The mere acceptance of rent by the landlord after issuing a notice to quit does not constitute waiver unless there is a consensus of the minds of the lessor and lessee to waive the notice.

JUDGMENT:- This appeal has been preferred by the defendant to canvass the correctness of the decree for ejectment passed against him by the appellate Judge in reversal of the dismissal of the suit by the trial Judge. The only question for consideration in this appeal is whether receipt of rent by the respondent-landlord subsequent to his issuing a notice (Ex. A-6) of termination of tenancy would amount to waiver as known to law, and would stand in the way of the action for ejectment not preceded by another valid notice to quit.

2. The brief facts which require to be noticed for considering the case on hand are as follows: The respondent as owner of Door No. 189, Raja Street, Walajabad, leased it out to the appellant for a period of 11 months for a certain rent. There is some dispute about the quantum of rent, but we are not concerned with that in this appeal. The lease was entered into on 10-9-1964. The leased property consisted of a front portion having a flour-mill therein and another portion having an aluminium smithy therein. It would appear that about a month or two after the lease, the appellant surrendered that portion of the building which housed the smithy and retained in his possession only the flour mill portion. He was paying a rent of Rs. 50/- per month for the portion in his occupation. After the period of 11 months was over, the respondent filed R. C. O. P. No. 65/65 under the Madras Buildings (Lease and Rent Control) Act (18 of 1960) to have the appellant evicted on grounds of willful default in payment of rent and bona fide requirement. That application was dismissed on 30-3-1966. Thereafter, the respondent gave the notice Ex. A-6 on 17-4-1967 and terminated thereunder the lease with effect from 10-5-1967. He followed up the notice by filing another petition R. C. O. P. 54/67. But that petition had to be, eventually, withdrawn as the respondent was advised that the lease in favour of the appellant was of a composite nature, the lease being not only a building but also of the flour mill machinery installed therein and therefore, only a suit in ejectment and not a petition under the Act 18/60 would lie. On account of that, the petition was dismissed on 9-2-1968. There was an interregnum and it was only on 22-7-1968 the respondent came forward with his suit, O. S. No. 759/68, for recovery of possession of the lease property. Despite issuing the notice, Ex. A-6, the respondent received rent for the property till the end of the year 1968 and it was only on 19-3-1969 that he refused the rent sent by the appellant through money order.

3. In the suit, the defence of the appellant, which aspect alone needs consideration now, was that there had been no valid notice of termination and, in any event, the notice had been subsequently waived by the respondent accepting payment of rent without demur. The trial court sustained the second of the two defences mentioned above and found waiver against the respondent. The appellate Judge relying upon K. S. Abdullah v. Srinivasan, 1971-1 Mad LJ 385 held that the mere acceptance of rent after issue of notice to quit by itself, would not constitute waiver as Sec. 113, Transfer of Property Act required something more to show that the parties had waived the notice. He, therefore, reversed the judgment of the trial court and gave judgment in favour of the respondent. Aggrieved by that, the tenant has come up in Second Appeal.

4. Mr. Srinivasa Gopalan, learned counsel for the appellant, raised two contentions before me to assail the judgment of the appellate Judge. The first one is that Saleh Bros. v. K. Rajendran (1969) 1 Mad LJ 247 = (AIR 1970 Mad 165) on the basis of which Abdullah v. Srinivasan (1971) 1 Mad LJ 385 was decided, was decided on erroneous reasoning and the ratio laid therein should not, therefore be applied. The second contention is that, in any event, the facts of the instant case are different from the facts in that case and, on that score, the appellant was ent