JAIN, J. - (1.) THIS is an appeal by the tenant arising out of a suit in ejectment and for recovery of mesne profits.
(2.) THE suit shop is situate in the town of Udaipur. It was constructed in October, 1968. Basanti Lal admitted Jagdish Chandra as a tenant of this shop on and from 18th of January, 1969 under the rent note of that date Ex. 1. THE agreed rent was Rs. 150/ per month. Under clause 7 of the agreement the tenancy was fixed for one year but under clause 8 it was stipulated between the parties that the suit shop was liable to be vacated after one month's notice. On January 16, 1970 Basanti Lal determined the tenancy of Jagdish Chandra by notice with effect from February 18, 1970. THE tenant having failed to vacant the suit shop Basanti Lal brought the present suit under appeal on April 24, 1970, for ejectment and for recovery of Rs. 300/- as damages for use and occupation of the suit shop. The suit was opposed by Jagdish Chandra by his written statement submitted on 4th Nov. , 70, on various grounds. The case was tried by the Additional Civil Judge, Udaipur, on various issues arising between the parties. The trial Judge held that the suit shop was on rent with the defendant on and from January 18, 1969. The construction of the shop was completed in the month of October, 1968. The shop was given on rent for a period of one year yet there was a contract to the contrary that the tenancy was terminable by one month's notice and the notice in the suit was valid. It was also held that though the real owner of the property was Pushpa Devi w/o Basanti Lal but the tenancy was created by Basanti Lal and Jagdish Chandra ac-cepted the same and he took possession in consequence of the said tenancy. The suit was, thererefore, maintainable. The learned trial Judge was also of the opinion that provisions of sec. 13 of the Rajasthan Premises (Control of Rent & Eviction) Act, 1950, (hereinafter referred to as 'the Act') were not applicable to the suit premises. The suit was eventually decreed on January 9, 1974. Being dissatisfied with this decree Jagdish Chandra went in appeal but his appeal was turned down by the learned District Judge, Udaipur. Hence this second appeal. The principle contention raised by Mr. Bhandari on behalf of the appellant is that after the filing of the suit the landlord accepted the rent from 18-2-1970 to 18-8-1970 and it thus waived the notice. Placing reliance on sec. 113 of the Transfer of Property Act it has been argued that the plaintiff is not entitled to seek eviction of the tenant. This contention was also raised before the learned lower appellate court. But it did not find favour with him. Reference has been made to the receipt at page B-16 on the record of the trial Court to show that a sum of Rs. 915/75 was paid by Jagdish Chand and received by Shri Anand Swaroop for the plaintiff Basanti Lal. It was also pointed out that the rent was received by the plaintiff subsequent to 18th August, 1970. On the other hand, Mr. Parikh learned counsel for the appellant sub-mitted that the acceptance of rent did not amount to waiver within the meaning of sec. 113 of the Transfer of Property Act. His submission is that after the quit notice the plaintiff instituted the suit for ejectment of the tenant from the suit shop. The tenant made the payment under the supposed impression that he is liable to make the payment under sec. 13 (4) of, the Act and as such on the facts and circumstance of the case it cannot be said that the plaintiff waived the notice. Particularly in view of the fact that he continued to pursue the suit. On behalf of the appellant reliance has been placed on Bengal Nagpur Rai-way Company Limited vs. Balmukunda Biseswar Lall (l) Their Lordships were deal-ing with the question of acceptance of rent due after forfeiture from the lessee. It was observed that notwithstanding the protest of the lessor that such acceptance is without prejudice to his right to insist upon forfeiture operates as a waiver of notice to quit. The case on hand is not a case of forfeiture. Sec. 112 of the Transfer of Property Act provides for waiver of forfeiture under sec. 111 (g) whereas sec. 113 deals with the waiver of notice to quit given under sec. 111 (h); There is a marked difference between the two provisions. Waiver of notice to quit does not like waiver of forfeiture depend upon the election of one part, but upon consent of both. This difference is manifested by the use of the words in sec. 113 "with the express or implied consent of the person to whom the notice is given". This is not the case within sec. 112.
(3.) ANOTHER case on which reliance has been placed is Manicklal Dey Chaudhuri vs. Kadambini Dassi (2 ). In this case notice to quit was given to the tenant, but on his failure to vacate the premises the suit was filed. During the pendency of the suit rent was accepted by the landlord. Buckland J. held that where rent is accepted after the notice to quit whether before or after the suit is filed, the landlord thereby shown an intention to treat the lease as subsisting. His Lordship met the argument of the other side by the following observations: "one cannot logically say that the fact of accepting rent by itself shows an intention to treat the lease as subsisting if no suit has been filed and a different intention if a suit has been filed. The intention shown by the act itself must be the same in either case. Therefore by accepting the rent, the plaintiff in my opinion showed an intention to treat the lease as subsisting and acceptance of rent was waiver of the notice to quit notwithstanding the fact a suit had already been filed for the purpose of ejecting the tenant. It has also to be observed that u/s. 112 the acceptance of rent after suit has been exactly provided for, and it may well be argued that bad it been intended that acceptance of rent after suit should not operate as a waiver in the case of a notice to quit one would have expected that a proviso similar to that in S. 112 would have been incorporated in S. 113. " Following the Calcutta decision is the case Ram Dayal vs. Jawala Prasad (3 ). Asthana J. , who was dealing with the similar question observed as follows: "unless once it is found that the rent for a period subsequent to the notice to quit was accepted by the plaintiff landlord it is that circumstances alone which has to be taken into consideration for finding out whether by so accepting the rent the plaintiff intended that the relationship of landlord and tenant should subsist between the parties. That the defendant was un able to satisfy the Court by his evidence affirmatively that there was an agreement arrived at for continuing the tenancy, is immaterial. It is not the diligent prosecution of the suit which is material in judging whether the plaintiff as landlord intended to continue the tenancy of the defendant, what is material is the acceptance of rent by him for a period subsequent to the notice quit. " Mr. Bhandari also referred to Shekh Peer Bux vs. Mowzah Ally (4), and Jagabandhu Sahu vs. Surendra Nath Bhuyan (5) to thus effect. In these cases as well it was held that if the rent has been accepted by the landlord from the tenant during the continuance of the suit payment and acceptance was held to waive the notice to quit. ;