Mere acceptance of rent after the termination of tenancy does not amount to waiver of notice to quit under S. 106 of T. P. Act.

( 1 ) THIS revision has been preferred under S. 25 of Provincial Small Cause Courts Act against the judgment and decree for eviction and recovery of arrears of rent passed in SCC Suit No. 6 of 2001 by XIth Addl. District Judge, Kanpur Nagar on 20-8-2001.

( 2 ) THE facts in brief are as follows : the opposite party filed suit for eviction and recovery of arrears of rent. It was alleged in the plaint that the revisionists were tenant of the disputed premises No. 7/258 old and 7/213 new, Swaroop Nagar, Kanpur Nagar at rental of Rs. 15,000. 00 per month; that the premises is non-residential; that the tenancy has been terminated by notice dated 5-7-2000 which was served on revisionist No. 2 on 7-7-2000; that the premises has not been vacated hence the suit was filed.

( 3 ) THE defence taken in the written statement filed by the revisionist No. 1 through revisionist No. 2 is that the rent has been accepted after termination of the tenancy and, therefore, the notice stands waived and the tenancy is still subsisting; the locus standi of the so-called authorised attorney through Sri R. P. Gupta is also challenged.

( 4 ) IT appears that in the trial Court, point No. 2 that Sri R. P. Gupta is not an authorised attorney of the opposite party was not pressed. This point has also not been pressed in this revision. The trial Court, therefore, held that only one point arises for decision in this case and that is whether the notice has been waived? If so, its effect? The trial Court recorded a finding that the notice has not been waived. It has, accordingly, denied the suit. Aggrieved by it, the present revision has been preferred.

( 5 ) I have heard Sri Ajit Kumar, learned counsel for the revisionists and Sri Ravi Kant, Senior Advocate assisted by Sri Amit Krishna, learned counsel for the opposite party.

( 6 ) IN view of the above pleadings of the parties the only point that arise for decision in this revision is as to whether the notice under S. 106 of T. P. Act sent by the opposite party to the revisionists has been waived. There is absolutely no dispute regarding the facts of this case and it has been admitted that even after the service of notice of termination of tenancy the rent has been accepted. Not only this, it is also admitted that the rent was paid during the pendency of the case before the trial Court and the same was accepted by the opposite party. Therefore, the question for consideration is as to whether the acceptance of the rent after the termination of the tenancy and during the pendency of the case amounts to waiver of the notice. This is pure question of law and I have heard the learned counsel on this point at length.

( 7 ) SRI Ajit Kumar, learned counsel for the revisionists firstly relied on the decision of this Court in P. N. Shah v. Brijendra Nath, 1982 All LJ 719 decided by Honble Mr. Justice T. S. Misra. The learned counsel has relied on the head note prepared by the Reporter which appear to be quite in consideration with the judgment. A perusal of paragraph 3 of the judgment show that one notice of termination of tenancy was served on 10-6-1966. The tenancy was not effected and thereafter the rent was accepted. Thereafter second notice was served on 2-8-1967. On these facts, it was held that the first notice stand waived. Therefore, this decision is of no help to the revisionists.

( 8 ) THE other decision referred to is Om Prakash Saxena v. Raja Babu Saxena reported in 1974 All LJ 364. In the case, it was observed that where the landlord accepts rent, which is for a period beyond the date when the tenancy stands terminated, it has the effect of waiving the notice, for by this Act he has shown his willingness to accept rent and continue the tenancy. This finding was recorded in the circumstances of the case that the rent was paid by the tenant in advance where it was observed that when the rent was accepted in advance, the tenancy could not be terminated in the period for which the rent was accepted.