Receipt Of Rent By Landlord After Receipt Of Quit Notice By Tenant Does Not Amount To Waiver Of Quit Notice: Kerala High Court

Section 113 of the Transfer of Property Act says a quit notice is waived with the tenant's consent, by any act of the landlord showing an intention to treat the lease as subsisting.

The plaintiff was the landlord who filed a suit for eviction of the defendant, after terminating the tenancy by issuing notice on 29.06.2015. The suit was decreed and the trial court directed the defendant to surrender vacant possession of the property and granted Rs. 3,000/- per month as occupation charges till date of surrender. An appeal against this order confirmed the findings of the trial court and dismissed the suit.

It was submitted that as the defendant had been continuing in occupation as a tenant, Section 113 of the Transfer of Property Act would apply to this case. Additionally, the plaintiff had received rent after issuing quit notice, waived the notice earlier issued and therefore a fresh notice is necessary to succeed the Suit.

The court referred to the decision in Calcutta Credit Corporation Ltd. & anr. v. Happy Homes (P) Ltd., in which the bench stated that “when there is waiver of notice within the meaning of Section 113 of the T.P Act, the old tenancy is not resurrected and on issuance of quit notice the lease is determined, then by consent of parties all what happens is creation of new tenancy. Therefore, after issuance of quit notice, the tenancy can be terminated and thereafter the status of the tenant is that of a tenant at sufferance, that is, a trespasser”.

As such, Justice Badharudeen clarified that “in view of the settled law, the status of the defendant herein is that of a tenant at sufferance…(and) the quit notice would not waive, and the status of the tenant is a `tenant at sufferance' and not beyond that”.

Therefore, the court stated that the defendant was bound to vacate the building. Additionally, the court held that “mere receipt of rent by the landlord, after receipt of quit notice by the tenant, would not be tantamount to waiver of the quit notice, contemplated under Section 113 of the T.P Act”.

As such, the court dismissed the petition.

Counsel for Petitioner: Advocates Liji Vadakedom, Rexy Thomas and Rajeev George.

Counsel for Respondent: Advocates P Samsudin, M Anuroop, SK Sreelakshmy

Citation: 2024 LiveLaw Ker (9)

Case Title: Sameerali v. Muhammed

Case Number: RSA No. 817 of 2019

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