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TMI Blog1975 (2) TMI 122X X X X Extracts X X X X X X X X Extracts X X X X ..... of rent on the ground that the lessor provided extra accommodation and further amenities was resisted by the lessee who took the stand that no improvement was made or extra accommodation provided entitling the lessor to any enhancement of rent. Hence, disputes arose between the parties since 1963 resulting in the institution of S.C. Suit No. 340/63 on the file of the Subordinate Judge's Court, Guntur and O.S. No. 119/66 on the file of the District Munsif's Court, Guntur by the lessor for recovery of arrears of rent and other amounts said to be due and payable by the lessee, and O.S. No. 487/66 by the lessee for an injunction restraining the lessor from interfering with his possession. Thereupon, the lessor issued a registered notice Ex. A-1 dated 1-10-1966 calling upon the appellant-lessee to vacate the premises within 15 days time. No reply to Ex. A=1 was sent by the lessee. In the circumstances O.S. No. 107/67 on the file of the Additional District Munsif's Court, Guntur for recovery of possession of the suit premises with all the buildings, machinery plant etc. and subsequent rent or damages was instituted on 4-2-1967 by the lessor against the lessee. The original wr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and does not satisfy the requirements of Section 106 of the T. P. Act and therefore, the plaintiff cannot seek to get back the possession as there was no proper notice terminating the tenancy, dismissed the suit. 3. On appeal preferred by the plaintiff, the learned District Judge, disagreeing with the trial Court, held that there was no need for the lessor to give any notice to quit in view of the specific condition in the original lease deed that the lease shall give possession of all the schedule property to the lessor immediately after the expiry of the period of lease or on the termination of the lease and even if it a was necessary, the defendant-lessee had waived its right as regards the notice to quit and therefore, the lessee could not raise any objection about the non-issue of any notice to quit as it was not raised in the original written statement. It was found that the notice Exhibit A-1 was not valid but however, in view of the fact that six months period had expired during the pendency of the suit, a decree for possession could not passed in the suit itself without driving the lessor to a fresh suit. In the result, the appeal was allowed setting aside the judgment ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... chandra Rao, the learned counsel for the respondent contended that no notice terminating the tenancy to terms of Section 106 of the T. P. Act need be issued by his client on the original lease deed itself provided that each notice is not necessary and even assuming that a notice to quit is necessary under the said section, the validity of a defective notice can be waived by the lessee and, in fact, it has been waived in this case by the defendant, and, therefore, there is no merits in this appeal. 7. Upon the respective contentions advanced on behalf of the parties, the following questions arise for decision : 1. Whether notice to quit under Section 106 of the Transfer of Property Act to a tenant holding over is or is not necessary when the original lease deed contains a term that the tenant will quit without notice after the expiry of the period fixed by the original lease ? 2. Whether, on the facts and in the circumstances, the defendant-appellant can be deemed to have waived its right to question the validity of the plaintiff's notice Ex. A-1 terminating the tenancy ? 8. We shall first task up question No. 1. The answer to the question depends upon the provisions ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he lease is for a fixed term, no notice is necessary to determine such tenancy. But, however, until a periodic tenancy is determined by the issuance and service on the tenant of a notice to quit under Section 106, the lessor cannot treat the lessee who continues to be in possession even after the expiry of the term of the lease, as a trespasser. Where a lessee continues in possession of the property even after the determination of the lease granted to him and the lessor thereupon accepts rents from him, the lease must be said to have been renewed, by virtue of the provisions of Section 116, from year to year or from month to month depending upon the purpose for which the property is leased. Such a lessee or tenant is considered to be a tenant holding over. However, it must be noted that the tenant's mere act of holding over after the expiry of the term of the lease does not invariably create some kind of tenancy. The lessee may be a tenant by sufferance or a tenant holding over or a tenant at will depending upon the facts and circumstances. A tenant who continues to be in possession even after the determination of the lease but without the consent of the landlord is called a te ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the following passage in Mulla's Transfer of Property Act (Sixth Edition by Atul M.Setalvad) at page 770 : What the section contemplates is that on one side there should be an offer of taking a new lease evidenced by the lessee remaining in possession, after the expiry of the lease, and on the other side there must be a definite consent to the continuance of possession by the lessor by the acceptance of rent or otherwise, there must be a bilateral contract by implication. The