TAYABALI JAFERBHAI TANKIWALA v. M/S. ASHA & CO. AND ANR.
Citation: [1970] 2 S.C.R. 554; 1969 INSC 257
Court: Supreme Court of India
Bench: J.C. SHAH , V. RAMASWAMI, A.N. GROVER
Judgment date:
Case summary
1969 INSC 257. Supreme Court of India judgment dated 1969-09-24. TAYABALI JAFERBHAI TANKIWALA v. M/S. ASHA & CO. AND ANR. Read the judgment and case details...
Judgment text
556 SUPREME COURT REPORTS [1970] 2 S. C. R. 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 accept-ing 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 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 I> 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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