JUDGMENT J.C. Gupta, J.
1. This is tenant's petition whereby the petitioner has challenged the correctness of the judgment and order dated 19.11.1992 passed by the respondent No. 2 and the order dated 28.11.97 passed by respondent No. 1.
2. The dispute relates to a shop which is admittedly in the tenancy of the petitioner plaintiff-respondent No. 3 filed suit for ejectment, arrears of rent and for mesne profit against the petitioner alleging that the provisions of Act No. 13 of 1972, (hereinafter referred to as the Act), were not applicable to the disputed shop and the tenant's tenancy has been duly terminated by a registered notice dated 5.12.88 which was got sent back by the tenant. Another notice was sent and after its service, when the petitioner did not respond, decree for eviction was claimed. The defence was that shop was not exempted from the operation of the Act and the notice dated 28.1.89 sent by the plaintiff was received and duly replied to. Before the trial court, the only issue which was pressed and framed was whether the provisions of the Act were applicable to the shop in question or not. The trial court decided the said issue in favour of the landlord by holding that the building in question was subject to assessment and the first assessment came into effect on 1.4.89. Taking this date as the date of construction of the shop in question, it was held by the trial court that the Act did not apply inasmuch as the period of more than 10 years had not elapsed since the date of construction of the shop. Aggrieved by the judgment of the trial court, the petitioner filed revision and it appears that before the revisional court it was argued on behalf of the petitioner that the notice of termination of tenancy stood waived as the plaintiff landlord has been accepting rent from the petitioner not only after the service of the notice but also during the pendency of the suit and revision, hence no decree of eviction could be passed against the petitioner on the basis of notice in question. The revisional court, however, did not accept the said contention and maintained the decree passed by the trial court by dismissing the revision by the impugned judgment dated 28.11.97.
3. Before this Court the learned counsel for the petitioner argued that as per the landlord's case notice of termination which was the basis of suit was served upon the petitioner in February, 1989 but rent up to June. 1992 and onwards has been accepted by the plaintiff and in order to prove this the petitioner filed rent receipts also which formed part of the record and in this view of the matter the notice stood waived and both the Courts below have committed a manifest error of law in passing the decree of eviction. He argued that the view of the revisional court that once the suit for eviction has been instituted, acceptance of rent would not amount to waiver of notice is against law and in support of his contention, learned counsel placed reliance on the case of Mangal Sen v. Smt. Krishna Devi, 1970 ALJ 803. In that case, the question of law referred to the Division Bench by a learned single Judge was whether acceptance of rent after the institution of the suit would amount to waiver of notice under Section 113 of the Transfer of Property Act (in short the T. P, Act') in a case where the U. P. (Temporary) Control of Rent and Eviction Act has no application. The Division Bench after taking note of several earlier decisions of the Court came to the conclusion ".....in our opinion though the institution of suit may be a circumstance to be taken into consideration while determining the intention of the lessor to react the lease as subsisting or not, it per se cannot be a condition or a circumstance which may debar the parties from treating the lease as subsisting by voluntarily waiving the notice to quit the property leased. Section 113 of the T. P. Act read with Section 116 makes it clear that the parties to the contract of lease have a right to continue the lease even after it comes to an end. If two persons have a right to create a lease at any time there can be no reason for holding that they cannot continue the lease by waiving the notice to quit. The notice to quit being the act of a party himself can always be waived by him. The effect of waiver on the suit will only be that the plaintiff will no longer be entitled to get the relief of ejecting the tenant. The suit for ejectment of a tenant is filed on the ground that the expiry of the notice to quit given under Section 111 clause (h) of the T. P. Act had rendered the possession of the lessee without title and the landlord with title seeks to eject him. But once the notice to quit is waived, that is to say withdrawn by accepting the rent subsequent to the date of expiration of the notice, the lease becomes subsisting and possession of the lessee becomes one with title and the decree for ejectment cannot be passed'. It was further observed in paragraph 5 of the said report : "The distinction between Section 112 and Section 113 of the T. P. Act also indicates that the institution of the suit does not take away the right of the parties to waive the notice to quit the property leased and to continue the lease. !n the case of forfeiture, the law permits the waiver of the forfeiture by acceptance of rent only till the suit for the ejectment of the lessee on the ground of forfeiture is instituted. Any acceptance of rent thereafter does not amount to waiver. On the other hand. Section 113 of the Act imposes no such condition and the institution of the suit cannot be a ground for debarring the parties to continue the lease. In our view a lessor has an unfettered right under Section 113 of the Act to waive the notice given by him under Section 111(h) of the T. P. Act, if the lessee expressly or impliedly consents to continue the lease and this right is not taken away by the institution of a suit to eject the lessee".
