- (1.) THIS second appeal, under Section 100 of CPC, is preferred against the Judgment and decree dated 30/05/2014, passed by the Additional District Judge No. 1, Hindaun City (Karauli) (hereinafter referred to as 'the appellate Court') in civil regular appeal No. 12/2014 whereby, the appellate Court confirmed the Judgment and decree dated 28/03/2014 passed by the Civil Judge (J.D.), Hindaun City (hereinafter referred to as 'the trial Court'), in civil suit No. 35/2009 and dismissed the appeal filed by the appellant -defendant.
(2.) THE brief facts giving rise to this appeal are that the respondent -plaintiff filed a suit for eviction and permanent injunction wherein, it is stated that the defendant is the tenant of a shop described in para No. 1 of the plaint since 01/01/1991 on a monthly rent of Rs. 300/ -. The rent was being enhanced from time to time, and is being paid @ Rs. 500/ - per month since 01/01/2008. The suit was filed by the respondent -plaintiff on the ground of sub -letting, nuisance and personal necessity. It is stated that the tenancy in question was duly terminated by notice under Section 106 of Transfer of Property Act, 1882 (for short 'the Act') Ex. -1 dated 03/07/2009 which was duly served on the appellant -defendant on 04/07/2009 and the same was replied to by the appellant -defendant on 27/07/2014.
(3.) THE suit was resisted by the appellant -defendant by filing the written statement, in which he admitted the tenancy and denied the other allegations made in the plaint. The learned counsel for the appellant, Shri. S.C. Gupta, has submitted that he is not pressing both the substantial questions of law as framed on page No. 7 of the memo of appeal. The sole contention of the learned counsel for the appellant -defendant is that the respondent -plaintiff has waived the notice given by him under Section 111 (h) of the Act impliedly by accepting the rent which became due in respect of the property since the expiration of the notice and as such, the respondent -plaintiff is not entitled to a decree of eviction under Section 111 (h) read with Section 106 of the Act, in view of the provisions of Section 113 of the Act. In support of his contention, he relied upon Kanta Manocha vs Hindustan Paper Corpn, 1998 74 DLT 493 and Calcutta High Court.;