Judgement

HIDAYATULLAH, C.J.I. : In this appeal, by special leave, the appellant is the tenant of house No. 120B, Manoharpukur Road, District 24 Parganas, Calcutta 29 and the respondent is the landlord. Both the tenant and the landlord died after the institution of the suit and are represented by their legal representatives. The suit was for ejectment of the tenant for default in payment of rent as agreed to between the parties.

2. The suit was dismissed by the Munsif, 1st Court, Alipur, but on appeal the judgment was reversed by the Subordinate Judge, 8th Court, Alipur whose decree was confirmed on appeal by the learned single Judge in the High Court at Calcutta. This appeal is against the judgment dated August 14, 1965 of the Calcutta High Court.

3. The premises were rented out to the original tenant as far back as May 1944 on monthly rent of Rs. 130. The tenancy was from month to month. According to the landlord the rent of the premises had to be paid on or before the 7th day of each calendar month. According to the tenant the rent was to be paid as and when the sarkars came to collect it on behalf of the landlord who employed such agents as he had many other houses rented out to other tenants. The High Court and the appellate Court below have accepted the case of the landlord and that is a finding with which we must start. The monthy rent for eight months between September 1954 to April 1955 was admittedly collected and paid beyond the period limited by the agreement. On August 11, 1955 a notice determining the tenancy was served on the original tenant and he was asked to quit on the expiry of the month of August, 1955 on pain of being held liable in damages at Rs. 5 per day for wrongful occupation from the 1st September, 1955. On October 2, 1955, the original landlord accepted rent upto September, 1955 and thus waived the notice which was given. It appears also that the landlord accepted rent from November 1, 1955 to February 1, 1956 and granted reciepts for the rent. On February 9, 1956 a second notice determining the tenancy was served calling upon the original tenant to deliver possession of the premises on the expiry of February, 1956. The notice this time also added a condition that in case the original tenant overstayed in the premises beyond February, he would be liable to damages. The present suit was filed on March 1, 1956 with the result already stated.

4. In the written statement filed by the original tenant it was stated that the original landlord had waived the right of forfeiture for default upto August, 1955 when he accepted rent for September,1955 and acquiesced in the continuance of the tenancy by receiving rent upto January, 1956. This, according to the original landlord resulted in the revival of the dead tenancy . The High Court has held that the old tenancy continued between the parties with all its advantages and weaknesses and that the original landlord was, therefore, able to take advantage of the old defaults and base the notice on them.

5. In this appeal it is contended that after the landlord accepted the rent for September a new tenancy came into existence and the old defaults could not therefore be made the foundation of the second notice to quit. This is opposed by the answering respondent, the legal representative of the original landlord.

6. The matter is governed by the West Bengal Premises Rent Control (Temporary Provisions) Act, 1950. It came into force on March 30, 1950. This temporary Act remained in force till March 31, 1955 when it was repealed by the West Bengal Premises Tenancy Act, 1956 which came into force from March 31, 1956. However, as the suit had already been filed it continued to be governed by the repealed Act in view of Section 4 of the new Act which states :

"that notwithstanding the repeal of the old Act any proceedings pending on the 31st day of March, 1956 would continue as if the said Act had been in force."

Under the old Act there was a protection to tenants against evi