- (1.) This case comes to us on reference by a learned Single Judge. For deciding the case only a few material facts need be stated.
(2.) We are concerned with the shop No. 185, Bazar Lal Khare, Bulandshahr. Ghaitanya Kumar and Prem Kumar are the owners of the shop. Tej Singh is the tenant of the shop. Hari Shankar is a partner of Tej Singh in the business carried on in the shop. Chaitanya Kumar and Prem Kumar obtained permission from the District Magistrate Bui-andshahr, for instituting a suit for eviction of Tej Singh. They gave notice to him to quit the premises. The notice was served on him on 16-10-1964. Thirty days' period mentioned in the notice expired on 16-11-1964. Thereafter they instituted a suit for his ejectment on 23-11-1964. Hari Shankar was also impleaded as a Defendant in the suit. After the institution of the suit the Plaintiffs accepted rent from Tej Singh for the months of October, November and December, 1964. This acceptance tempted the Defendants to deploy the doctrine of waiver in their favour. They pleaded that it amounted to the waiver of the notice to quit. An issue was framed on this point. The decision went against them. The point was re-canvassed before the Single Judge. He felt that as there is a conflict between two judgments of this Court, the matter should be decided by a larger Bench. In Permanand v. L. Murari Lal,1966 AWR 432the Plaintiff accepted rent of the premises on the expiry of the period given in the notice to quit as well as after the institution of his suit. It was, however, expressly said that acceptance was without prejudice to the suit already instituted. Sri Justice Singh held that in the circumstances of the case it could not be said that the Plaintiff had waived the notice to quit Under Section 113 of the Transfer of Property Act. In Ram Dayal v. Jwala Prasad,1966 AIR(All) 623 the Plaintiff accepted rent from the Defendant after the institution of the suit. Sri Justice Asthana held that by accepting the rent after the institution of the suit the Plaintiff had waived the notice to quit.
(3.) The facts of the two cases are materially different. So there is no apparent conflict between the decisions in these cases.;