relationship of landlord and tenant may be created before payment of rent. The learned author proceeded to state at page 772 thus : An agreement to the contrary is an agreement which settle the terms of the holding over. If there is such an express agreement, it will determine the duration and terms of the renewed lease. On a close consideration of the provisions of Sections 106, 111 and 116 of the Act we are of the firm view that the tenancy created by holding over is not the same old tenancy but a new one created by the operation of the provisions of Section 116 and such a tenancy would be governed by the terms of any agreement entered into between the parties for holding over and in the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... efence set up by the sub-tenant was that the tenancy of the plaintiff was validly determined by the lessor by the issuance of the quit notice and hence, he was no longer entitled to eject him. In those circumstances the Calcutta High Court had to determine the question on what terms the plaintiff lessee held over. The learned Judge, Maclean, C.J. who spoke for the Court, ruled while considering the scope of Section 116, of the Act thus : What does the language of that section mean? It does not appear to me to present any serious difficulty in construction. The material words are : if a lessee remains in possession thereof after the determination of the lease............ and the lessor accepts rent from the lessee, which was the case here, the lease is, in the absence of an agreement to the contrary which must mean an agreement as to the terms of the holding over renewed from year to year, or from month to month, according to the ........... purpose for which the property is leased, as specified in Section 106. That takes us back to Section 106. In view of the fact that the property was leased for purposes other than agricultural or manufacturing purposes, 15 days noti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ovisions of Sec. 116 of the Act. The learned Judges, after quoting section 116 of the Act observed thus :-- It is conceded that in this case the tenancy is for manufacturing purposes and therefore it is a tenancy from year to year. There can be no question that the words in the section in the absence of an agreement to the contrary must refer to an agreement as to the terms of holding over. This point was decided so far back as in the year 1904 by Sir Francis Maclean, C.J., Bodily, J., and Mookerjee, J., in the case of Troilokya Nath Roy v. Sarat Chandra I L R (1905) Cal 123 xx xx xx xx In our opinion as soon as the rent was accepted it was a new contract of the tenancy and that it was a contract of tenancy from year to year according to the purposes for which tenancy was taken. That being so, we are of opinion that the District Judge, took a correct view of the case. 12. We may now notice the decisions of the Madras High Court where the view expressed by the Calcutta High Court in Troilokyanath v. Sarat Chandra Banjejee, I L R (19050 Cal 123 and Dasarathi Kumar v. Sarat Chandra, was adopted. 13. In Gnanadesikam v. Anthony, AIR 1934 Mad 458, a Division Bench of the Mad ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ear was created, it is not possible to carry over this collateral security which is certainly on part of the lease transaction, so as to enable the plaintiff to claim the arrears of rent for the whole of the subsequent period, as if that mortgage was also created for the rent due subsequent to the transformation of the tenancy into one from year to year. The test is not whether the particular clause in Ex. E or is not repugnant to the terms of the lease. On the other hand, the true test is whether this clause can really be deemed to be any part of the terms which constituted the transaction of the lease itself. In a recent decision reported in Dasarathi Kumar v. Sarat Chandra it was held that stipulation in the original lease that at the expiration of the term, the lessee should give up possession without notice, could not be imported into the new tenancy created by holding over and the decision is in consonance with the view we have expressed. If the mortgage created under Ex. E is of no avail to the plaintiff for the recovery of rent due subsequent to the expiration of the term of two years, he can only recover the rent due for three years prior to date of suit according to o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... holding over under Section 116 of the Act, the learned Judge B.K. Mukherjea, J., who spoke for the majority, rules at page 127 thus: It is perfectly right that the tenancy which is crated by the holding over of a lessee or under-lessee is not tenancy in law even though any of the terms of the old lease might be continued in it, by implication, and it cannot be disputed that to bring new tenancy into existence, there must be a bilateral act. What Section 116 T. P. Act, contemplates is that no one side there should an offer of taking a renewed or fresh demise evidenced by the lessee or sub-lessee's continuing in occupation of the property after his interest has ceased and on the other side there must be a definite assent to this continuance of possession by the landlord expressed by acceptance of rent or otherwise. It can scarcely be disputed that the assent of the landlord which is founded on acceptance of rent must be acceptance of rent as such and in clear recognition of the tenancy right asserted by the person who pays it. The learned Judge, Patanjali Sastri, J., (as he then