JUDGMENT R. H. Zaidi, J.
1. This is defendant's revision under Section 25 of the Provincial Small Cause Court Act. which arose out of S.C.C. Suit No. 20 of 1995 and is directed against the Judgment and decree passed by Small Cause Court, Lucknow dated 27th April, 1996.
2. Plaintiff respondent filed the said suit for ejectment of the applicant from the building in question and for recovery of rent and damages pleading that she was the owner and landlady of building No. A-3 Niralanagar, Lucknow, for short building in dispute, that the provisions of U. P. Act No. 13 of 1972. for short the Act. had no application to the said building, that a notice of termination of tenancy under Section 106 of the Transfer of Property Act dated 19.6.95 was served upon the defendant-applicant terminating its tenancy which was served upon the defendant-applicant on 24.6.95, that by means of said notice the defend ant-applicant was called upon to vacate the building and to deliver possession to the plaintiff respondent on 1.8.95. In spite of service of notice, the defend ant-applicant did not vacate the building in dispute and continued in possession of the same, therefore, the defendant was liable to pay damages with effect from 1.8.95 at the rate of Rs. 20,000 per month.
3. Defendant-applicant filed written statement admitting the relationship of landlord and tenant between the parties and the rate of rent as claimed by the plaintiff-respondent. It was, however, pleaded that the provisions of the Act were applicable to the building in dispute, that the notice dated 19.8.95 was Illegal which did not terminate the tenancy of the defendant, that Supreme Court fixed rate of rent at Rs. 8.000 per month in Civil Appeal No. 3919 of 1994 decided on 25.4.94, therefore, the plaintiff-respondent cannot claim damages more than the rent fixed by the Supreme Court, that the notice of termination of tenancy stood waived as rent after termination of tenancy was accepted by the plaintiff-respondent for the period 19.7.95 to 31.7.95 and the suit was not legally maintainable and liable to be dismissed.
4. Parties produced oral and documentary evidence in support of their cases. The trial court after hearing the parties and perusing the evidence on the record recorded findings on the relevant issues in favour of the plaintiff-respondent. It was held that provisions of the Act were applicable to the building in question, that the notice of termination of tenancy was valid and the said notice was not waived and that plaintiff was entitled to the damages at the rate of Rs. 8,000 per month. Having recorded the aforesaid findings, the trial court decreed the suit by its judgment and decree dated 26.9.94. Aggrieved by the judgment and decree passed by the Court below, as stated above, the defendant applicant filed the present revision.
5. Learned counsel appearing for the applicant vehemently urged that provisions of Section 2 (1) (g) of U. P. Act No. 5 of 1995 were invalid and ultra vires to the Constitution, that the notice served by the plaintiff respondent under Section 106 of the Transfer of Property Act. as the same did not give thirty days time to vacate, was bad and on the basis of the said notice, suit for ejectment could not be filed and decreed, that the plaintiff respondent accepted rent after service of notice of termination of tenancy on 5.7.95, therefore, the said notice stood waived and Sri D. S. Chauhan the holder of General Power of Attorney being an advocate had no right to appear as witness in the case, his statement was, therefore, inadmissible in evidence and was liable to be ignored.
6. On the other hand, learned counsel appearing for the plaintiff respondent supported the judgment and decree passed by the Court below. It was urged that provisions of U. P. Act No. 5 of 1995 were quite valid and intra vires to the Constitution, the notice of termination of tenancy was quite valid.
that the said notice in spite of acceptance of rent on 5.7.95 was not waived, that the statement of Sri D. S. Chauhan, advocate the holder of General Power of Attorney of the plaintiff respondent, was admissible in evidence and that the suit was rightly decreed by the Court below.
7. I have considered the submissions made by the learned counsel for the parties and perused the record. The Act was amended by U. P. Act No. 5 of 1995. By means of the said amendment, clause (g) of sub-section (1) of Section 2, which reads as under :
"2. Exemptions from operation of Act.-- (1) Nothing in this Act shall apply to the following, namely-
(g) any building, whose monthly rent exceeds two thousand rupees."
8. From the reading of the aforesaid provision, it is apparent that the buildings the rent of which was more than rupees two thousand per month were exempted from the operation of the Act. Clause (c) of Section 3 of Delhi Rent Control Act is analogous to clause (g) of sub-section (1} of Section 2 of the Act, which reads as under :
"3. Act not to apply to certain premises.--Nothing in this Act shall apply :
(a) .....
(b) .....
(c) to any premises, whether residential or not, whose monthly rent exceeds three thousand and five hundred rupees ; or
(d) ......"
The validity of clause (3) of Section 3 came to be considered by the Apex Court in D. C. Bhatia and others v. Union of India and another, (1995) 1 SCC 104. The Apex Court after considering all relevant aspects of the matter was pleased to rule that the said clause was not violative of Article 14 of the Constitution of India and was quite valid. It was held as under :
"In the facts of the case, we are not to hold that impugned Section 3 would violate Article 14 of the Constitution of India in any manner."
The Court below was, therefore, right in holding that the provisions of the Act were not applicable to the building in question, inasmuch as admittedly rate of rent of the building in question was Rs. 8,000 per month.
9. The validity of the notice served upon the defendant applicant under Section 106 of the Transfer of Property Act was challenged on the ground that the notice gave more than thirty days' time and not exactly thirty days' time to the defendant applicant to vacate the building. The notice dated 19.6.95 was served upon the defendant as stated above on 24.6.95 which terminated the tenancy of the defendant applicant on the last day of July, 1995, i.e., 31.7.95 and called upon him to vacate the building in dispute on 1.8.95.
