BHARGAVA, J. - (1.) THIS is a second appeal by the defendant in a suit for ejectment of a shop situated in Bajaja Bazar, Alwar.
(2.) THE suit was filed on the ground that the plaintiff required the shop for starting cloth business for his son who had discontinued his education and was not doing any other profitable work. The suit was resisted by the defendant and he denied that the shop was required for the bonafide use of the plaintiff for starting cloth business for his son. His plea was that the suit had been filed malafide after he (defendant) made an application for fixation of standard rent of the shop. He further pleaded that there was no genuine need for starting the cloth business and the plaintiff's son was working along with the plaintiff in the old business of 'kaserat'. The trial court dismissed the suit holding that the shop was not required reasonably and bonafide by the plaintiff. On appeal the learned Civil Judge disagreed with that finding and came to the conclusion that the plaintiff required the shop reasonably and bonafide for starting cloth business for his son. In this appeal learned counsel has raised the following contentions: 1. that the plaintiff has failed to prove that the tenancy was. determined by a valid notice. 2. that the notice to quit was waived by the plaintiff inasmuch as after the dismissal of the suit for ejectment by the trial court, he accepted a sum of Rs. 459/- from the defendant for arrears of rent due from 1. 7. 56 to 30. 11. 57 on 3rd December, 1957 and passed a receipt in his favour. 3. that the finding of the first appellate court that the shop was reasonably and bonafide required for the use of the plaintiff, was erroneous. It may be mentioned that the second objection mentioned above was not raised before the first appellate court. The trial court dismissed the suit on 28th October, 1957 and the amount of rent is said to have been paid on 3rd December, 1957. The plaintiff preferred the first appeal against the judgment of the trial court on 9th December, 1957. The defendant had, therefore, clearly an opportunity to take this objection before the first appellate court. But there is no mention of such objection having been taken in the judgment of the court below. Learned counsel has filed an affidavit to the effect that this objection was in fact raised before the first appellate court but the learned Civil Judge failed to give any finding on that point. This is however, difficult to believe. If the objection had been raised, there is no reason why it should not have been considered and decided by the learned Civil Judge. Even at the time of presenting this appeal, the receipt regarding the payment of rent was not submitted along with the memorandum of appeal and it was subsequently that this document was filed along with the application under order 41 rule 27 of the Code of Civil Procedure. This application is dated 12th November, 1960 almost an year after the presentation of this appeal. All that is said in the memorandum of appeal and this application is that the landlord accepted the rent of Rs. 459/- from 1. 7. 56 to 30. 11. 57 i. e. for 17 months on 3rd December, 1957 after the dismissal of the suit and before the filing of the appeal and acknowledged receipt in the bahi under his own signatures. When this application came up for orders learned counsel for the parties agreed that this may be heard along with the appeal itself. Learned counsel prays that this additional evidence may be taken and if necessary the case be sent back for further enquiry as the plaintiff has clearly waived the notice to quit. Sec. 113 of the Transfer of Property Act runs thus: - "a notice given under sec. 111, clause (h) is waived, with the express or 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. " It is clear from the language of this section that in order that there may he waiver of the notice to quit, there should he express or implied consent both of the person to whom the notice is given and the person who gives the notice to treat the lease as subsisting. It is a question of fact in each case whether a particular act amounts to waiver or not because waiver is a matter of the intention of the parties. In the present case appellant's contention is that since the plaintiff after the dismissal of the suit accepted the arrears of rent, he should be held to have waived the notice to quit. It is to be remembered that in Alwar where the property in dispute is situated, Rajasthan Premises ( Control of Rent & Eviction ) Act, 1950 is no force and the tenant is bound to pay the rent regularly so that he may no: become a defaulter liable to ejectment on that ground. Where a contractual tenancy is determined by a notice to quit and the tenant remains in occupation of the premises as a statutory tenant and the landlord accepts the rent, that fact alone does not amount to waiver on the part of the landlord. Although acceptance of rent by the landlord is prima facie good evidence to prove waiver, yet it does not necessarily prove his intention to waive the notice and some evidence to prove an agreement to treat the contractual tenancy as subsisting is necessary to constitute such a waiver. Learned counsel for the appellant referred to Kapur Chand vs. Kanji (1) where it was held that: "where the tenant in his written statement puts forward a tenancy of a period of ten years but was not able to establish it, by force of sec. 106 it being a tenancy of residential building the tenancy would be deemed to be from month to month. If in such a case the landlord accepted rent for seven months successively for the period after the notice to quit the circumstances goes to show that the landlord intended to treat the terminated tenancy as continuing. " No doubt this case supports the contention of the the learned counsel for the appellant and the learned Judges in this case regarded the fact of payment and acceptance of rent for seven months successively indicating the landlord's intention to treat the terminated tenancy as continuing. But the effect of the rent control legislation was not considered in that case. On the other hand there are large number of cases on which reliance has been placed by the learned counsel for the respondent viz ; Manindra Nath De Vs. Man Sing (2), Mahadeo Prasad vs. Smt. Sulekha Sarkar, (3), Pulin Behari Shaw vs. Miss Lila Day, (4), Pulin Behari Shaw vs. Miss Lila Dev (5), Zaffar Hussain vs. Mahabir Prasad and others, (6) Camaksha