JUDGMENT :- This plaintiff's Second Civil Appeal is directed against the judgment and decree of II Additional Civil Judge, Agra. The appellants are the legal representatives of the plaintiff Padam Chand Garg. They had filed the suit for arrears of rent and ejectment. The relief of ejectment was claimed on the basis of default. It is not disputed that a composite notice of demand and determination was served on the defendant-respondent on 13-7-67. The defendant-respondent remitted the arrears on 10-8-1963. From the record it appears that 11th and 12th of August, 1963 were postal holidays and when the money order was offered after 14th August, 1968, it was refused by the landlord. The suit out of which this appeal arises was then filed by Sri Padam Chand Garg.

2. The defendant-respondent contested the suit and contended that no default was committed. The trial Court decreed the plaintiff's suit. The lower appellate Court allowed the appeal holding that the money having been despatched within 30 days, the defendant could not be a defaulter. The plaintiff thereupon came to this Court in Second Appeal. Second Appeal was heard on 17th of March, 1971 and was allowed. It was subsequently learnt that the plaintiff had already died on 24th of February, 1971. The judgment passed by me on 17th March 1971 was then recalled and the appeal was directed to be taken after the substitution proceedings were over. Appellants who are the heirs of deceased Padam Chand Garg have been substituted as legal representatives of the deceased appellant. An application under Order 41, Rule 27, Civil P.C. has been moved in this Court on behalf of the respondent. By the application some new facts and documents are sought to be considered while disposing of the appeal. No counter-affidavit has been filed to the application. The papers sought to be considered are relevant and as such I have allowed the application. On the basis of the documents filed today it has been contended by the learned counsel for the respondent that the landlord renewed the tenancy by acceptance of rent and waived the notice of determination, whereas the learned counsel for the appellant has contended that the mere acceptance of rent even for a period subsequent to the date of notice would not amount to waiver of notice. His contention is that the appellant had all along been prosecuting his Second Appeal and, therefore, it cannot be said that he intended to waive the notice of termination. Reliance has been placed by him on Moti Lal v. Basant Lal, AIR 1956 All 175; Ganga Dutt Murarka v. Kartik Chandra Das, AIR 1961 SC 1067; Mangilal v. Sugan Chand Rathi, AIR 1965 SC 101; Permanand v. L. Murari Lal, 1966 All LJ 1074 and Faiyaz Ahmad v Brij Nandan Lal Goyal, 1969 All LJ 365.

3. The relevant facts on the basis of which waiver is sought are that on 12-9-1970 during the pendency of the Second Appeal in this Court, a notice was given on behalf of Sri Padam Chand Garg to the defendant asking him to pay arrears of rent due till 31-8-1970 within a month of the receipt of notice of demand and to vacate the premises thereafter. It was also mentioned in the notice that in case the tenant failed to pay the arrears, the suit for recovery of rent and ejectment shall be filed against him. On receipt of the notice dated 12-9-1970, the tenant paid the arrears and obtained a receipt which is Annexure-'B' to the affidavit accompanying the application moved under Order 41, Rule 27, Civil P.C. It appears that subsequently the tenant again did not pay the rent. Another notice was thereafter given on 2-2-1971 demanding arrears for the period commencing from 1-9-1970 to 31-1-1971 and asking the tenant to pay the arrears within 30 days, failing which he shall be liable to ejectment. These notices, according to the learned counsel for the respondent, amount to waiver of the first notice of termination and creation of a fresh tenancy in favour of the defendant. In my opinion, the contention of the learned counsel f

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