TAYABALI JAFERBHAI TANKIWALA versus M/S. ASHA & CO. AND ANR.

Citation: [1970] 2 S.C.R. 554 · Decided: 24-09-1969 · Supreme Court of India · Bench: J.C. SHAH · Disposal: Dismissed

Cited by 1 judgment(s) · see the full citation network in Lexace

Judgment (excerpt)

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 accept-
ing rent-Second notice of tennination treating the tenancy as subsisting--
Suit for ejectment treating the second notice as non est-Transfer of Pro-
perty 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] 
-. 
A 
B 
c 
D 
E 
F 
G 
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 habi-
tual defaulter and 

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