JUDGMENT Anjani Kumar, J.
1. By means of present writ petition under Article 226 of the Constitution of India, the petitioners-tenant have challenged the orders passed by the trial court and affirmed by the revisional authority, whereby the suit filed by the landlord-contesting respondent was decreed and on revision, the revisional court has dismissed the revision filed by the petitioners-tenant.
2. In short, the facts of the case are that the landlord-respondent No. 3 filed JSCC Suit No. 69 of 1994 for ejectment and recovery of rent and damages from the petitioners-tenant before the prescribed authority on the ground that the tenant is defaulter in payment of rent and further that the tenant has sub-let the premises in question without permission in writing after terminating the tenancy of the petitioners-tenant by serving a notice. The aforesaid suit was decreed by the trial court on 30th March, 1996. Aggrieved thereby, the tenant-petitioners preferred a revision under Section 25 of the Provincial Small Cause Courts Act. The revisional court has allowed the revision and remanded back the matter to the trial court vide its order dated 19th September, 1998, copy whereof is annexed as Annexure-6 to the writ petition, with a direction to decide the suit afresh in the light of the observations made by the revisional court. After remand, the trial court vide its judgment and order dated 9th February, 2000, copy whereof is annexed as Annexure-7 to the writ petition, decreed the suit. Thereafter, the petitioners-tenant preferred a revision before the revisional court under Section 25 of the Provincial Small Cause Courts Act and the revisional court vide its order dated 17th February. 2001, dismissed the revision, copy whereof is annexed as Annexure-8 to the writ petition, thus this writ petition.
3. Learned counsel appearing on behalf of the petitioners-tenant submitted that from the material on record, it is apparent that after serving the notice terminating the tenancy, the landlord accepted the rent, which was sent by the wife of the petitioners-tenant towards the rent for the period 1st August, 1989 till 31st August, 1994 by Money Order and it is specifically mentioned in the Money Order Coupon in vernacular that I am sending you the rent for shop No. 131, Laxmanganj, Gandhi Road, Khurja, District Bulandshahr for the period from 1st August, 1989 till 31st August, 1994 (shop in dispute), please accept the same and send the receipt for the same. The aforesaid Money Order is addressed to the landlord with the address of the landlord and the same was accepted by the landlord. On the strength of the acceptance of the aforesaid Money Order, it was argued on behalf of learned counsel appearing for the petitioners-tenant that by accepting the rent for the subsequent period during the pendency of the suit by the landlord, the notice terminating the tenancy stood waived and since Sub-Section (1) to Section 20 of the U. P. Act No. 13 of 1972 provides that a suit contemplated under the aforesaid section can be filed only after terminating the tenancy, the same was liable to be dismissed. The relevant portion of Sub-section (1) to Section 20 of the Act is reproduced below :
"20. Bar of suit for eviction of tenant except on specified grounds.-(1) Save as provided in Sub-section (2) no suit shall be instituted for the eviction of a tenant from a building, notwithstanding the determination of his tenancy by efflux of time or on the expiration of a notice to quit or in any other manner :
Provided that nothing in this Sub-section shall bar a suit for the eviction of a tenant on the determination of his tenancy by efflux of time where the tenancy for a fixed term was entered into by or in pursuance of a compromise or adjustment arrived at with reference to a suit, appeal, revision or execution proceeding, which is either recorded in Court or otherwise reduced to writing and signed by the tenant."
4. In these circumstances, it is submitted on behalf of learned counsel appearing for the petitioners-tenant that the trial court as well as the revisional court has committed manifest error of law in decreeing the suit and dismissing the revision filed by the petitioners-tenant. It has also been submitted by learned counsel for the tenant that the notice terminating the tenancy was issued under the instruction of Narendra Kumar, the brother of the landlord Brijendra Kumar and not by the landlord. This notice is dated 16th February, 1994, which has been served on the petitioners-tenant on 17th February, 1994. It is not disputed that the landlord has executed a power-of-attorney in favour of Narendra Kumar on 23rd August, 1995, therefore, the notice terminating the tenancy issued by the landlord was not a valid notice and has not been issued by the person authorised to issue, as neither Narendra Kumar is the landlord, nor he had any power-of-attorney on the date when the notice terminating the tenancy was issued. It is further submitted that it is incorrect to say that the petitioners-tenant has sub-let the premises in question to respondent No. 5. The trial court found that the notice terminating the tenancy was issued under the instruction of the landlord Brijendra Kumar and not under the instruction of Narendra Kumar, the power of attorney holder, therefore, the contention that at the time when the notice was issued by Narendra Kumar, there was no power of attorney in favour of Narendra Kumar is hardly relevant. It is of significance that notice, which has been issued by the counsel Sri Gaur clearly specifies that it is issued on behalf of Brijendra Kumar, thus there is no force in the contention of learned counsel appearing on behalf of the tenant. So far as the question of waiving they notice on the ground that the rent has been accepted by the landlord, which was sent by the wife of the petitioners tenant through Money Order, the explanation has come forward on behalf of the landlord that this Money Order was accepted by the landlord under misconception and that is why he has issued the notice that money can be refunded and this may not amount to be acceptance of the rent. The fact that the Money Order has been accepted by the landlord and further fact that the Money Order was addressed to the landlord and coupon contains the matter, as stated above, clearly demonstrates that the notice issued by the landlord is definitely an afterthought. In this view of the matter, since the landlord has accepted the rent after the service of the notice, in view of the settled law the notice stood waived. Thus, in view of the settled law since there was no notice, the suit cannot be filed and should have been dismissed by the trial court. The trial court as well as the revisional court has given its own reasoning based on the explanation submitted by the landlord after accepting the Money Order, which was sent, has not taken into account the fact that the same is an afterthought and secondly that recital in the Money Order coupon is categorical and clear that the rent is being sent for the premises in question, thus the landlord cannot escape from the responsibility of accepting the Money Order and thus the consequence . is that the notice which has already been issued under Section 106 of the Transfer of Property Act stood waived. In view of the aforesaid fact, in my opinion, the trial court as well as the revisional court has committed error, which is manifest on the face of record in decreeing the suit and affirming the decree by the revisional court.
5. In this view of the matter, this writ petition succeeds and is allowed. The order dated 9th February, 2000, passed by the trial court and the order dated 17th February, 2001, passed by the revisional court Annexures-7 and 8 to the writ petition are quashed. The parties shall bear their own costs.