P L D 1961 (W (PLP)

2. The facts which constitute the background of these appeals are that Muhammad Siddiq filed two suits being Suits Nos. 909 of 1956 and 267 of 1958‑one for an injunction against his tenant Ismail restraining him from dismantling and reconstructing the roof of the demised premises, and the other for ejectment from the premises. The allegations in the first suit were that the tenant had dismantled a part of the roof of the top floor and was proceed ing to dismantle the rest of it with the intention of reconstructing it. The landlord had also applied to the Rent Controller for a certificate to eject the tenant on the ground that he had damaged the demised premises and succeeded in obtaining a certificate to that effect. He, therefore, claimed in the second suit that the tenant be ejected on the basis of the certificate. The suits were tried together and were dismissed by the IV Sub‑Judge, First Class, Karachi, on the 13th of February 1959. The landlord preferred appeals against this judgment, which were accepted by Additional District Judge, Karachi, with costs throughout on the 22nd of December 1959. The tenant Ismail has now preferred second appeals to this Court.

3. Counsel for the appellant has supported the appeals by arguing, firstly, that the tenant was entitled under section 108 (m) of the Transfer of Property Act to dismantle and reconstruct the roof; secondly, that the landlord had given a notice to quit, but had accepted rent after it relating to a period of time which is subsequent to the notice, vide receipts Exh. 4, 5 and 7 to 9, which amounted to a waiver of the notice to quit as well as a waiver of his objection that damage had been done to the demised premises. The first contention is obviously untenable. Clause (m) of section 108, Transfer of Property Act, is not applicable to the facts of this case. The second contention assumed some importance because the principles of law were not satisfactorily applied to the facts of the case. It is true that before the enforcement of Rent Restriction Act and emergence of statutory tenancy owing to them, acceptance of rent after notice to quit relating to the period following the notice usually amounted to a waiver of the notice and revival of contractual tenancy. The reason was that the right of the landlord to recover rent after the termination of least almost always ceased to exist. If the landlord accepted rent it, such circumstances, his conduct led to the conclusion that he was prepared to again accept the ex‑lessee to occupy the premises as a lessee. The situation has changed materially after the introduction of Rent Restriction Act, because the liability of the tenant to pay rent subsists under them after the contractual relationship of landlord and tenant is terminated by a notice to quit, If the landlord accepts rent after giving notice to quit during the subsistence of statutory tenancy, then he may be mere accepting what is due to him without meaning to waive the notice, to quit or to agree to accept the tenant as a contractual tenant, o. with a view to give up any other right. The principle has beer, explained in Blundell's Rent Restriction Guide (4th Edn.) a9 p. 138, as follows:‑‑ "Of course if the parties have by agreement replaced the tenancy which had terminated by a new contractual tenancy that also would have to be brought to an end before the Court could make an order, but the common law rules for inferring a new tenancy are greatly modified in the case of a controlled house a new contractual tenancy will only be inferred when the facts truly indicate an intention by both parties to make a new tenancy and mere acceptance of rent is clearly insufficient." This principle has been explained in Baldeodas v. G. P. Sonavalla (A I R 1941 Bom. 385) and Pulin Behary v. Miss Lila Dey (A I R 1957 Cal. 627). The learned Judges of the Bombay High Court have explained it as follows:‑ " .as soon as the notice to quit expires and the tenant continues in possession, the position is not what it used to be under section 116 of the Transfer of Property Act, namely that he becomes a trespasser, but he becomes a statutory tenant whom the landlord cannot eject so long as the tenant carried out the conditions laid down in section 9 of Act (VII) of 1944. If the landlord accepts rent as he did in this case he does it with the knowledge that although he has given a notice to quit, in law he cannot get possession from the tenant, and it is difficult to see how one can possibly speak of the land lord assenting to the tenant's possession when that possession is forced upon him by the law of the land his accepting the rent is attributable either to the fact in law the tenant has become a statutory tenant and he cannot get possession and he must accept rent from the statutory tenant, or to his agreeing to a new tenancy coming into existence and the tenant becoming his tenant under the new tenancy." The learned Judges of the Calcutta High Court have also explained the position of law similarly.

