A waiver of a notice to quit cannot be spelt out or merely inferred by an act on the part of the one and either one of the actions or any act which does not thereby spell a contract or agreement between the parties to a particular effect spelling a waiver.

JUDGMENT-The facts in this revision application are no more in dispute and raise a short question of law.

2. The defendant was a tenant of the plaintiff in the premises in suit. On 28th October 1974 the plaintiff served a notice to quit upon the defendant calling upon him to quit and hand over possession on 30th November 1974. The rent agreed in respect of the premises was Rs. 50 per month. On 1st November 1974 the defendant paid rent for the month of November 1974 which was received by the plaintiff. On 2nd December 1974 it is alleged a payment of Rs.50 was received by the plaintiff from the defendant. Later a cheque was also received from the defendant for a sum of Rs. 150 on 25th March 1975. In the meantime, that is, before the receipt of the cheque for Rs. 150 a suit had been filed by the plaintiff against the defendant on 17th February 1975.

3. The plaintiff filed this suit for possession against the defendant and the defendant by his written-statement Ex. 17 raised several other pleas, including that the notice to quit was bad. With regard to the position arising from these facts the defendant stated that he paid on 2-12-1974 rent of Rs. 50 to the plaintiff in cash and on 25-3-1975 sent a cheque for Rs. 150 to cover the rent for January, February and March 1975, "it is thus clear that the plaintiff having accepted the rent after the notice has been received has waived the notice."

4. The short question which was raised before me in this revision application on behalf of the respondent was that the case of the defendant fell under section 113 of the Transfer of Property Act and that by acceptance of rent there was a waiver on the part of the plaintiff-landlord of the notice to quit issued under section 111, clause (h). Mr. Deo who appeared for the defendant wanted also to rely upon illustration (a) to that section. Section 113 so far as is material is as under :-

"Waiver of notice to quit: a notice given under section 111, clause (h) is waived, with the express or implied consent of the person to whom it is given, by any act on the part of the person giving it showing an intention to treat the lease as subsisting."

The analysis of that section would go to show that a notice given under section III is said to be waived where there is "express or implied consent of the person to whom it is given"; and that merely is not enough but there must be an act "on the part of the person giving it showing an intention to treat the lease as subsisting."

5. Now of the two payments alleged on the part of the defendant, the one dated 2nd December 1974 of Rs. 50 in cash which is after the notice to quit and which was received on 1-11-1974 has not been accepted and believed by the trial Court. The payment of Rs. 150 by way of a cheque is admitted by the landlord which payment, as pointed out above, is after the institution of the suit.

6. Now since the alleged payment on 2nd December 1974 is not proved and there is no evidence which bas been pointed out to me, which would make me think otherwise, the only question which I have to decide is whether upon a receipt of Rs. 150 after the institution of the suit, the notice to quit given by the landlord on 28th October 1974 would be deemed to be waived. It was strenuously urged before me by Mr. Deo that a mere acceptance of an amount calculated according to him for the months of January, February and March 1975 by the plaintiff landlord would mean that there was a waiver of the notice to quit. It is difficult to accept this contention.

7. This payment of Rs. 150 by a cheque is said to have been accompanied by a letter dated 25th March 1975 alleged to be sent by the defendant to the plaintiff. On behalf of the defendant what is alleged to be an office copy of that letter is produced at Ex. 45, but the trial Court did not accept the story of the defendant that the cheque was sent along with that letter. It was observed that the defendant in his written statement slated that a notice was sent by hi

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