- (1.) THIS plaintiff's Se cond 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 defend-and-respondent on 13-7-67. The defend ant-respondent remitted the arrears on 10-8-1963. From the record it appears that llth 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 ap pellate 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. Se cond Appeal was heard on 17th of March, 1971 and was allowed. It was subse quently learnt that the plaintiff had al ready died on 24th of February. 1971. The judgment passed by me on 17th. March 1971 was then recalled and the ap peal was directed to be taken after the substitution proceedings were over. Ap pellants 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 coun ter-affidavit has been filed to the appli cation. The papers sought to be con sidered are relevant and as such I have allowed the application. On the basis of the documents filed today it has been con tended 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 ap pellant has contended that the mere ac ceptance of rent even for a period sub sequent to the date of notice would not amount to waiver of notice. His conten tion is that the appellant had all along been prosecuting his Second Appeal and, therefore, it cannot be said that he in tended to waive the notice of termina tion. 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; Mangi lal 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. The relevant facts on the basis of which waiver is sought are that on 12-9-1970 during the pendency of the Se cond 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 ob tained a receipt which is Annexure 'B' to the affidavit accompanying the applica tion 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, ac cording 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 for the respondent is cor rect. In these notices the status of the defendant as tenant has been admitted and the amount has been claimed as arrears of rent. These are actually com posite notices demanding arrears of rent and determination of tenancy on the ex piry of one month. There was no occa sion to acknowledge defendant to be a tenant and state expressly that he was to vacate the premises on the expiry of 30 days. The language of the first notice Exs. A is also significant. The suit for ejectment had already been dismissed. The landlord's Second Appeal was pend ing in this Court. In para 2 of the notice it is mentioned that there are little chances of success of his appeal and that ; he would withdraw the same. Having 'written to the tenant that he would with draw the appeal and the tenant should give him the rent due till that date, the only inference that can be drawn is that the landlord waived the notice of deter mination of tenancy and in any event ac cepted the status of the defendant as that of a tenant. Tenancy need not be creat ed by express words; it can be implied by the conduct also. In the instant case not only the rent was demanded but notice demanding rent and determination of tenancy has been eiven. It is also clear by the second notice that the land lord was conscious that the tenant having paid rent on receipt of the first notice, a second notice of demand and determina tion of tenancy would be necessary for the period for which the tenant was in arrears.
(3.) MOTI Lal v. Basant Lal, AIR 1956 All 175 was a suit in respect of a shop which was owned by two brothers. After the suit was decreed by the first Court, one of the brothers compromised with the tenant and on the basis of the compromise it was argued that the notice of termination was waived. It was held by this Court that:- "As the interest of both the lessors were joint, one of the lessors was in competent either to waive the notice at to renew the lease." The facts of that case, therefore, were quite distinguishable.;