4. The next case relied upon by the petitioner's counsel is Shri Thakur Raj Rajeshwar Ji Maharaj Birajman Mandir. Hathras. District Aligarh and another v. 1st Addl District Judge. Aligarh and others, 1985 (3) ARC 485. In this case, the Court refused to interfere in the finding of the Court below that the petitioner by accepting rent during the pendency of suit waived notice for termination of tenancy and. therefore, the suit for ejectment could not be decreed. In that case admittedly after the suit was filed, the landlord filed an application under Section 7B of the U. P. Act No. 3 of 1947 in which he claimed rent from before the period of filing of suit till the date on which the application was made. After the filing of the said applicalion. the tenant deposited the entire arrears and as the petitioner landlord had himself filed the said application during the pendency of the suit, it was held that the notice stood waived by the own conduct of the landlord. Reliance is also placed on the decision in the case of Om Prakash Saxena v. Raja Babu Saxena, 1974 ALJ 364. Placing reliance on the Division Bench decision in the case of Mangal Sen (supra), it was held by a learned single Judge that it is evident that the real question to be determined in each case is one of the intention of the parties and the question has to be answered on the basis of evidence in each case. Where rent is tendered and is accepted under some mistaken belief or under a mistake of fact or under misrepresentation, it will run counter to the real intention of the landlord. Similarly in the case of Ram Dayal v. Jwala Prasad, AIR 1966 All 623, a single Judge of this Court held "Once it is found that the rent for a period subsequent to the notice to quit was accepted by the landlord-plaintiff it is that circumstance alone which has to be taken into consideration for finding out whether by so accepting the rent plaintiff intended that the relationship of landlord and tenant should subsist between the parties. That the defendant was unable 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 to quit". This decision was also approved by the Division Bench in the case of Mangal Sen (supra).
5. On the other hand, learned counsel for the respondents argued that in the present case, no such plea of waiver of notice was taken before the trial court and it was raised for the first time in revision and the revlsional court has rightly taken the view that the mere fact that in the receipts the amount which the landlord accepted was mentioned as rent could not be conclusive to hold that the landlord accepted the money from the tenant only as rent with an intention to treat the tenancy as subsisting. Learned counsel for the respondent placed reliance on the decision in New India Assurance Company Ltd. and others v. Ghanshyam Das and others, AIR 1997 AU 383. where Hon. S. K. Phaujdar, J.. held that to constitute waiver under Section 113, T. P. Act, mere lender and acceptance of rent are not sufficient. These two actions should show an intention on the part of the landlord to treat the lease as subsisting. Whenever there is acceptance by the landlord of any sum tendered by the tenant as rent the Court is obliged to look to such acceptance in the light of the last requirements of Section 113 as to whether this acceptance has shown an intention on the part of the landlord to treat the lease as subsisting. In that case the tenants were tendering the sum through cheques and the landlord asserted (hat the receipts were given to the tenant to show that those were accepted under protest and in faet by a subsequent notice the landlord had also informed the tenant in writing that all such earlier payments were accepted under protest and towards damages for unlawful occupation of the premises and not towards the rent. The suit was instituted immediately (hereafter. It was in these circumstances, that ft was held that it could not be a case of creation of a new tenancy nor acceptance of the cheques by the landlord did amount to waiver of notice and the circumstances indicated absence on the part of the landlord of any intention of continuing the tenancy.
6. In the case of Rani Krishna and others v. Jhaman Das, 1986 (I) ARC 26, it was held that the waiver is an intentional relinquishment of a known right. There can be no waiver unless the person against whom the waiver is claimed had full knowledge of his rights and of facts enabling him to take effectual action for the enforcement of such rights. No question of waiver arises after the landlord has brought a suit on the basis of a valid notice given for determination of the lease. When the landlord has after termination of the tenancy of a tenant instituted a suit for his ejectment and is pursuing it, his intention is known, namely, that he does not wish the tenant to continue as a tenant of the accommodation. Simply because after the institution of the suit the rent for the period subsequent to the date of termination of the tenancy deposited by the tenant is withdrawn by the landlord it cannot be said that there was an intention to waive the notice. In the case of Basant Lal and another v. State of U. P. and another, 1981 ARC 70, it was held that when rent was accepted under protest there is no waiver as there was no intention to do so. In that case there was no evidence at all to show the exact date when the rent was accepted or at any rate the fact that the rent was accepted between the date when notice was sent and the date when the lessee was asked to vacate, it was on these facts that it was held that there was no waiver of the notice. Furthermore, it was evident from the evidence that the lessee was treated as a trespasser from the date of notice and the rent which was accepted was under protest, therefore, it was really not the rent but mere compensation for wrongful use and occupation. In these circumstances the Supreme Court upheld the view of the High Court that it could not amount to waiver of notice.
7. Reliance has also been placed on Surendra Prakash v. Banwari Lal, 1979 AWC 440, wherein it was held that under Section 113 of the T. P. Act it is requisite to establish that there was an intention to treat the tenancy as subsisting. Mere acceptance of rent is by itself not in every case sufficient to bring the case within the purview of Section 113. In that case both the Courts below had held that it was not established that the plaintiff had agreed to treat the tenancy as subsisting or to treat the defendant as tenant and that being a finding of fact did not require intervention of this Court.