4. The above views relate only to revival of contractual tenancy by waiver, therefore, it is noteworthy as a more general proposition applicable to the two aspects of waiver alleged in this case that payment and acceptance of rent during the subsistence of statutory tenancy do not necessarily constitute contractual per formance ; therefore, if they are to be used for proving intention, of one or the other party, apart from the exercise of rights and discharge of obligations arising from statutory tenancy, then something more than mere payment and acceptance of rent must be established. For instance, it should be shown that there was an intention to make a new contract or to give up some right.

5. In the present case, rent was accepted by the landlord under protest, and his counsel has emphasized this fact without relying on his client's right under statutory tenancy. His emphasis detracts thought from the correct line of reasoning, because it is not open to a recipient of money which is paid to him for a declared purpose to accept it and appropriate it for a different purpose. When money was paid to the landlord as rent, it remain ed payment of rent in spite of his protest. What essentially helps the landlord is not 'essentially his protest, but his right to receive rent owing to the subsistence of statutory tenancy despite his notice to quit.

6. He first instituted the suit for injunction on the 13th of April 1956. After that he obtained a certificate on the 18th of September 1956 from the Rent Controller to eject the tenant. Then he gave the notice to quit on the 27th of October 1956, and instituted the suit for ejectment on the 11th of January 1957. The mere fact that he accepted rent according to counsel for the appel lant on five occasions between the 14th of November 1956 and the 5th of January 1959 (Exhs. 9 and 4) does not show that he at any time relaxed his efforts either to obtain the injunction sought by him or to recover possession. The tenant was no doubt either relying on the chances of creating waiver or protecting himself against ejectment when he paid rent five times during the period of about two years, but the landlord could accept rent so long as the tenant was in occupation of the premises as a statutory tenant because that was his due. Each time rent was paid to him he accepted it under protest, noted in writing, which did not mean that he was not accepting the money as rent but can be taken owing to the protest to indicate his mind that he was not willing to create contractual relationship. The acceptance of rent, in these circumstances could not amount to a waiver of notice to quit, much less could it amount to a waiver of the objection that damage was being done by the tenant to his property, because firstly the landlord had already instituted a suit in April 1956 and obtained an interim injunction, and secondly, because rent was his statutory due. In these circumstances, the objection relating to damage to the demised property and the relief of injunction were valid and sustainable even if contractual tenancy had not been determined. There is no relation in these circumstances between the acceptance of rent by the landlord and his objection to the conduct of the tenant that be was dismantling and recons tructing the roof. The argument advanced by counsel for tenant on the basis of Amulya Charan v. Calcutta Corporation (A I R 1950 Cal. 256) that the breach of a covenant of lease not to erect any structure on the land is not a continuing breach, and that it can be waived by acceptance of rent, does not help the tenant, because the tenant was liable to pay rent and the landlord `was entitled to accept it until statutory tenancy subsisted.

7. Counsel for the tenant half‑heartedly tried to advance the argument that statutory tenancy terminates immediately on the issue of a certificate by the Rent Controller to eject the tenant. This is obviously not correct. The certificate merely entitles the landlord to sue the tenant for ejectment and the suit may succeed or fail.

8. Counsel for the tenant has referred to B. N. Railway Co. v. Bal Mukunda (A I R 1923 Cal. 663) and Mahadeo Prasad v. Sulekha Sarkar (A I R 1954 Cal. 404), both of which judgments relate to the rights and obligations of lessors and lessees under the Transfer of Property Act. They are, therefore, not relevant for the present purposes. Counsel has also referred to Panchanan v. Haridas (A I R 1954 Cal. 460), but that judgment does not help him. The learned Judges have observed in it as follows:‑ "Waiver is contractual; it is an agreement not to assert a right ..Where, however, such payment of rent is made to ensure protection against ejectment, as under any rent control law, and is accepted by the landlord, mere acceptance of rent does not lead to an inference that the parties intend to re‑establish the relationship of landlord and tenant. For the tenant to succeed, such acceptance must be shown aliunde, to be attributable only to the landlord's assenting to a new tenancy coming into existence".

9. The result is that the contentions raised by the appellant's counsel fail, and the appeals are dismissed with costs. K. B. A. Appeals dismissed.