Acceptance of rent after a notice to determine a lease does not automatically constitute a waiver of the notice; there must be a clear intention from both parties to treat the lease as subsisting.

1. This appeal is by the Municipality of Hazaribagh who brought the suit for ejectment of the defendant on the grounds of non-payment of rent and breach of conditions of tenancy and for damages for use and occupation of the premises after the determination of the lease. The defendant had taken lease from the Municipality of two stalls at a monthly rent of Rs. 14 for each, for the period from 1st September, 1936 to 31 December, 1937, but the defendant held over his possession after that date. Plaintiff-Municipality served a notice by registered post addressed to the defendant to his known address, on the 3rd March 1956, asking him to quit the premises from 1st April, 1956. There was no response from the defendant. Ultimately, the suit was instituted on the 24th September, 1956. The defendant in his written statement pleaded that he had no concern with that premises, and was not in possession of the same in 1924, in a family partition, those premises fell to the share of his brother Nathulal Agarwal who was in possession of these two stalls.

Secondly he denied the relationship between him and the Municipality as that of the landlord and tenant and asserted that no notice had been served upon bun before the institution of the suit. Another plea also was taken that full payment of rent for the said premises had been made to the Municipality, The trial Court decreed the plaintiffs suit but it was reversed by the appellate Court. The second appeal is, therefore, by the Municipality.

2. The two main grounds on which the lower appellate Court has dismissed the plaintiffs suit are that the notice dated 3rd March, 1056, issued by the Municipality by registered post, was not proved to have been served upon the defendant and in absence of such service the suit was not maintainable. Secondly that assuming that the notice was served, the Municipality by accepting rent for a period of two months after the notice waived its notice and, therefore, the suit also could not lie. The defendants plea that he was not a lessee under the Municipality was disbelieved. But, all the same, the suit was dismissed.

3. Ext. 4 (b) is the postal receipt which shows that on the 3rd March, 1956, the notice was sent by registered post to the defendants address. Ext. 7 is the postal acknowledgment from which it appears that one K. L. Jain received that registered notice on the 6th March, 1956. In evidence, on behalf of the Municipality, it was stated that K. L. Jain who had received the notice, though it was addressed to the defendant was the Munib of the defendant D. W. 2 and D. W. 4 denied him to be his Munib. But, in evidence, the defendant himself said that he could not say who was his Munib in March, 1956 when this notice was served at his end. He further stated that he could not say who were his Munihs in 1955 and 1966 without reference to papers that were with him. He admitted that the pay and allowance paid to the Munib were entered in Bahi-khatas which were maintained. He however, did not produce either any paper or Bahi-khata which would have thrown abundant light on the question as to whether K. L. Jain was his Munib in March, 1956 when he received the notice on behalf of the defendant.

It is well established that a party who has in his possession documentary evidence that is expected to throw light on the point at issue or in controversy between two parties, must produce it in Court. The ordinary rule that documents should be called for from a party, if wanted by other party, does not apply to cases where the documents in question are in possession of a litigating party That rule is applicable to such cases where documents are sought to be produced by a third party. A party who fails to produce a document which is likely to throw light on the point of controversy involved in a litigation must be subject to an adverse Inference to the effect that if he had produced such document that would have gone against his own contention on the point. Refer