TMI Blog1999 (5) TMI 626X X X X Extracts X X X X X X X X Extracts X X X X ..... he petitioner was protected under the Delhi Rent Control Act. That protection, ceased to be available to the tenant with effect from 1.12.1998. This was because Section 3(c) was inserted in the Delhi Rent Control Act, and the Rent Act was no longer applicable. The relationship between the parties came to be governed solely by the Transfer of Property Act, 1882. It is also common case of the parties that notice to quit dated 16.8.1991 was served by the landlord upon the tenant whereafter on 12.7.1991, Suit No. 306 of 1991 for ejectment of the tenant (petitioner herein) was filed. Summons in the suit were served and after the defendant-tenant had entered appearance, that suit for ejectment was dismissed for default of plaintiff's appearance on 23.9.1993 by the Court of Ms. Mamta Singla, Sub-Judge, 1st Class, Delhi. 4. Instead of applying for restoration under Order 9, Rule 9, CPC, the plaintiff-landlords opted to take another route. They served a fresh notice to quit dated 6.8.1996 and another dated 15.10.1996 upon the tenant. Thereafter on 18.11.1996 a fresh suit for ejectment was filed and was registered as Suit No. 373 of 1996. In this suit, the defendant-tenant (petitioner ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... submission and the admitted facts as narrated earlier, the learned Counsel for the petitioner contends that the proposition of law formulated by him and quoted above should be decided and answered in the negative. 8. As the respondent had filed a caveat, both the parties were heard at length in this Revision Petition and both of them have also filed written submissions. However, in view of the fact that no stay of proceedings in the Court below was granted, the suit for ejectment was proceeded with, and I am told that by judgment dated 11.3.1999 an application under Order 12, Rule 6 dated 24.2.1998 was allowed and the suit for ejectment was decreed, against which FAO 172 of 1999 is pending admission before this Court. 9. I have, however, in this Revision Petition to consider only the legality of the order dated 27.11.1998 by which the learned ADJ dismissed the application under Order 7, Rule 11, CPC and held that the suit was not barred under Rule 9 of Order 9, CPC. 10. Coming first to the submission of the petitioner that the lease was orally renewed for 60 years with effect from 1.4.1985 and also became a yearly lease, this submission does not seem to be tenable, becau ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . Section 107 gives indication how leases are to be made while Section 108 gives the rights and liabilities of the lessor and lessee. Section 109 deals with the rights of lessor's transferee. Section 110 'deals with exclusion of day on which term commences, duration of lease for a year and option to determine lease; while Section 111 deals with determination of lease. Section 112 deals with waiver of forfeiture while Section 113 deals with waiver of notice to quit. Section 114 deals with relief against forfeiture for non-payment of rent while Section 114-A deals with relief against forfeiture in certain other cases. Section 115 deals with effect of surrender and forfeiture on under leases while Section 116 deals with effect of holding over. Section 117 deals with exemption of leases for agricultural purposes. 15. To decide the question whether a dismissal of a previous suit for ejectment would bar a later suit based on a fresh notice to quit, it is necessary to go into certain fundamentals of lessor-lessee or landlord-tenant relationship. This is so because the legal status of the tenant and the rights that flow therefrom vary with the kind of tenancy. It is one, during ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ni v. Manekji Edulji Mistry, : If a lessee remains in possession after determination of the term, he is under the common law a tenant on sufferance. The expression holding over is used in the sense of retaining possession. If a tenant after the termination of the lease is in possession without the consent of the landlord, he is a tenant by sufferance. It is only where a tenant will continue in possession with the consent of the landlord that he can be called a tenant holding over or a tenant at will. Satish Chand Makhan v. Govardhan Das Eyas, : We have no doubt in our mind that the defendants were tenants holding over under Section 116 of the Transfer of Property Act and therefore it was necessary for the plaintiffs to serve a notice under Section 106 of the Act. Where a person holds over under an unregistered lease and continues in possession by paying the monthly rent, the holding over must be held as a tenancy from month-to-month: Mulla's Transfer of Property Act, 5th Edn., p. 762. It was definitely wrong on the part of the High Court to have proceeded on the-assumption that the lease stood determined by efflux of time under Section 111(a) of the Transfer of Pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o found. We are of the opinion that the High Court was right. 