Prasad Mishra, Raipur vs. Smt. Parwatibai Sitambarnath and another, (7) and Narota Ram Salig Ram vs. Bhagwat Krishna and others (8), in which it has been held that in cases where the rent legislation is in force and the landlord after determining the tenancy by a notice to quit accepts the rent, that fact alone does not amount to waiver and does not create a fresh tenancy in favour of the tenant. In a recent judgment of the Supreme Court in Ganga Dutt Murarka vs. Kartik Chandra Das (9), in has been observed that: "it is, however, well settled that where a contractual tenancy to which the rent control legislation applies has expired by efflux of time or by determination by notice to quit and the tenant continues in possession of the premises, acceptance of rent from the tenant by landlord after the expiration or determination of the contractual tenancy will not afford ground for holding that the landlord has assented to a new contractual tenancy. " It was further observed in that case that : "of course there is no prohibition against a landlord entering into a fresh contract of tenancy with a tenant whose right of occupation is determined and who remains in occupation by virtue of the statutory immunity. Apart from an express contract, conduct of the parties may undoubtedly justify an inference that after determination of the contractual tenancy, the landlord had entered into a fresh contract with the tenant, but whether the conduct justifies such an inference must always depend upon the facts of each case. Occupation of premises by a tenant whose tenancy is determined is by virtue of the protection granted by the statute and not because of any right arising from the contract which is determined. The statute protects his possession so long as the conditions which justify a lessor in obtaining an order of eviction against him do not exist. Once the prohibition against the exercise of jurisdiction by the court is removed, the right to obtain possession by the lessor under the ordinary law springs into action and the exercise of the lessor's right to evict the tenant will not, unless the statute provides otherwise, be conditioned. " It may be observed that in the case before the Supreme Court, there was not only payment and acceptance of rent but besides that the landlord in his notice dated 10th October, 1950, had described the tenant as a 'monthly' tenant. Even under such circumstances, it was held that a fresh tenancy was not created. In view of this pronouncement of the Supreme Court, it is not necessary to discuss the other rulings cited by the learned counsel. It therefore, follows that mere acceptance of rent on 3rd December, 1957, by the plaintiff in this case would not amount to waiver of notice to quit. Besides this there is another important fact which shows that the plaintiff had no intention to waive the notice. Only 6 days after the acceptance of rent by him he filed an appeal against the decision of the trial court dismissing his suit for ejectment. If it had been the plaintiff's indention to treat the tenancy as subsisting, he would not have preferred any appeal against the judgment of the trial court. Further more, the conduct of the appellant also shows that he too did not treat the fact of acceptance of rent by the landlord as waiver on his part. In the first appeal as observed earlier no objection in this behalf was raised to defeat the plaintiff's suit for ejectment. Appellant has not mentioned the circumstances in which the landlord accepted rent after the dismissal of his suit by the trial court. It cannot therefore be held that the plaintiff after the determination of the tenancy by a notice to quit had waived it by accepting the arrears of rent. As for the first objection regarding the validity of the notice it may be mentioned that it was clearly mentioned by the plaintiff in the plaint that 15 days notice expiring on 28th February, 1957, was given to the plaintiff to vacate the shop in dispute. This allegation was simply denied by the defendant in his written statement and it was further added that the plaintiff had no cause of action on 28th February, 1957. Notice to quit was duly served on the defendant and he sent a reply which has been produced in this case by the plaintiff and is Ex. 1. In that reply it is admitted by the defendant that he had received the notice on 2nd February, 1957. The defendant did not produce the original notice received by him. It is true that the onus to prove that the tenancy has been determined by a proper notice as required by sec. 106 of the Transfer of Property Act, lies on the plaintiff but from the allegation in the plaint the reply sent by the defendant Ex. 1 and the pleas taken in the written statement, it can be safely said in this case that that onus has been discharged by the plaintiff. The objection regarding the validity of the notice was not raised by the appellant before the first appellate court even though the trial court gave finding against him. Lastly for the contention that the shop is not required by the plaintiff for starting a cloth business for his son, learned counsel has laid much stress on the point that the present suit was filed after this application for fixation of standard rent which indicates that the plaintiff in fact had no genuine requirement but only wanted to harass the defendant. The first appellate court has considered this aspect of the matter also and after carefully considering the entire evidence on record particularly the statement of the plaintiff's son, Ramjilal, has come to this finding that the shop is required for the reasonable and bonafide use of the plaintiff. It is clear from the record that the plaintiff's son had left his education and was not doing any business except that he was casually rendering some assistance to his father in his business. The son is sufficiently a grown up boy and requires to do some business. There is no force in the argument that he should join his father in his business and continue the same business as he has no experience of the cloth business. Previous experience is not a sine qua non for starting a new business. Experience is gained by doing the work itself. In my opinion the lower court has not committed any error of law which may call for any interference with the finding arrived at by it. There is no force in this appeal and it is hereby dismissed with cost. The appellant is allowed two months' time to vacate the shop. . ;