This is a defendant’s appeal. A significant point of law arises in this appeal and hence by consent of parties, the appeal is heard on merits even at the stage of admission and is disposed of by this judgment.

2. The parties are referred to by their rank before the trial court for the sake of convenience.

3. The suit was for ejectment of the defendant, from the property under its occupation. The defendant is a registered partnership firm. It was said to have been inducted into the premises, more than three decades ago, by the plaintiff’s husband. The defendant carries on its business of sale of automobile spares and accessories from the premises.

It is not in dispute that the parties did choose to reduce the terms of the lease into writing in the year 2004, dated 21.5.2004. The term was shown as being for a period of four and a half years. It was renewable at the option of the parties.

The plaintiff is said to have issued a notice of termination of tenancy dated 21.8.2008, on the expiry of the term of the lease. The defendant claims that though the plaintiff had thereafter agreed to renegotiate a renewed lease deed, the plaintiff had filed a suit for ejectment. The same was said to have been decreed ex-parte. The defendant is then said to have taken steps to have the decree recalled and is said to have contested the suit.

Apart from the contentions in the written statement, a crucial circumstance that was urged by the defendant – as to the suit having been rendered infructuous, is the conduct of the plaintiff in having received rents in respect of the premises subsequent to the termination of the tenancy and during the pendency of the suit. It is, in fact, not in dispute that the defendant has paid the rents and the plaintiff has received the same up to date, even as on the date of hearing of this appeal. The defendant had contended that by virtue of such receipt of rents, after termination of the tenancy and during the pendency of the suit, the plaintiff had waived the notice to quit, issued prior to the suit. And hence the suit for ejectment based on such notice was no longer maintainable.

It is also pointed out that the trial court has negated the above contention on the basis of a judgment of the apex court which, however, did not refer to and consider – earlier judgments by larger benches, wherein the view expressed was otherwise.

It is also contended that the notice of termination, issued by the plaintiff dated 21.8.2008, stood waived by virtue of a second notice of termination of the tenancy, dated 12.5.2009, thereby treating the tenancy as subsisting between the period of the first notice and the second.

The trial court having negated the above contentions of the defendant and the suit having been decreed as prayed for, the present appeal is filed.

4. Having heard the learned counsel for the parties and having considered the authorities furnished in support of their contentions, the point of law raised above is considered.

5. It is seen that the trial court had framed the following issues:

“1. Whether the notice of termination is valid?

2. Whether the plaintiff is entitled for damages? If so, at what rate? (Issue No.2 is modified vide order on I.A.8 dated 27.4.2013)

3. What decree or order?

Additional Issue:

“1. Whether the defendant proves that the plaintiff has waived notice as pleads in para – 2.3 of written statement?”

The issue, which is relevant to the above defence, is the Additional Issue. The trial court, in its wisdom, has thought it fit to deal with Issue nos.1, 2 and the Additional Issue together. It is also of some concern that the trial court having referred to the judgments in Kai Khushroo Bezonjee Capadia v. Bai Jerbai Hirjihboy Warden, (1949) Federal Court Reports 262, decided by a majority of four judges, of the five judge bench, and Karnani Industrial Bank Ltd. v. Province of Bengal, 1951 SCR 560, a three judge bench decision, has proceeded to place reliance on a later decision of the apex court in the case