7. It was submitted before the High Court that this was not a case of continuing of old tenancy for a period of five years but in view of the clear provisions of Section 107 which we have noted hereinbefore and in the absence of a registered instrument, it must be held that it was holding over and not continuation of old tenancy for a further period of five years. That would be the harmonious construction of Section 107 read with Section 116 in the facts of this case. We are of the opinion that the High Court was right that the tenancy was automatically determined on the expiry of ten years which was stipulated in Ex. 4. Thereafter the lessee continued to hold the property and the lessor accepted the rent. The lease was, therefore, renewed from month-to-month because it was not the case of any party that it was for agricultural purposes. Vasantkumar Radhakisan Vora v. The Board of Trustees of the Port of Bombay, . Undoubtedly 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 statu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... andlord and tenant is not established until the rent was paid and accepted. The assent of the landlord to the continuance of the tenancy after the determination of the tenancy would create a new tenancy. The possession of a tenant who has ceased to be a tenant is protected by law. Although he may not have a right to continue in possession after the termination of the tenancy, his possession is juridical. 19. This being the law laid down, I now proceed to examine its application. Taking first the case of a lease for a fixed period. Section 111 provides for the various contingencies which determine a lease. Of relevance here, are Clauses (a) and (h). These read as under: (a) by efflux of the time limited thereby; (b) to (g)......... (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. 20. So long as the lease subsists, the tenant is entitled to the estate and all rights that flow therefrom. The point under consideration is the position thereafter. 21. A lessee who continues in possession beyond the expiry of the term by the efflux of time, could either be there me ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n a rare instance of it not exceeding one year and reserving less than a yearly rent. As the words 'from month-to-month' themselves, indicate, it is a new or a separate lease which commences every month and expires at the end of the particular month, only to be renewed, if not terminated, for yet another month. 24. Section 116 of the T.P. Act says : ... ... renewed from year-to-year, or from month-to-month, according to the purpose for which the property is leased. 25. Plain meaning of the words 'from month-to-month' apart, the use of the word 'renewed' in the statute, further leads to an irresistible conclusion that for every month it is a separate tenancy vis-a-vis that which was operating in the preceding month, otherwise instead of 'renewed', the Legislature would have used the word 'extended'. 26. In DDA v. Durga Chand, AIR 1973 2609, the Supreme Court said : A renewal of lease is really the grant of a fresh lease. It is called a renewal simply because it postulates the existence of a prior lease which generally provides for renewals as of right. In all other respects, it is really a fresh lease. And in Provash Ch ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of upgrading the tenant's legal status from one at sufferance, to one, from month-to-month. 30. The difference between a tenancy for a fixed term and a tenancy from month-to-month can be illustrated by likening the former to a long steel rod where the length of the same represents the duration of the lease, while the latter can be likened to a chain with each link representing a tenancy month. It moves from link-to-link (renewed from month-to-month), until the process is interrupted by a notice to quit, in which case the next link does not take hold, and for the period thereafter the tenancy partakes the character of one at sufferance. If there is waiver of the notice to quit or an assent to continuation, the tenancy is relegated to from month-to-month character, the process is resumed, and the next link takes hold and after it the next and so on. Once again the process is capable of being put an end to by service of a fresh notice to quit expiring with the next tenancy month. 31. Similarly, a tenant holding over with assent of the landlord after the efflux of time does so from month-to-month. To illustrate, what in the past was one long rod of specified length, is now a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y any other mode as provided by Section 111 having taken place, the next question arises is about the precise legal status of the occupant, called in legal parlance a tenant at sufferance. 37. The legal status in India of a tenant remaining in possession of the property after determination of the lease, was also explained by Bhagwati, J. (as his Lordship then was), in Nanalal Girdharlal v. Gulamnabi Jamalbhai Motorwala, . Speaking for the Full Bench, he said :: But we do not think that a tenant in possession of the property after determination of the lease can be equated to a trespasser. The law in India on this is different from that in England.......... When a tenant remains in possession of the property-after determination of the lease in India, he undoubtedly becomes a tenant at sufferance but if the landlord accepts rent from him or otherwise assents to his continuing in possession, the tenancy is, in the absence of an agreement to the contrary, renewed from year-to-year or month-to-month according the purpose for which the property is leased vide Section 116 of the Transfer of Property Act. Even if the landlord does not assent to the tenant continuing in possession ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ty of the lessee to restore possession to the lessor. In Surajmal v. Rampearaylal, AIR 1968 Patna 8, it was said : ...... But Clause (q) of Section 108 lays down that on the determination, the lessee is bound to put the lessor in vacant possession of the property. Having regard to these two provisions, it is abundantly clear that when the term of a lease has expired, the lessee can determine the lease by fulfillling his obligation of putting the lessor into possession of the property. But if the lessee does not put the lessor into possession of the property, and on the contrary, remains in possession thereof, then he does not become a trespasser in relation to the property, but his status is that of a tenant on sufferance. 