- (1.) SUDHIR Narain, J. The petitioner seeks writ of certiorari quashing the order dated 8-2-1994 passed by the Judge Small Causes Court, Saharanpur, respondent No. 2 decreeing the suit of plaintiff-respondent and judgment dated 10-4-1997 passed by respondent No. 1 dismissing the revision against the aforesaid order.
(2.) THE petitioner was tenant of Shop No. 47 situate in Qasba Deoband, district Saharanpur on monthly rent of Rs. 30 and respondent No. 3 is landlord. Respondent No 3 filed S. C. C. Suit No. 12 of 1984 on 16th August, 1984 in the Court of Judge Small Causes Court, Saharanpur on the al legation that the petitioner failed to pay arrears of rent since 1st July, 1982. He had sent composite notice on 20th March, 1984 demanding arrears of rent and terminating the tenancy. THE petitioner did not comply with the notice. It was further stated that the shop in question was constructed in the year 1978 but it was assessed for the first time in the year 1982 and the provisions of U. P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 (hereinafter referred to as the Act) were not applicable. The petitioner filed written state ment. It was stated that he did not receive the notice alleged to have been sent by the landlord. He was tenant for the last 7 years and the provisions of the Act were ap plicable. It was denied that he was in arrears of rent since 1st July, 1982. He had paid rent by various money orders for the period which covered up to August, 1984. The Judge Small Causes Court held that the shop was constructed in the year 1978 but it was assessed for the first time in the year 1982. The provisions of the Act were not applicable. The petitioner was served with a notice. The petitioner had paid rent up to the period May, 1983. The suit was decreed for recovery of arrears of rent, ejectment and damages for use in oc cupation. The petitioner filed revision against this judgment. Respondent No. 1 has dismissed the revision by the impugned order dated 18-4- 1977. These judgments have been challenged in the present writ petition.
(3.) SRI L. N. Pandey, learned counsel for the petitioner, has not assailed the finding recorded by the Court below that the provisions of U. P. Act No. XIII of 1972 are not applicable. Learned counsel for the petitioner urged that after the notice was sent by the respondent No. 3 on 20th March, 1984, he had accepted Rs. 90/- as rent sent by the petitioner in June, 1984. The amount having been accepted after the notice was sent by respondent No. 3, the said notice shall be treated as waived. He has placed reliance upon the decision Ram Dayal v. Jwala Prasad, AIR 1966 Alld. 623; wherein the Court held that if the landlord accepts rent for a period subsequent to the notice, in that circumstances the notice can be treated as waived. A landlord can waive the notice as provided under Section 113 of the Transfer of Property Act which provides that the notice given under Section 113, Clause (h), is waived, with the express or implied con sent of the person to whom it is given, by any act on the part of the person giving it show ing an intention to treat the lease as subsist ing. The person claiming that the notice has been waived has to satisfy two essential in gredients (i) the intention of the landlord was to treat the lease as subsisting; and (ii) he had a knowledge of the fact that this conduct amounts to waiver.;