Judgment

V. BALAKRISHNA ERADI, J. :- This appeal by special leave is against a judgment rendered by the First Additional District Judge, Bulandshahr, allowing a Revision Petition filed before him by the respondent herein.

2. The respondent is the owner of a shop building in Jahangirabad town which he had let out to the appellant on a month to month tenancy basis. A suit for ejectment was filed by the respondent in the Court of Small Cause (Civil Judge), Bulandshahr, praying for eviction of the appellant from the shop under Section 20 (2)(a) of the U. P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 (for short, the Act) on the ground that the tenant was in arrears of rent for not less than four months commencing from April 9, 1972 and had failed to pay the same to the landlord within one month from the date of service upon him of a notice of demand (October 19, 1972). It was alleged in the plaint that the agreed rent of the shop was Rs. 100 per month and that the tenant had kept the rent in arrears from April 9, 1972onwards despite notice having been served on him on October 19, 1972 demanding payment of arrears of rent and determining the tenancy.

3. The appellant (defendant) pleaded in defence that the rent was only Rs. 90 per month, that he had not committed any default in payment of the same and hence the suit for ejectment was not maintainable. According to the defendant, after service of the notice of demand for payment of arrears of rent, the respondent had approached him with a request to stand surety for him for the payment of arrears of sales tax due by him for the realisation of which the Amin had come with a wan-ant for the arrest of the respondent and since the appellant had acceded to the said request and stood surety for the respondent, there could be no further question of any arrears of rent being outstanding as due by him to the respondent.

4. The trial Court held that the rent of the shop was Rs. 90 per month, that it had been kept in arrears by the tenant from April 9, 1972 onwards and a default had been committed by the tenant in payment of arrears of rent for more than four months after the notice of demand. Notwithstanding the aforesaid finding that there had been such default committed by the tenant, the trial Court took the view that the conduct of the plaintiff-respondent in including the defendant to stand surety for him for the payment of sales tax arrears due by him constituted a waiver of the demand made in the notice for surrender of possession on the ground of arrears of rent made. On this reasoning, the trial Court denied the plaintiff the relief of ejectment and decreed the suit only for recovery of arrears of rent.

5. The respondent-plaintiff carried the matter in revision before the District Court, Bulandshahr. The learned District Judge found that the plea of waiver had not been put forward by the defendant either in the written statement or in any other manner at any stage before the trial Court and that the issue covering the question of waiver had been framed by the trial Court of its own accord. The District Judge further found on the merits that no conduct amounting to waiver on the part of the plaintiff had been established by the evidence because even according to the case of the defendant himself, excepting for standing surety for the plaintiff, he had not actually made any payment on behalf of the plaintiff towards the sales tax dues since the plaintiff had specifically refused to make any endorsement in the Rent Deed adjusting the proposed payment of sales tax against the arrears of rent due by the defendant. Inasmuch as the trial Court had found that the default in payment of the arrears of rent for a period exceeding four months had been committed by the defendant and it had denied a relief of ejectment only on the reasoning that there had been a waiver of the demand for eviction on the part of the plaintiff, the District Judge allowed the Revision Petition and