was) who dissented from the majority on other questions, also agreed that a fresh tenancy re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the erstwhile landlord and the erstwhile tenant, if the tenant has the statutory right to remain in possession and if he pays the rent, that will not normally be referable to an offer for his continuing in possession which can be converted into a contract by acceptance thereof by the landlord. .. . the whole basis of Section 116 of the Transfer of Property Act is that in case of normal tenancy, landlord is entitled, where he does not accept the rent after the notice to quit, to file a suit in ejectment and obtain a decree for possession, and so his acceptance of rent is an unequivocal act referable only to his desire to assent to the tenant continuing in possession. That is not so where Rent Act exists ........... the animus of the tenant in tendering the rent is also material. If he tenders the rent as the rent payable under the statutory tenancy, the landlord cannot be accepting it as rent, create a tenancy by holding over. In such a case the parties would not be ad idem and there will be no consensus. 16. The decision of the Federal Court in Kai Khushroo Bezonjee Capadia v. Bai Jerbai, Hirjibhoy Warden, AIR 1949 Financial Corporation 124 which has been approved by the Supre ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ave been fully argued before them . In the lease deeds executed by the tenants, Ex. P-6 series, there was a term that they should surrender possession at the end of the period without notice. The defendants-tenants continued in possession after the termination of the e lease period but no notice terminating the lease was given to the tenants. In those circumstances the submission made on behalf of the appellants-tenants that Section 116 of the Act would apply only to terms such as rate of rent but no to stipulations about notice in relation to the termination of tenancy, was accepted by the learned Judges. In arriving at their conclusion the learned Judges relied upon the view taken by the Division Bench of the Calcutta High Court in Dasarathi Kumar v. Sarat Chandra, and the earlier Division Bench of the Madras High Court in Gnanadesikam v. Anthony, AIR 1934 Mad 458 and Horwell, J. of the Madras High Court in unreported decision in S.A. No. 2124/1945 (Mad) etc., (cited supra) and observed that There is thus ample authority in support of the position contended for by the appellants . The decisions in Kelu v. A. Mamad Kutti, 1910 Mad WN 794, Moosa Kutty v. Kovilakath Thekke, A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r issued a notice to quit under Ex. B dated 5th July 1906 to 1st defendant even before the expiry of the term of one year. As the lessee did not vacate the premises, the lessor instituted a suit on February 22, 1907 for eviction of the defendants 1 to 3 and for recovery of possession of the land and for rent. The suit was decreed. On appeal, the District Judge found that the notice issued under Ex. B on July 5, 1906 was not proper and valid and therefore allowed the appeal. In the second appeal, the following order was passed : Seeing that in Exhibit A there is an express provision to surrender on demand we think there is a contract to the contrary within the meaning of Section 106 of the Transfer of Property Act. The plea of waiver raised for the respondents was not taken in either of the Courts below. We, therefore, reverse the decree of the District Judge and restore the Decree of the District Munsif with costs........... That was not a case of tenant holding over by virtue of the provisions of Section 116 of the Act. In fact, a notice to quit was issued even prior to the expiry of the one year lease period. There was no stipulation that the lessee would surrender poss ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... single Judge of the Allahabad High Court in Badal v. Ram Bharosa, is not directly on point. The question that fell for decision was as to when tenancy must be deemed to have commenced under Section 116 of the Act. In view of the fact that the original tenancy commenced on October 24, the tenancy created under Section 116 by the tenant holding over was held to have commenced on 24th October. Hence, that case is distinguishable. 21. The decision of the Division Bench of the Madras High Court in Arunachala Naicker v. Ghulam Mahmood Saheb, AIR1951Mad408 is an authority for the proposition that the Court must construe the contract governing the question of quit notice in a reasonable way to ascertain what the parties (lessor and lessee) intended by way of notice and it must not attempt to read into the agreement some term that would have to be implied only if there were no agreement at all. Therein, a small plot of land was leased under lease deed ex. P-1 dated August 4, 1917 for a period of 2 years on a rent of ₹ 2/- per month. One of the material terms of the lease was: Besides this, if you, after the expiry of the said stipulated period send me a notice giving one month ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lationship should be governed by the terms o the original contract. This may be noticed from the following passage in the judgment: There is a great deal to be said for the appellant's contention that fresh contract were entered into from time to time .......... The pleadings and the correspondence between the parties lead to the conclusion that the only discussion entered into between the parties from time to time was with regard to the amount of rent to be paid and that otherwise they intended that the legal relationship should be governed by the terms of the original contract x x x If, except, as to rent, the parties intended to be governed by the original contract, thus it would follow that only one month's notice was necessary and that the lessor could give that month's notice at anytime he chose. 