A notice to quit can be waived with the implied consent of the tenant, and the tenant does not become a statutory tenant if the old tenancy continues after the notice is waived.

( 1 ) THIS appeal by the tenant defendant No. 1 under Clause 15 of the Letters Patent is directed against the decision of Gupta, J. affirming the decision of the Courts below, whereby the plaintiff respondent's suit for eviction of the defendant appellant from a portion of the disputed premises was decreed.

( 2 ) THE suit was initially instituted against the present appellant and four others for eviction from the suit premises on the ground of default in the payment of rent. The trial Court decreed the suit against the present appellant holding him to be the tenant in respect of the suit premises and dismissed the suit against the other defendants on the ground that they were unnecessary parties. Against the said decision, the defendant went up in appeal to the first appellate Court and the appeal was dismissed by the Subordinate Judge, 8th Court, Alipore by his judgment and decree dated September 26, 1958. Both Courts found the appellant to be a defaulter in the matter of payment of rent for period from February to November, 1954. The appellant thereupon filed a second appeal to this Court and the only point canvassed in the said appeal was the validity of the notice to quit served upon the defendant appellant. The correctness or otherwise of the finding of the Courts below with regard to the default was not in dispute in the second appeal.

( 3 ) IT appears from the record that the notice, on the basis of which the defendant appellant was asked to quit and vacate the premises in suit was issued on May 10, 1955. The said notice has been marked Ext. 3 in this suit. It further appears from the facts of the case that on February 22, 1955 Sm. Indu Prova Ghose, predecessor of the present respondents caused another notice to quit to be issued upon the appellant requiring him to quit and vacate the disputed premises with the expiry of the month of March, 1955 and both the notices were duly served on the appellant. The earlier notice was marked as Ext C in the suit before the trial Court.

( 4 ) BEFORE Gupta, J. , the bone of contention between the parties was whether the earlier notice dated February 22, 1955 was waived so that the subsequent notice dated May 10, 1955 would be sufficient to terminate the tenancy of the appellant. Gupta, J. came to the finding that the earlier notice must be treated as having been waived with the implied consent of the tenant and accordingly overruled the contention of Mr. Guha appearing for the appellant. In that view of the matter, he dismissed the appeal. Hence, the instant appeal with leave.

( 5 ) MR. Amar Kumar Mukherjee the learned Advocate appearing for the appellant contended before us in the first place that the second notice was not legally valid to terminate the tenancy of the defendant, the first notice not having been waived with the implied or express consent of the appellant. In the next place, Mr. Mukherjee contended that the first notice was sufficient to terminate the tenancy of the appellant, and the tenancy having been so terminated, the appellant continued to be a statutory tenant under the provisions of the West Bengal Premises Rent Control Act, 1950. Consequently there could be no question of termination of the tenancy of a statutory tenant by the second notice to quit. Lastly, Mr. Mukherjee contended that the question of waiver not having been raised or pleaded in the plaint, it could not be raised for the first time in the second appeal, in the absence of express pleading.

( 6 ) WE propose to take up the first and second objections of Mr. Mukherjee together. It is no longer disputed that the predecessor of the respondent Sm. Indu Prova Ghose caused two notices to quit to be issued and served on the appellant and both the notices were replied to by the appellant's Advocate. The notice to quit dated February 22, 1955 (Ext. C) was replied to by the appellant's Advocate on March 31, 1955 wherein it was disputed that the appellant was a defaulter. It wa