8. Prom the above decisions, ft is thus clear that once lease has been determined by serving requisite notice of termination, a contractual relationship thereafter can arise only with the consent of both the parties and the irrevocable character of the election must follow in either case. A waiver of notice does not ipso facto result from any act of omission or commission on the part of the lessor, but the act must clearly show the lessor's intention to treat the lease as subsisting. It is the intention of the lessor to treat the lease as subsisting which is predominant and deciding factor in bringing about a waiver and not any particular act by itself. Mere receipt of money for the period subsequent to the notice to quit would not amount to waiver of notice unless it could be shown that the said money was knowingly accepted by the lessor as rent and with the intention to treat the lease as subsisting. The fact of merely issuing rent receipts divorced from the circumstances of the case without taking into consideration as to what was the intention of the landlord in issuing those receipts would not lead to a necessary inference that the notice to quit has been waived by the lessor. It is equally true that the notice to quit can be waived either expressly by the lessor or it can also be inferred from the circumstances of the case that the landlord has impliedly consented to treat the tenancy as subsisting. No hard and fast formula can be framed in this connection and the intention of the parties has to be gathered with reference to the own facts of each case. No act by itself and of its own force, without reference to the intention of the parties can bring about a waiver. There should be either an express contract or conduct of the parties justifying the inference that, after the determination of tenancy, the intention of the landlord was that the occupier of the premises be allowed to continue as a tenant and whether conduct of the parties Justify such an inference would undoubtedly turn upon the facts and circumstances of each case. Even the use of the word 'rent' in receipts issued by the landlord cannot be decisive of the question and the Court may still hold having regard to the circumstances of the case that the money tendered by the tenant was not accepted as rent by the landlord with an intention to treat the lease as subsisting and the same was accepted under a mistaken belief or bona fide mistake or as the amount of damages for wrongful use and occupation and there was no intention to allow the person concemed's occupation as lessee.
9. In the backdrop of the above principles, the merits of the impugned judgments may now be tested. Learned counsel for the petitioner argued that in the present case, evidence in the form of rent receipts issued by the landlord respondent had been brought on record of the revisional court by way of additional evidence. Those receipts clearly show that the landlord has been regularly accepting rent from the petitioner throughout the pendency of the suit and even thereafter. He also pointed out that it was specifically stated by the petitioner in his statement before the trial court that rent up to 2.6.1992 has been received by the landlord and in the absence of any evidence to the contrary, the notice in question should have been held to have been waived by the landlord respondent. It was also argued that the inference of the revisional court that the landlord had accepted money from the petitioner as damages for the illegal use and occupation is conjectural and based on no evidence whereas the evidence adduced from the side of the petitioner was to the effect that the money was accepted by the landlord as rent of the shop in question. A perusal of the impugned judgment of the revisional court would show that the learned Judge deciding the revision was swayed away by the circumstance that the suit for ejectment had been instituted and continued by the landlord and the continuance of suit manifested the intention of the landlord that he never assented to the continuance of the tenancy. As already indicated above, it is the intention of the lessor to treat the lease as subsisting which is pre-dominant and deciding factor for considering the question whether or not the notice to quit has been waived by him by acceptance of money as rent and the institution of suit can only be one of the circumstance but not the sole criterion to be taken into consideration for determining the question of waiver. Institution of suit per se cannot lead to an irresistible inference of the landlord's intention of not continuing the lease as subsisting. When in the present case, plea of waiver was allowed to be raised before the revisional court and additional evidence in the form of rent receipts had also been brought on record which even covered the rent of the period of pendency of revision, in order to arrive at a Just conclusion, the case should have been remanded to the trial court for recording a specific and clear cut finding on the question as to what was the real intention of the landlord in accepting the sum from the tenant-petitioner and whether the same was not accepted as "rent" but only, as damages for illegal use and occupation and whether or not the receipts were Issued by the landlord under some mistaken belief and bona fide mistake. Answer to all these questions depended upon the material brought on record and could not have been answered in favour of a party simply on the ground of pendency of suit without making reference to the evidence and circumstances appearing in the case. The argument of the learned counsel for the petitioner that the revisional court should have recorded a finding in favour of the petitioner on the question of waiver of notice as there was uncontroverted evidence of the petitioner that the landlord had accepted rent from him even of the period subsequent to the notice to quit cannot be accepted because the plea of waiver was raised before the revisional court only and the plaintiff respondent had no opportunity to lead evidence on the above question before the trial court. The question of waiver of notice has not been decided by the revisional court in right perspective and on the well-established principles of law. In the circumstances and for the reasons stated above, the order of the trial court as well as of the revisional court are set aside and the case is sent back to the trial court for deciding the question of waiver of notice afresh in the light of observations made above and in accordance with law after permitting the parties to lead evidence on the said question. It is, however, made clear that findings on other issues involved in the case shall not be touched. Since the matter has become old, the trial court is directed to decide the case expeditiously, preferably within a period of two months from the date a certified copy of this order is produced before it.
10. For the reasons stated above this writ petition is allowed with no order as to costs.