22. We shall now advert to the decision of the Supreme Court in Manujendra Dutt v. P. P. Roy Chowdhury, [1967]1SCR475 . Therein, the appellant took certain land under a registered lease dated December, 4 1934 from Bhowanipura Wards Estate for a fixed term of 10 years at a monthly rent of ₹ 47-0-3 Ps. The tenant had option to renew provided he offered the max ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Thika Controller. In the appeal before the Supreme Court, it was held that the Thika Controller, in spite of the deletion of Section 29, had still the jurisdiction to proceed with the suit transferred to him. On the question regarding the requirement of six months' notice as provided for in the lease deed, the Supreme Court held that the appellant-tenant was entitled to six months' notice as required by the proviso to clause 7 of the lease deed and as no such notice was issued by the plaintiff-lessor, the suit for eviction could not succeed. The learned Judge, Shelat, J., who spoke for the Court, ruled (at p. 65) (of And WR) = (at p.1422 of AIR) thus :--- It is well settled that statutory tenancy normally arises when a tenant under a lease holds over, that is he remains in possession after the expiry or determination of the contractual tenancy. A statutory tenancy therefore comes into existence when a contractual tenant retains possession after the contract has been determined. The right to hold over, that it is, the right of irremovability, thus is a right which comes into existence after the expiration of the lease and until the lease is terminated or expires by ef ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ut up that the proviso was added in clause 7 of the lease and that proviso lays down the condition of six months' notice ending with the expiry of the term clearly to enable the lessee to remove the structures, if need be, if the lease was not renewed or extended. The object of inserting such a condition being clear as aforesaid it would not be right to construe clause 7 and its proviso in the manner suggested by the respondents. 23. This decision is distinguishable on facts. The proviso to clause 7 of the lease deed itself provided that six months' notice should be given if the tenant held over after the expiry of the period of 10 years lease. Hence, there was admittedly a contract to the contrary even with regard to the tenancy created under Section 116 of the Act by the tenant holding over. 24. We shall now consider the decision of the Madras High Court in G.M. Ali v. M. Rosari Ammal, which supports the plea advanced by the respondent. In that case, the petitioner took on lease under a tenancy agreement Ex. P-1 dated November 24, 1954, premises No. 100, Broadway, Madras on rent and was let into possession thereof. It was agreed that the tenancy should be in accord ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... arat Chandra Banerjee, I L R (1905) Cal 123, it is immaterial to consider what the English law may be on the subject. We have to consider what the law in India, is. That law has been codified and is to be found in Section 116 of the Transfer of Property Act. The passage at page 762 from Mulla's Transfer of Property Act (Fifth-Edition) which was relied upon by the learned Judge, only relates to English Law. It reads : If there is no agreement fixing the terms of the new lease the implied tenancy is in English law subject to such of the terms of the old lease as are applicable to a yearly or monthly tenancy. The learned Judge's view that there was no new contract of tenancy created under Section 116 of the Act was contrary to the decision of the Federal Court in Kai Khshroo Banerjee Capadia v. Bal Jerbai Hirjibhoy Warden,: AIR 1949 Financial Corporation 124 which has been approved by the Supreme Court in Bhawanji v. Himatlal, [1972]2SCR890 . The learned Judge was also not correct in thinking that the mater is now settled beyond controversy by the Supreme Court in Manujendra Dutt v. P.P. Roy Choudhary, (1967) 1 Andh WR 61 :(AIR 1967 SC 419). We have already referred ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erminated or determined. The tenancy by holding over is not a tenancy which comes into existence on the violation of one of the parties. In order to bring or create a new tenancy into existence, there must be a bilateral Constitution. The principle underlying Section 116 is implied contract and the test of renewal is the consensus between the lessor and the lessee but not an option exercisable by either of the parties. It is the assent of the landlord for the tenant's continuing in possession, but not the acceptance of rent by itself, after the expiry of the term of lease that is the foundation for the new tenancy. The assent of the landlord is based on the acceptance of rent as such. The acceptance of rent as such by the landlord is considered to be a clear recognition of the tenancy right asserted by the lessee who offers the rent. But the mere tender of rent by the tenant without its acceptance on the part of the landlord would not, in any way, create the statutory tenancy by holding over. That apart, the animus of the tenant in tendering the rent also is material. Where the tenant