10. Section 106 of the Transfer of Property Act as amended by U. P. State, in cases of lease from month to month, provides that the lease shall be terminable by thirty days' notice expiring with the end of a month of the tenancy. In the present case, the notice dated 19.6.95 was served upon the defendant terminating the tenancy on the last date of July. 1995, i.e., 31.7.95 and he was called upon to vacate the building in question on 1.8.1995. Thus, more than one month's time was granted by the said notice. It Is well-settled in law that a notice for terminating the tenancy in less than thirty days' time is invalid. In the present case more than thirty days' time was granted, which was for the benefit of defendant applicant, therefore, the notice cannot be held to be invalid and illegal. A reference in this regard may be made to the following decisions of the Apex Court and this Court :
1. Burmah Shell v. Khwaja Nidhat Noor, 1988 (3) SCC 44.
2. Kailash Nath Engineering Co. v. IIIrd ADJ, Gonda and others, 1983 ARC 148.
In view of the aforesaid decisions, the submissions made by the learned counsel for the petitioner that notice was invalid cannot be accepted.
11. So far as the question of waiver of the notice of termination of tenancy is concerned, the plaintiff-respondent was entitled to receive the rent from the defendant applicant, of the building in dispute, till termination of his tenancy. The rent of the building in question for the period ending on 31.7.95 was accepted on 5.7.95. The said date although is after the date of receipt of the notice ; but before the date of termination of tenancy.
12. Section 113 of the Transfer of Property Act provides as under :
"113. Waiver of notice to quit.--A notice given under Section 111, clause (h), is waived, with the express or implied consent of the person to whom It is given, by an act on the part of the person giving it. showing an intention to treat the lease as subsisting."
13. In view of the aforesaid provision, it cannot be held that by receiving the rent outstanding against the defendant, before the date of termination of tenancy, the plaintiff respondent in any manner intended to treat the lease/tenancy of the defendant applicant as subsisting inasmuch as by that time, the tenancy was not terminated. If the rent is accepted for the period after the date of termination of tenancy by the landlord and the tenant is permitted to continue in occupation of the building in his tenancy, the notice of termination of tenancy stands waived, but not otherwise. A reference in this regard may be made to the decisions in Basant Lal v. State of U. P., AIR 1981 SC 170 : Mongol Sen v. Smt. Krishna Devi. J 970 ALJ 803 ; Rang Nath v. State and, 1984 AWC 415 ; Kailash Engineering Co. v. IIIrd ADJ. Gonda and others, 1983 ARC 148.
14. It may be noted that acceptance of rent after institution of suit amounts to waiver of notice under Section 113 of the T. P. Act in a case where provisions of the Act were not applicable. The Court below was, therefore, justified in holding that notice of termination of tenancy was not waived.
15. The submission made by the learned counsel for the applicant that the statement of Sri D. S. Chauhan, Advocate who was the counsel of the plaintiff respondent was inadmissible in evidence and was based upon the provisions of Rules of Bar Council of Uttar Pradesh framed under the Advocates Act, 1961. Rule 13 which was referred to and relied upon the learned counsel for the applicant is quoted below :
"13. An Advocate should not accept a brief or appear In a case in which he has reason to believe that he will be a witness and if being engaged in a case, it becomes apparent that he is a witness on a material question of fact, he should not continue to appear as an Advocate, if he can retire without jeopardising his client's interests."
16. It is not disputed that Mr. D. S. Chauhan advocate was the holder of General Power of Attorney of the plaintiff. His appearance as a witness in the case for the plaintiff may amount to professional misconduct, but his statement in the Court cannot be said to be inadmissible. Inasmuch as the Evidence Act In no where provides the statement of the counsel recorded on oath in a Court will be inadmissible.
17. Learned counsel appearing for the applicant has utterly failed to substantiate his argument and to show any provision of law or authority having binding force, in support of his submission. Therefore, the submission made by the learned counsel for the applicant that the statement of Mr. D. S. Chauhan is Inadmissible in evidence cannot be accepted.
18. In the end, learned counsel for the applicant prayed that some reasonable time may be granted to the applicant to vacate the building as it will not be possible for the defendant applicant to arrange for an alternative accommodation immediately after dismissal of the present revision as there was shortage of buildings, particularly of business premises at Lucknow. Learned counsel for the contesting respondent has formally opposed the said request. He has, however, submitted that reasonable time may be granted subject to the condition the applicant undertakes in writing to vacate the building in question to deliver vacant possession to the plaintiff respondent and to pay the amount of rent till the applicant is permitted to remain in possession of the building in dispute.
19. In view of the aforesaid discussion, this revision has got no merits and is liable to be dismissed. However, the applicant is granted nine month's time from today to vacate the building in question subject to the condition the applicant furnishes an undertaking in writing before the Court below within four weeks from today to the effect that applicant shall vacate the building in question and shall deliver vacant possession immediately after expiry of the aforesaid time and shall also pay rent for the period it remains in possession of the building in question. The amount of arrears of rent, if any, outstanding against the applicant shall be deposited within one month. The amount deposited by the applicant in the Court shall be permitted to be withdrawn by the contesting respondent. The Registry is directed to send back the record of the case to the Court below at an early date.
20. Subject to what has been stated above, this revision fails and is dismissed, but without any order as to costs.