JUDGMENT - JOSHI A.H., J.:-Revision petitioner-is the landlord-original plaintiff. The defendant was occupying the room used as a shop admeasuring 10 ft. x 8 ft. on monthly rent of Rs. 80/- pre month. The landlord served on the defendant a notice of ejectment Exhibit 22 alleging that the tenancy was monthly commencing on the first day according to English Calender and since respondents did not pay the rent and were in arrears of rent and that the tenancy was thereby terminated, the tenant was called upon to restore the land to the land owner the possession of the property. The notice also contained that onwards the date of termination of tenancy the respondents would be liable to pay the compensation every moth Rs. 10/- per day. The notice was dated 3rd March, 1992, and the tenants were called upon to deliver the possession by the end of March 1992 and in any case on 1st April, 1992. The tenants failed to deliver the possession inspite of the service of notice and the landlord thereupon filed the Regular Civil Suit No. 432 of 1992, (Old No. 237 of 1990) in the Court of Civil Judge, Junior Division, Chandur Bazar.

2. The plaint which was tendered on 1st April, 1992, consisted the prayers for recovery of arrears of rent in a sum of Rs. 800/- for a period from 1st February, 1991 to 31st March, 1992, and a decree for possession.

3. Upon the suit summonses the defendant appeared and filed written statement opposing the claim towards the arrears on the ground that there is no rent arrears whatsoever as the entire rent amount was paid from month to month. In the special pleas the defendant pleaded that the tenancy commences from 16th day of each month. Further that the defendants father had paid the rent upto January, 1992 and after the death of father of the defendants on 9th February, 1992, the rent for the month of February could not be paid. As to the practice of payment of rent, the defendants pleaded that a diary relating to the remittance of rent was maintained. However, That diary was retained by the father of the defendants and was not returned. According to the defendants they have regularly paid the rent after March, 1992, and that the defendant denied the story of arrears of rent. In paragraph 10 of the Written Statement a specific plea that was raised reads :

"Without prejudice to the above contentions, the defendants submit that the plaintiff has waived the Ejectment Notice by accepting the rent for a period subsequent to the notice of ejectment.----."

Proceeding with the hearing of the suit, the learned Trial Court framed various issues, however any issue relating to the plea of waiver was not framed.

4. Perusal of the record also does not reveal that the defendants had moved an application for framing additional issue or recasting thereof. While the plaintiff was in the midst of the cross-examination as P.W. 1 he was confronted with the plea of waiver by agitating the suggestion in the cross-examination that the plaintiff had issued the second notice. The plaintiff sought permission from the Court to produce it which is at Exhibit 29 the contents of the second notice- Exhibit 29 expressly contain the following :

(a) That Daulatrao Borkar was a tenant on the suit property and that the defendants are the heirs and the plaintiff has already issued a notice of ejectment and filed the civil suit;

(b) In the said suit defendant had raised plea that on account of acceptance of rent, notice stood waived and tenancy commenced from 16th of the month;

(c) Without prejudice to the plaintiffs right in the said suit the plaintiff was issuing the said notice;

(d) By the said notice plaintiff called the defendant to deliver the possession of the suit property treating that the tenancy commenced from 16th by treating the notice of 15 days demanding the possession on 31st August, 1993, and on or before 1st May, 1993.

5. The landlord had produced in the trial Court the first notice Exhibit 22 as indicated above, second notice Exhibit 29 as a

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