tendered the rent as rent payable under the Rents Act like Bombay Rent Act, Calcutta Thika Ten ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he new lease, is on the party who sets up such plea. Where the original lease deed is silent with regard to the issuance, the quit notice to determine the new tenancy, the intention of the parties which can be gathered from the correspondence between and the conduct of parties, would be material. The term regarding collateral security and a stipulation to quit without notice as required by Section 106 of the Act, which are found in the original lease, would not be imported into the statutory new lease, created under Section 116 of the Act. 29. We may now briefly refer to the material terms of the original lease deed Ex. A-2. Though the lease was only for a period of two years from 14-7-41 on payment of a rent of ₹ 1450/- per year payable in 4 equal instalments, it specifically reserves a right to the lessee to renew the same for a further period of two years on the same terms. Ex. A-2 contains the following term or clause pertaining to the termination of the tenancy and delivery of possession. The lessee shall stop all work and the working at a factory, the premises, machinery, plants, fixtures, tools, etc., more fully described in the schedule hereunder written, i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat there was no agreement to the contrary for the determination of the statutory tenancy except in accordance with the provisions of Section 116 read with Section 106 of the Act. The lessor company was conscious of the fact that the statutory tenancy created by the tenant holding over can only be terminated by the issuance of Ex. A-1. We may add that Ex. A.-1 reveals that 6 months' time was originally granted to the lessee for vacating the premises but subsequently, the words 6 months' were scored out and the words '15 days' written with pen. Irrespective of the fact whether it was 6 months or 15 days, no notice to quit need be given if what the lessor company now sought to contend were really agreed upon or intended between the parties. 30. The other contingency for the attraction of the clause dispensing with quit notice is the termination of the lease as herein provided after. The lessee was given an option in the subsequent clause to terminate the lease at any time before the expiry of the period of lease by issuing a written notice to the lessor company in case of acts of God or State or if the scheduled property becomes incapable of being used as a facto ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Ranjit Singh,: [1968]2SCR548 : 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. There is no estoppel by waiter. Waiver is distinct and different from estoppel, waiver is contractual whereas estoppel is governed by Section 115 of the Evidence Act. Estoppel is not a cause of action whereas waiver may constitute a cause of action. Waiver is an agreement to release or not to assert a right whereas estoppel is a rule of evidence which comes into operation if a statement as to the existence of a fact has been made by a party or his authorised agent to another party or some one on his behalf, with the object or intention, that the other party should act upon the faith of the statement and the other party does act upon the faith of the statement. Where an agent with authority to make an agreement on behalf of his principal agrees to waive his principal's right, the principal will be bound. The distinction between estoppel and waiver had been succinctly dawn by the Judicial ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the property leased, subsequently accepts the rent tendered by the lessee it must beheld that the notice to quit has been waived. Hence, waiver of notice to quit is not a unilateral act depending upon the choice or election of one of the parties but it is bilateral agreement of both the parties. 34. The foundation for the plea of waiver raised by the respondent-plaintiff is the failure or omission on the part of the defendant-lessee to reply to the quit notice Ex. A-1 dated 1-10-1966 giving 15 days time to vacate the premises and his raising the plea for the first time by way of amendment of the written statement on 29-7-1969 by which time the trial was over and the case was posted for arguments. Admittedly there is no waiver in express terms. The waiver is claimed to be an implied one on the facts referred to above. 35. In view of our answer to question No. 1 the plaintiff-respondent cannot successfully eject the defendant-lessee unless it establishes that it has issued a valid quit notice giving six months' time as contemplated by Section 106 of the Act, or that the defendant has waived its right for the issuance of such quit notice. The onus of proving that the defend ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the Rewa State Companies Act, 1935. It is apt in this context to refer to the decision of the Privy Council in Surajmull Nagoremull v. Triton Insurance Co. Ltd., wherein an omission to mention Section 7(1) of the Indian Stamp Act (II of 1899) in the judgments under appeal was sought to be raised as a bar. Lord Summer said :-- The suggestion may be at once dismissed that it is too late now to raise the section as an answer to the claim. No court can enforce as valid that which competent enactments have declared shall not be valid, nor is obedience to such an enactment a thing from which a court can be dispensed by the consent of the parties, or by a failure to plead or to argue the point