40. Section 108(q) thus ensures that a lessee continues to be liable to the lessor till possession has been actually restored to the lessor and a semblance of relationship subsists till that contingency takes place. His continuing in possession is expressive of his continuing stand that the tenancy, in whatever form, continues. It is said that he does not hold it adversely to the landlord only till he has unequivocally renounced his status as a tenant and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a tenant from month-to-month. Similar, i.e. from month-to-month, is the status of a lessee who comes into possession under a lease for a period exceeding one year but unregistered. He holds it not as a lessee for a fixed term, but as one from month-to-month or year-to-year depending on the purpose of the lease. If upon a tenant from month-to-month (or year-to-year) and in either of the aforesaid two contingencies, a notice to quit is served, then on the expiry of the period, his status becomes of a tenant at sufferance. Waiver of that notice, or assent in any form to continuation restores to him his status as a tenant from month-to-month, but capable, of once again being terminated with the expiry of any ensuing tenancy month. 45. These being the settled legal propositions with regard to lessor-lessee relationships and their termination, the point to be considered next, is the scope of a suit for ejectment. When upon determination of the lease, the lessee or the tenant fails in his duty to restore possession of the tenancy premises to the lessor or the landlord, the suit by the landlord for recovery thereof has been called a Suit for Ejectment. This is the very type of a suit wh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erently, in the former case there is no dispute either about title or about the permissive nature of occupation whereas in the latter case the dispute is about title and there is no question of the possession being permissive. Here it is hostile. Even otherwise, a plea or a defense as a tenant is a pleading of a permissive title. It carries with it an admission that someone else, be it the plaintiff or be it another, is the one carrying a superior title and in whom vests the reversionary rights known in common parlance as ownership. On the other hand a plea asserting a hostile title, is one in direct contradiction. 50. In a suit for ejectment, all that the Court is required to examine is whether on a calender date representing the expiration of a particular tenancy month, the defendant-tenant's status became one of a 'tenant at sufferance' or it continued as one 'from month-to-month.' There is really nothing else to be tried in such a suit. A suit of this variety could in most cases be decided at the first hearing itself either on the pleadings and documents as was done by a Division Bench of this Court in Surjit Sachdeva v. Kazakhstan Investment Services Pvt ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nues in possession and remains a tenant? (ii) If he is to remain as a tenant, is he to remain a tenant from month-to-month (which he was prior to service of quit notice) or is he to become one for a fixed term, or one in perpetuity? 54. On a plain appreciation, the contention of the petitioner-tenant is without merit. He does not become an owner in freehold, nor does he become a tenant in perpetuity. He remains a tenant, no longer one at sufferance, but upgraded or restored to one from month-to-month. 55. To further test the argument on principle, let us assume a suit for ejectment is dismissed on merits. Since it is not a Title Suit for Possession, but only a suit for ejectment, the dismissal could only be on a ground that either the lease has not expired by efflux of time, or a tenancy from month-to-month has not been terminated by a valid notice to quit, or the notice served has by a subsequent act of the landlord been waived, and therefore the lease subsists till a point of time subsequent to the date of judgment with the result that the plaintiff lessor has no right of ejectment. Any other finding would render the suit 'not maintainable' and the plaint ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the suit was termination of tenancy by service of a notice to quit and thereby preventing of an automatic renewal at the end of the month, the dismissal of the suit cannot put it any better and ensure that the renewal for the month ensuing did take place. It operates, at best, as a waiver of the notice to quit, or assent to holding over, but no more. The subject matter of the suit, or the cause of action, is the expiration of the tenancy at he expiry of a particular tenancy month. 