Mere payment and acceptance of rent by the landlord after the notice to quit cannot by itself necessarily constitute waiver. There must be an intention on the part of both the landlord and the tenant to treat the lease as subsisting.

( 1 ) THE appellant instituted a suit against the respondent for his ejectment from a house situated in Ujjain and for recovery of arrears of rent. The learned civil judge, First Class, Ujjain, who tried the suit, dismissed the plaintiff's claim for ejectment. The claim for arrears of rent was, however partially decreed. The decision of the trial court was upheld by the District Judge of Ujjain, The plaintiff has, therefore, filed this second appeal.

( 2 ) ONE of the grounds on which the plaintiff sought to evict the defendant Abdul Rehman was that the defendant fell in arrears of rent and did not pay them despite repeated notices asking him to pay the arrears of rent within one month of the receipt of the notices. In reply, the defendant pleaded that he Lever made a default in the payment of rent and that the last notice to quit which the plaintiff gave on 13th February 1952 was waived by the plaintiff by accepting rent for a period after the expiry of the notice. Both the courts below have found that the plaintiff first gave a notice to quit on 3rd September 1951 stating that the defendant was in arrears of rent to the extent of Rs. 250/-; that the second notice was given on 29th January 1953 and on the expiry of the period of the notice the defendant had to pay to the plaintiff Rs. 400/- as rent up to 29th February 1952; that the third notice which the plaintiff gave on 30th January 1952 merely corrected a statement in the second notice as regards the period during which, according to the plaintiff, the defendant had made a default in the payment of rent; that the plaintiff gave the fourth notice on 13th February 1952; that on 14th June 1932 the defendant sent to the plaintiff a cheque for Rs. 150/- which the plaintiff retained ; and that by retaining the cheque the plaintiff received not only the arrears of rent amounting to Rs. 400/- up to 29th February 1952 but also the rent for the months of March and April 1952, that is to say for a period after the expiry of the notice on 13th February 1952. This acceptance of the rent by the plaintiff was regarded by the courts below as tantamount to a waiver by the plaintiff of the notice to quit which he gave on 13th February 1952. The plaintiff's claim for ejectment was, therefore, rejected by the lower courts.

( 3 ) THE only question that arises for consideration in this appeal is whether the acceptance by the plaintiff of a cheque for Rs. 150/- which the defendant sent to him on 14th June 1952 can be regarded as a waiver of the notice to quit which the plaintiff eave to the defendant on 13th February 1952. There can be no doubt that by retaining this cheque the plaintiff received payment of rent for the months of March and April 1952, that is for some period after the expiry of the notice dated 13th February 1952. The question is whether this acceptance of rent by itself is sufficient to hold that the plaintiff waived the notice to quit which he served on the defendant on 13th February 1952. Under Section 113, Transfer of Property Act, a notice given under Section 111 (h) is waived, with the express or impliedconsent of the person to whom it is given, by any act on the part of the person giving it showing an intention to treat the lease as subsisting. It will be seen from the wording of Section 113 that in order to constitute waiver, there must be an intention not only on the part of the lessor but also on the part of the lessee to treat the lease as subsisting. What has to be proved is whether the landlord accepted the amount of rent for a period after the expiry of the notice to quit from the tenant as rent and with an intention to treat the tenancy as subsisting. It is manifest that when the question of waiver is one of intention, mere payment and acceptance of rent by the landlord after the notice to quit cannot by itself necessarily constitute waiver. As has been pointed out by the Federal Court in Kai Khushroo v. Bai Jerbai, AIR 1949 FC 124, the assent of a