at the outset. See also Shiba Prasad Singh v. Sirish Chandra Nandi,. The decision of the Supreme Court in J.C. Chatterjee v. S.K. Tandon, [1973]1SCR850 is an authority for the proposition that in spite of the failure to deny the plaint allegations as to termination of tenancy by a valid notice is a suit for ejectment of a tenant and the absence of any issue demanded thereon by the defendant the point as to termination of tenancy can be raised in second appeal and decided by the High Court ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in the manner prescribed by Section 111(b) read with Section 106 of the Act that determinates the tenancy. In other words, the tenancy stands determined on the expiration of the period of tenancy if the requisite notice is duly issued and served on the other partly. As ruled by the Supreme Court in Calcutta Credit Corporation v. Happy Homes Ltd.,: [1968]2SCR20 : Even if the party served with the notice does not assent therein, the notice takes effect. If the notice is defective it does not operate to terminate the tenancy by force of the statute. But a tenancy is founded in contract, and it is always open to the parties thereto to agree that the tenancy shall be determined otherwise than by notice served in manner provided by Section 106 of the Transfer of Property Act, or by a notice of a duration shorter than the period provided by the Act. If the parties so agree, the tenancy will come to an end. This decision is an authority for the proposition that a notice given as required by Section 106 of the Act operates to terminate the tenancy irrespective of the assent of the party served with such notice and it is open to imprisonment to plead that the tenancy does not stand ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ents, the respondent cannot be permitted to raise successfully the plea of waiver. On the facts, we are of the firm view that no prejudice has been caused to the plaintiff by the belated amendment of the written statement permitting the defendant to raise the question relating to the validity f the quit notice. When asked by the Court, the learned counsel Mr. Ramachandra Rao was unable to show any prejudice that has been caused to the respondent-plaintiff by this belated plea and he only requested this Court to remand the case to the lower court on this account. We do not find any merit in this submission, as there is no justification for remanding the case. As pointed out earlier the inordinate delay of 8 years on the part of the defendant lessee in raising the plea of waiver and protracted proceedings between the parties since several years which are fund in the case of Gauri Shankar v. Hindustan Trust Ltd., AIR1972SC2091 are not found in the case on hand for us to hold that the plaintiff herein has been prejudiced. The plaintiff herein could have issued a valid notice giving 6 months time to the defendant-lessee and obtained possession of the suit premises thereafter. But instea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eld that where a party accepts costs awarded under an order of Court, he cannot subsequently object to the validity or jurisdiction of that order as, but for such conditional order, no costs were payable at that time. See also Tinkler v. Hilder, (1849) 4 Ex. 187. In Prayag Dossjee v. Venkata Perumal, at 411, Pandalai, J, observed: ... in every particular case it must be ascertained whether the costs or other benefit accepted by a party is in fact and substance a part of the entire order of which after accepting the part favourable to him, a party puts it beyond his power to attack the rest. It is sufficient if by their nature or intention the Court regarded them as an entire whole, giving a benefit in one respect to one party and in another to his opponent, in other words such, that the benefit to one would not have been granted but for the corresponding benefit granted to the other I am of opinion that the Judge would not have granted the costs unless he allowed the amendment and therefore the order comes within the rule. The objection that the advocate has no right to receive the costs award by the court without the authority of the party and his act would not bin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cannot succeed unless it is established that the defendant was fully conscious from the beginning of the fact that a valid quit notice as contemplated by Section 106 of the Act was necessary in spite of the stipulation in the original agreement with regard to the dispensation of such notice. From the facts of the case, it admits of no doubt that the law on the subject is not settled. The defendant might have been under a wrong impression that no such notice was needed. In any event we are inclined to agree with Mr. N. Bapiraju that the defendant and its counsel might, in all probability, have thought it doubtful whether such notice was necessary. However, on a close reading of the facts and circumstances, we are of opinion that there was no intentional or conscious omission on the part of the defendant to raise the point relating to the validity of the quit notice in the original written statement or to reply to Ex. A-1. 42. We shall now turn to the decisions relied upon by Mr. Ramachandra Rao in support of his plea that the defendant has waived the requirement of a valid notice under Section 106 of the Act. The decisions in Komarawami, v. Venkataramana Rao, AIR 1956 Mad 105 and ..... X X X X Extracts X X X X X X X X Extracts X X X X
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