implied agreement must ~.:>me into existence. All that need be observed is that s. 113 in terms d0es not
appear to indicate any such requirement and all that has to be
seen is whether any act has been proved on the part "Jf the pre:ent
appellant which shows an intention to treat the lease as subsisting
provid.~d there is an express or implied consent of the person to
whom the notice is given.
Jn the present case there can be no doubt that the serving of
the se:ond notice and what was stated therein together with the
claim as laid and amplified in the plaint showed that the landlord
waived the first notice by showing an. intention to treat the tenancy
as subsisting and that this was with the express or implied consent
of the tenant to whom the first notice had been given because he
had even made· payment of the rent which had been demanded
though it was after the expiration of the period of one month given
in the notice.
It further appears that the ren: was sent by the tenant treating the tenancy as subsisting and not as having come to an end
by virtue of the first notice.
There is another significant fa;;t
which shows that it was the second notice which was considered
bv the landlord to be the effective notice. It was in the norice
sent m October 1957 that the landlord, for the first time, rais~d
the ground of personal necessity. In the suit requirement of per•
mnal necessity was made one of the main grounds on which eviction was sought. In the first notice which was sent in June 1956
no such requirement or ground had been mentioned. It was not
open. therefore, to the landlord to say that he did not want to rely
on the second notice and should be allowed to base his action
for eviction only on the first notice containing the ground of the
dP.fault in ryayment of arrears of rent. We are satisfied that the suit
of the landlord was rightly dismissed though we have sustained its
dismissal on different reasoning.
The appeal, therefore, fails and it is dismissed with costs.
Y.P .
Appeals dismissed.
. ~~~~~~~~~
(I) 4S I.A. 222.
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