Acceptance of rent by the landlord after the expiry of the notice to quit amounts to a waiver of the notice and prevents the landlord from evicting the tenant.

( 1 ) THIS matter has come before us on having been referred to a Bench by one of UK (Ansari J. ). It may also be pointed out that the case was remanded to the District Court, Adilabad, by the High Court after framing an issue to the following effect:"whether the plaintiff has received rents for the months subsequent to April, 1953 and has thereby waived the notice with the intention of treating the lease as subsisting. " After the case was remanded the District Judge recorded the evidence of the parties and has now submitted his finding.

( 2 ) THE facts briefly are that one Kanji instituted a suit against Kapurchand for eviction from shop No. 6 situated in Sirpur, basing the suit on a rent note said to have been executed by the said Kapur Chand on 1-10-1950. It was alleged that the premises was taken on a rental of Rs. 30. 00 per mensem and that the tenancy had expired and that a notice was given to quit on 11-4-1953 and inasmuch as the tenant failed to vacate, the present suit was instituted for ejectment. The tenant who is the appellant before us admitted the execution of the rent deed but said that it related to shop No. 7 and not shop No. 6. With regard to the premises bearing No. 6, the defendant contended that he was tenant on a rental agreement for a period of 10 years and that the landlord was with-holding that rental agreement deliberately. After trial, the trial court dismissed the plaintiffs suit. On appeal the appellate court set aside the judgment of the lower Court and decreed the. suit. Aggrieved by this Judgment the tenant took the matter in appeal to the High Court and it was at the stage of the hearing before the High Court the case was remanded for further evidence on a fresh issue framed by the High Court on which, findings have been given by the lower appellate court.

( 3 ) IT has to be stated that the stand taken by the defendant tenant in answer to the suit of the plaintiff was that he held the suit premises on a tenancy basis for period of 10 years. This plea of his amounted to this that he was not liable to be evicted for a period of 10 years. It happened that when the case came up before the High Court in Second Appeal the defendant craved leave to amend his written statement in order to add an alternative plea to say that the plaintiff was not entitled to evict him by reason of his having accepted the rents after the termination of the tenancy. This plea was not raised as such in the written statement but the defendant had tiled receipts given by the landlord for rents due subsequent to the period after the termination of the tenancy. Therefore there was already material on record for forming the basis for the alternative plea. Although with regard to this question as to whether the landlord received rents subsequent to the termination of die lease the lower appellate Court was directed to enquire into the matter, the matter as to whether the defendant should be allowed to amend his written statement by reason of a further alternative plea was left open. This matter was urged before us and we permitted the defendant to amend his written statement on condition that he paid Rs. 50. 00 as costs to the landlord, because it was an alternative plea raised by the defendant on the material already on record. We were of the opinion that in the circumstances the defendant could be allowed to raise the plea with the permission of the Court.

( 4 ) THE only point which requires consideration now by this Court at this stage is as to whether by reason of the landlord having accepted rents after the expiry of the period of tenancy he was debarred from ejecting the tenant. In other words did this act of the landlord in accepting rents after the notice to quit and termination of the tenancy amount in law to waiver of the notice to quit.

( 5 ) IT would be useful to refer to the relevant provisions of the Transfer of Property Act relating to the termination of tenancy and leases. Ordinarily under Section 111 of the T.

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