Acceptance of rent for the subsequent period does not amount to waiver of notice terminating tenancy if the landlord makes it clear that the rent is being accepted subject to the result of the suit already filed.

J.V.Gupta, J.

1. This is plaintiffs second appeal whose suit for ejectment of the defendant from the shop in dispute has been dismissed by both the Courts below.

2. The plaintiff is the owner of Shop No. 10 whereas the defendant is a tenant under her since 1970 vide lease deed dated 26th September, 1970 at the rate of Rs. 200 per month. The building in question was built in the year 1970 and was completed on 6th August, 1970 and, therefore, the provisions of the Rent Restriction Act did not apply in view of the notification dated 21st June, 1971, issued under section 3 of the East Punjab Urban Rent Restriction Act, 1949 (hereinafter referred to as the `Act). Notice was served upon the defendant to terminate the tenancy under section 106 of Transfer Property Act. Since the defendant failed to vacate the premises the present suit was filed for ejectment and for recovery of Rs. 1,000 as arrears of rent up to 30th April, 1973. The suit was contested, inter alia, on the ground that subsequent to the filing of the suit, the plaintiff issued three notices in which the plaintiff accepted the defendant as her tenant and demanded rent which was duly paid by the defendant against receipt and, as such, the plaintiff created a fresh tenancy and waived off the right to file the present suit. On merits it was pleaded that no construction had been made and the lease deed is not admissible for want of registration. The trial Court found that the defendant was not protected by the provisions of the Act; that the building was constructed within five years of the filing of the suit;, and that a valid notice was served upon the defendant for termination of the tenancy. However, the plaintiffs suit was dismissed on the ground that the plaintiff has waived off the notice dated 5th April, 1973 by her own act and conduct by accepting the rent for the period subsequent to the termination of tenancy. In appeal, the Additional District Judge, affirmed the said finding of the trial Court and thus maintained the decree dismissing the plaintiffs suit.

3. Learned counsel for the plaintiff-appellant submitted that there was no question of waiver in this case. The approach of the Courts below in this behalf was wholly wrong and mis-conceived. In the notices issued by the plaintiff to the defendant it was made clear that the rent was being claimed for the subsequent period without prejudice to her right in the suit. According to the learned counsel since the defendant was liable to pay the rent for the subsequent period the question of waiver as such did not arise. In support of this contention he has referred to Hashmatrai and another v. Tarachand and others, AIR 1979 Bombay 95; Ramjilal v. Gulabrao, AIR 1979 Bombay 44; Usha Jain v. R.P. Rehal, 1986(2) RCR 622 and V.D. Devasia v. Michel Joseph (Kerala), 1990(1) RCR 584. He further submitted that since the other findings were in favour of the plaintiffs by both the courts below, the plaintiffs suit should be decreed.

4. On the other hand, learned counsel for the defendant-respondent submitted that it was a case of waiver and, therefore, the suit has been rightly dismissed by the courts below. In support of this contention he has referred to Ram Dayal v. Jawala Prasad, AIR 1966 Allahabad 623 and Kapur Chand v. Kanji, AIR 1959 A.P. 346. He further submitted that the notification dated 21st June, 1971, could not be made applicable retrospectively and, therefore, the premises could not be said to be exempted from the provisions of the East Punjab Urban Rent Restriction Act, 1949 . In support of this contention reference was made to Messrs Punjab Tin Supply Co. v. Central Government, 1984(1) RCR 168 : AIR 1984 SC 87.

5. I have heard the learned counsel for the parties and have also gone through the case law cited at the Bar. The Notification dated 21st June, 1971, under which the premises were exempted reads as under :-

"In exercise of the powers conferred by section 3 of East Punjab Urban Rent Restriction A