H.R. Krishnan, J.

This is a reference by a Single Bench (S.B. Sen J.) on two problems arising in this appeal which is one by the tenant-defendant in house accommodation against the landlord respondent. While the complete picture of the appeal is in the record before the Single Bench, the two questions which are the subject-matter of the reference have arisen in the following circumstances. One of the grounds of defence set up by the defendant is that the quit notice which was the basis of the suit had been waived by the landlord who issued a second notice to the same effect after the disposal of the suit and before the filing of the appeal. Accordingly the defendant-tenant contended that this suit would fail in any case, though it would be open for the plaintiff if he chooses to bring a fresh suit. The second question is the finding by the first appellate Court that the defendant-tenant had not really qualified for the benefit given to him by section 13(1) of the Accommodation Control Act as he had not tendered the entirety of the amount "calculated at the rate of rent at which it was paid for the period for which he had defaulted including the period subsequent thereto upto the end of the month previous to that in which the deposit or payment was made". The tenant no doubt had tendered for payment the entire sum claimed in the suit by the landlord which, as often happens, fell short of the total defaults because a number of payments had got time barred. The questions accordingly are,--first, (i) whether in the circumstances of this case--which will be set out in time--the plaintiff (respondent in second appeal) had disqualified himself from getting a decree of ejectment because he had issued a fresh notice after the dismissal of the suit and this amounts to a waiver; secondly, (ii) whether a tenant tendering or paying "the amounts in default calculated at the rate of rent" in respect of the accommodation gets the benefit of that provision by tendering or paying only the amounts legally due, that is, amounts for which a suit could be brought, or whether he has to deposit or tender the entire amount in default including such monthly payments as have got barred by lapse of time.

Effect of a subsequent notice: Question (I) :

The law applicable to the subject is contained in section 111(h) and section 113 of the Transfer of Property Act. The former provides for the issue of a notice determining the lease or to quit or of the intention to quit the property leased duly given by one party to the other. We are in the instant case concerned with a notice issued by the landlord determining the lease and asking the tenant to quit. Section 113 provides--

A notice given under section 111(h) is waived with the express or the implied consent 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.

The word "waived" is not very felicitous because once a valid notice is served the lease is terminated and an intention to create the lease as subsisting in spite of the notice has no effect unless there is a corresponding intention in the party noticed. In other words, the art of, as it were, reviving the lease has to be a bilateral act while the word "waiver" is used for what can be unilateral. Anyway, the word "waived" has come to stay and has been understood by all the Courts in the sense of a bilateral act showing mutual intention to treat the lease as subsisting notwithstanding the ostensible termination by notice earlier stated thus the effect of the second notice would depend upon the circumstances and further, firstly, whether the notice given really intends to treat the lease as subsisting and secondly, the notice for his part is agreeable to the new arrangement. Looked at that way no hard and fast rule can be laid down. Thus there is no point in the general assertions made in this class of cases on the part of the tenants that the issue of a second notice