B. Upadhya, J. - (1.) THIS is a Defendant's appeal arising out of a suit for arrears of rent and ejectment.
(2.) THE Plaintiff alleged that the Defendant was a tenant on a monthly rent of Rs. 7/ - and after adjusting the payments made a sum of Rs. 10/ - and odd remained due in respect of the rent for the year ending the 31 -12 -1951. A notice of demand was sent on 8 -1 -1952 asking for this amount, but no payment was made Then the Plaintiff sent a notice dated 22 -2 -1952 recalling how the Defendant had net paid the arrears due inspite of demand and saying that the Plaintiff did not wish to retain him as a tenant any more and that the Defendant's tenancy was terminated as provided by Section 106 of the Transfer of property Act and that the Defendant should vacate the house after occupying it till the 31 -3 -1952. The Plaintiff further said in the notice that a sum of Rs. 31/3/3 would be due including the arrears already demanded in respect of the rent from the Defendant, which should also be paid. The Defendant appears to have remitted the amount by money order on 2 -3 -1952 but did not vacate the house. The suit giving rise to this appeal was then brought for eviction and for further arrears that had fallen due. The trial court decreed the suit for rent but refused to pass a decree for ejectment as in its view the Defendant was not a wilful defaulter inasmuch as the second notice dated 22 -2 -1952 had been complied with and the first dated 8 -1 -1952 had been waived by the Plaintiff, when she sent the second notice. On appeal the lower appellate court took the view that there was no waiver and passed a decree for ejectment as well. The only question to be decided in this appeal is as to whether by sending the notice dated 22 2 1952 the Plaintiff waived the right of instituting a suit for ejectment which had accrued to her when the Defendant failed to make payment within one month of the receipt of the notice dated 8 -1 -1952. Learned Counsel contended that the second notice contained a demand for a larger amount which included the amount which had been demanded by the first notice. Inasmuch as the Plaintiff sent this second notice she gave the Defendant an opportunity of making the payment again and the Defendant having availed of that opportunity by making the remittance mentioned above he could not be held to be a wilful defaulter and the suit for eviction therefore brought without the permission of the District Magistrate was not maintainable.
(3.) THE notice dated 22 -2 -1952 was read out by learned Counsel. In this notice the Plaintiff expressly, referred to her previous notice dated 8 -1 -1952 and asserted how the Defendant had failed to make payment as demanded by that notice. A period of more than one month had expired from the date on which the first notice had been served on the Defendant. The Plaintiff said in her second notice that she would not allow the Defendant's tenancy to continue and terminated it from the 1 -4 -1952 and asked the Defendant to vacate the house after remaining in possession till the 31 -3 -1952. She then further added that by the time the tenancy would come to an end Rs. 31/3/3 would become due and this should also be paid.;