60. Consequent to the dismissal of the suit all that happens is that the notice to quit which had converted the status of the tenant from month-to-month to a tenant at sufferance, stands restored to a month-to-month tenant. The position would be equivalent to the landlord granting an assent to the continuance of the tenancy, in which event unless there is a registered document executed, it takes effect as one from month-to-month. 61. In my opinion the words or otherwise assents to his continuing in possession in Section 116 are sufficiently wide so as to include the allowing of a suit to be dismissed for default or abandoning a suit for ejectment under Rule 1 of Order 23 and therefore will have ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t operate as a registered instrument conveying interest in immovable property, either as an owner or as a tenant in perpetuity. 66. In any case, if the case is one where the origin of the possession does not lie in a tenancy but in a trespass and questions of title are involved, a suit for mere ejectment would not be maintainable and what would be required is a title suit for possession after payment of full Court fees. 67. In Manohar Lull v. Narain Dass, , '31 G.C. Jain, J. held : 29 Sub-rule (4) of Rule 1 of Order 23, CPC - Provides that where the plaintiff withdraws from a suit without the permission of the Court under Sub-rule (3) he would be barred from bringing a fresh suit in respect of same subject matter. The term 'subject matter' means plaintiff's cause of action for a suit. 30 To claim eviction under Clause (k), as observed earlier, the landlord, inter alia, was required to prove that the tenant had not stopped the breach of the condition even after the service of the notice on him by the landlord. In other words, one of the essential facts required to be proved in such a case is the service to the notice on the tenant requiring him to sto ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rty Act so as to give him a new cause of action to file the second suit. Obviously the previous notice would not and could not give him a fresh cause of action for the second suit after the previous suit filed on the basis of that notice had been dismissed. It is not possible to accept the contention of the learned Counsel for the plaintiff-respondent that since the relationship of landlord and tenant had been put an end to by means of a notice, dated 24.8.1964, the same cannot be restored even after the previous suit was dismissed by this Court on 6.3.1970. After the dismissal of that suit the defendant was very much a tenant of this house in spite of the unsuccessful attempt made by the plaintiff to put an end to this relationship of landlord and tenant by means of his notice dated 24.8.1964. A fresh notice under Section 106 of the Transfer of Property act was clearly required before the second suit for ejectment could succeed. That was not admittedly served on the defendant. Hence the present suit was also liable to fail. 72. In Makhan Lal v. Mst. Chandravati and Ors., , another learned Single Judge of the Allahabad High Court relying upon the aforesaid decision in Shakir Hu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by-side operation of these two (viz : T.P. Act and the Rent Act) and other statutes, did not cause results which the Legislature could not have intended, or were otherwise leading to absurdities and injustice. 76. For instance, under Section 116 of the T.P. Act acceptance of rent after determination of the lease, had the effect of bringing in force a tenancy from month-to-month, but not so where the Rent Act gave protection to the tenant from eviction. See Bhagwanji Lakhamshi v. Himatlal Jamnadas Dani, . Agreements for periodic rent-revision or escalation were also unenforceable. Acts of assignment, subletting or otherwise parting with possession, was another sphere, where operation of Rent Acts caused a stricter construction to be adopted. Similarly the concept of 'waiver' in landlord-tenant relationship was greatly narrowed down. Operation of Clause (q) of Section 108 of the T.P. Act, is another such instance. In Banarsi Dass v. Faquir Chand, : Counsel has then referred to Section 108(q) of the Transfer of Property Act which enjoins on the tenant a duty to hand over possession of the leased premises to the landlord on the expiry of the period to the lease. The prov ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ond suit was based were identical to those in the previous suit. It was not a case of landlord-tenant relationship and more so of one where the lease stands renewed from month-to-month wherefore every month's renewal consequent to absence of termination constitutes a fresh cause of action. 81. Keeping in view the fundamentals of the landlord-tenant relationship and the position as emerges after termination and the fact that termination can be waived by an act of the landlord, it is clear that abandoning of suit for ejectment or allowing such suit to be dismissed in default tantamounts to waiver within the meaning of which the abandoning or allowing of a suit to be dismissed in default tantamount to 'waiver' within the meaning of Section 113 of the Transfer of Property Act or assigned within the meaning of Section 116, thus restoring to the tenant a status of from month-to-month instead of one at sufferance. In any case, the cause of action is termination at the expiry of a particular tenancy month and if the second suit is not for that particular month, but for a subsequent month, it is not the same cause of action. 82. Although the matter is clear on principle, ..... X X X X Extracts X X X X X X X X Extracts X X X X
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