A landlord can waive a previous notice to quit and create a fresh tenancy by serving a new notice, provided there is express or implied consent from the tenant.

1. This is plaintiffs second appeal against the judgment and decree of the District Judge, Jammu dated 20-2-1971 affirming the judg­ment and decree passed by the city Judge, Jammu whereby he dismissed the plaintiffs suit.

2. The facts necessary to be considered in this appeal are almost admitted. Respondent Sudesh Kumar is a tenant of a shop situate in Raghunath Bazar, Jammu, owned by the plaintiff appellant. The appellant filed a suit for the ejectment of the defendant respondent on the ground that the defendant had committed several defaults in the pay­ment of rent. During the pendency of the suit the plaintiff appellant moved an application requesting the trial court to issue directions to the defendant respondent that he should deposit in court the arrears as well as the monthly rent. The defendant admitted that he was in arrears and the court granted him time to deposit the arrears. As the arrears were not deposited in time the trial court struck of the defence of the defendant-respondent vide its order dated 24-3-70. The defendant filed a revision petition in this court and the said order was confirmed by this Court on 23-4-1970. Daring the pendency of this revision the defendant -respondent filed an application before this court submitt­ing that the suit of the plaintiff-appellant who was the respondent in the revision petition at that time should be dismissed as infructuous because he has served the defendant with a fresh notice for ejectment thereby accepting him as his tenant. While rejecting the revision petition by the above said order Honble the Chief Justice, who heard that revision peti­tion did not make any comment on the said application but directed the trial court to hear and dispose of the said application of the defendant respondent on merits.

3. After the case went back to the trial court the learned City Judge heard the parties on the said application and came to the conclu­sion that by serving the fresh notice the plaintiff-appellant has accepted the defendant-respondent as his tenant and has treated the lease as subsist­ing between the parties as such the previous notice stands waived un­der Section 113 of the Transfer of Property Act, 1977, Samvat, so he dismissed the suit but left the parties to bear their own costs. The plain­tiff appellants appeal to the District Judge also failed who affirmed the findings of the trial court. Hence this second appeal.

4. The sole point which falls for consideration is, as to whether by serving a fresh notice, the previous notice stood waived and the suit based on the previous notice should be held to be not maintainable. The principle of law under-lying Section 113 of the Transfer of Property Act, 1977, Samvat, is that the parties can agree to continue the relation­ship of landlord and tenant or can create a fresh relationship of land­lord and tenant at any time they like to do so. A landlord who is the owner of the property may have terminated the tenancy but later on by means of giving consent to continue as landlord and tenant may waive the previous termination. In order to appreciate this proposition it is useful to refer to Section 113 of the Transfer of Property Act, 1977, Samvat and illustrations given under that Section which run as under: -

113. 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.

illustrations.

a) A, the lessor, gives B, the lessee, notice to quit the property leased. The notice expires. B tenders, and A accepts, rent which has become due in respect of the property since the expiration of the notice. The notice is waived.

b) A, the lessor, gives B, the lessee, notice to quit the property leased. The notice expires, and B remains in possession. A gives to B as lessee a second notice to quite- The first notice is waived."

5. The perusal of this section makes it abundantly

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