The acceptance of rent by a landlord after the expiration of a notice to quit does not constitute a waiver of the notice unless there is an intention to waive on the part of the landlord.

Bhandari, J.

1. These two appeals under Clause 10, Letters Patent raise a common question of law, namely whether acceptance by a landlord of rent in regard to a period subsequent to the expiration of the notice to quit constitutes a waiver of the said notice.

2. The petitioner in this case is the owner of a certain house situate in Jullunder while the respondents are two legal practitioners of the same town who are in occupation of two separate portions of the said house. The landlord brought actions against his tenants for their eviction and obtained consent decrees against them according to which one of the tenants was to vacate the premises on 29-6-1949, and the Other on 20-11-1949. On 23-3-1949, that is while the tenants were still in occupation of the premises let out to them the Provincial Legislature enacted a measure known as the East Punjab Bent Restriction Act, 1949, Section 13 of which made the following somewhat unusual declaration namely:

"13(1)--A tenant in possession of a building or rented land shall not be evicted therefrom in execution of a decree passed before or after the commencement of this Act or otherwise and whether before or after the termination of the tenancy, except in accordance with the provisions of this section."

3. The enactment of this measure made it impossible for the landlord to execute the decrees against his tenants and on 22-9-1949 he was reluctantly compelled to issue fresh notices of ejectment to them in accordance with the provisions of Section 13 of the Act of 1949. These notices failed to achieve the object which the landlord had in view and on 28-1-1950 in one case and 6-2-1950 in the other the landlord brought two separate actions for the eviction of his tenants. While the cases were pending in Court the Governor of the Punjab promulgated an Ordinance known as the East Punjab Urban Rent Restriction (Amendment) Ordinance, 1950, Section 2 of which, added the following words to Sub-section(1) of Section 13 of the Act of 1949 namely:

"Or to pursuance of order made under Section 13, Punjab Urban Rent Restriction Act 1947, as subsequently amended."

4. This amendment had the effect of reviving and resuscitating all decrees or orders which had been passed under the Act of 1947 and which were lying dormant and in suspended animation ever since the passing of the Act of 1949. On 24-6-1950 the landlord presented two separate applications for the execution of the consent decrees which had been passed in his favour and on 6-11-1950 be formally withdrew the fresh proceedings which had been started by him on 28-1-1950 and 6-2-1950. The tenants objected to the execution of the decrees on the ground that as the landlord had accepted rent from the tenants after the notice to quit had been issued the acceptance of rent must be deemed to constitute a revocation or waiver of notice of ejectment previously given and the creation of a new relationship of landlord and tenant between the parties. This plea was rejected by the Rent Controller, was accepted by the District Judge and was again rejected by a learned Single Judge of this Court. The tenants are dissatisfied with the order of the learned Single Judge and have preferred an appeal under Clause 10, Letters Patent.

5. Mr. Bahri, who appears for the tenants, contends that although his clients have no normal right to retain possession of the premises which they had agreed to vacate on 29-6-1949 and 20-11-1949, they have acquired a legal right to retain possession thereof (1) because the landlord had accepted rent from them for periods subsequent to the dates on which they should have vacated the premises, and (2) because the tenants continued to remain in uninterrupted possession of the premises for several months following the expiration of notices and even the passing of the decrees. The acceptance of rent from the tenants, it is contended constitutes a very strong circum stance in support of the contention that the pre vious decrees were n