In a recent judgment, the Delhi High Court, held that the mere acceptance of rent does not amount to waiver of notice to quit unless there is any other evidence to prove or establish that the landlord so intended.
The said ruling was delivered in the matter of Ashwani Kumar Mehra vs. Canara Bank, RFA No. 128 of 2018 decided on 28.08.2018.
Appellant has impugned the judgment of Trial Court dated 23.09.2017 wherein the suit for mesne profits has been dismissed for a property in NDSE, Part 1, New Delhi. The Appellant/landlord had filed a suit for possession and mesne profit on the Original Side of Hon’ble High Court at New Delhi, and during the pendency, the suit for possession was decreed in favour of the landlord under Order XII Rule 6 of CPC on 18.07.2011. Pursuant to the same, the Respondent/tenant had vacated the suit premises on 31.03.2013. The trial court has, in the impugned judgment, held that the tenant continued to pay rent after the termination of the tenancy and therefore it is a case of tenant effectively holding over, therefore for the period for which the tenant has stayed in the suit premises by paying rent, no mesne profit can be awarded. The Appellant has challenged the impugned order to decide the entitlement of claim of mesne profit from 01.09.2009 till 31.03.2013.
The Hon’ble High Court has, while considering whether a tenant who pays rent after termination of the tenancy is liable to pay mesne profit or not, held that if after termination of tenancy, the tenant tenders rent and the landlord accepts the same, then the landlord can still very well adjust the amount towards use and occupation charges. Reliance was placed on the decision of the Apex Court in Sarup Singh Gupta v. S. Jagdish Singh & Ors., (2006) 4 SCC 205, wherein it has been settled that even when a suit is pending and the rent is accepted, it cannot be said that by accepting the rent, the notice to quit is waived and that the lease has to be treated as subsisting. The fact remains that even after accepting the rent tendered, the landlord did file a suit for eviction and even while prosecuting the suit accepted the rent which was being paid to him by the tenant. It cannot be said that by accepting the rent, the landlord intended to waive the notice to quit and to treat the lease as subsisting. It was held that the trial court had committed a clear illegality as in even of termination of lease, the practice followed by courts is to permit the landlord to receive each month by way of compensation for the use and occupation of the premises, an amount equal to the monthly rent payable to the tenant. It cannot, therefore, be said that mere acceptance of rent amounts to waiver of notice to quit unless there be any other evidence to prove or establish that the landlord so intended.