J.S. Trivedi, J.
1. This plaintiff's Second Civil Appeal is directed against the judgment and decree of II Additional Civil Judge. Agra. The appellants are the legal representatives of the plaintiff Padam Chand Garg. They had filed the suit for arrears of rent and ejectment. The relief of electment was claimed on the basis of default. It is not disputedthat a composite notice of demand and determination was served on the defend-and-respondent on 13-7-67. The defendant-respondent remitted the arrears on 10-8-1963. From the record it appears that 11th and 12th of August, 1963 were postal holidays and when the money order was offered after 14th August, 1968. it was refused by the landlord. The suit out of which this appeal arises was then filed by Sri Padam Chand Garg.
2. The defendant-respondent contested the suit and contended that nodefault was committed. The trial Courtdecreed the plaintiff's suit. The lower appellate Court allowed the appeal holdingthat the money having been despatchedwithin 30 days, the defendant could notbe a defaulter. The plaintiff thereuponcame to this Court in Second Appeal. Second Appeal was heard on 17th of March,1971 and was allowed. It was subsequently learnt that the plaintiff had already died on 24th of February. 1971.The judgment passed by me on 17thMarch 1971 was then recalled and the appeal was directed to be taken after thesubstitution proceedings were over. Appellants who are the heirs of deceasedPadam Chand Garg have been substitutedas legal representatives of the deceasedappellant. An application under Order 41,Rule 27, Civil P. C. has been moved inthis Court on behalf of the respondent.By the application some new facts anddocuments are sought to be consideredwhile disposing of the appeal. No counter-affidavit has been filed to the application. The papers sought to be considered are relevant and as such I haveallowed the application. On the basis ofthe documents filed today it has been contended by the learned counsel for therespondent that the landlord renewed thetenancy by acceptance of rent andwaived the notice of determination,whereas the learned counsel for the appellant has contended that the mere acceptance of rent even for a period subsequent to the date of notice would notamount to waiver of notice. His contention is that the appellant had all alongbeen prosecuting his Second Appeal and,therefore, it cannot, be said that he intended to waive the notice of termination. Reliance has been placed by himon Moti Lal v. Basant Lal. AIR 1956 All175; Ganga Dutt Murarka v. KartikChandra Das. AIR 1961 SC 1067; Mangi-lal v. Sugan Chand Rathi. AIR 1965 SC101; Permanand v. L. Murari Lal, 1966All LJ 1074 and Faiyaz Ahmad v BriiNandan Lal Goyal, 1969 AH LJ 365.
3. The relevant facts on the basis of which waiver is sought are that on 12-9-1970 during the pendency of the Second Appeal in this Court, a notice was given on behalf of Sri Padam Chand Gargto the defendant asking him to pay arrears of rent due till 31-8-1970 within a month of the receipt of notice of demand and to vacate the premises thereafter. It was also mentioned in the notice that in case the tenant failed to pay the arrears, the suit for recovery of rent and ejectment shall be filed against him. On receipt of the notice dated 12-9-1970. the tenant paid the arrears and obtained a receipt which is Annexure 'B' to the affidavit accompanying the application moved under Order 41, Rule 27, Civil P. C. It appears that subsequently the tenant again did not pay the rent. Another notice was thereafter given on 2-2-1971 demanding arrears for the period commencing from 1-9-1970 to 31-1-1971 and asking the tenant to pay the arrears within 30 days, failing which he shall be liable to ejectment. These notices, according to the learned counsel for the respondent, amount to waiver of the first notice of termination and creation of a fresh tenancy in favour of the defendant. In my opinion, the contention of the learned counsel for the respondent is correct. In these notices the status of the defendant as tenant has been admitted and the amount has been claimed as arrears of rent. These are actually composite notices demanding arrears of rent and determination of tenancy on the ex- piry of one month. There was no occasion to acknowledge defendant to be a tenant and state expressly that he was to vacate the premises on the expiry of 30 days. The language of the first notice Exs. A is also significant. The suit for ejectment had already been dismissed. The landlord's Second Appeal was pending in this Court. In para 2 of the notice it is mentioned that there are little chances of success of his appeal and that he would withdraw the same. Having written to the tenant that he would withdraw the appeal and the tenant should give him the rent due till that date, the only inference that can be drawn is that the landlord waived the notice of determination of tenancy and in any event accepted the status of the defendant as that of a tenant. Tenancy need not be created by express words; it can be implied by the conduct also. In the instant case not only the rent was demanded but notice demanding rent and determination of tenancy has been given. It is also clear by the second notice that the landlord was conscious that the tenant having paid rent on receipt of the first notice, a second notice of demand and determination of tenancy would be necessary for the period for which the tenant was in arrears.
4. Moti Lal v. Basant Lal. AIR 1956 All 175 was a suit in respect of a shop which was owned by two brothers.After the suit was decreed by the first Court, one of the brothers compromised with the tenant and on the basis of the compromise it was argued that the notice of termination was waived. It was held by this Court that :--
'As the interest of both the lessors were joint, one of the lessors was incompetent either to waive the notice cut to renew the lease.'
The facts of that case, therefore, were quite distinguishable.
5. Ganga Dutt Murarka v. Kartik Chandra Das. AIR 1961 SC 1067 was a case where it was laid down that :--
'There is. however, 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 whe-ther the conduct justifies such an inference must always depend upon the facts of each case.' It was also laid down in that case that : '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 by virtue of statutory protection, acceptance of rent from the tenant by the 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.'
6. The general observations made in the above case lay down that the nature of the possession of a tenant subsequent to the date of determination will depend upon the facts of each case. The nature of the possession of the tenant in the aforesaid case was that of a statutory tenant and what their Lordships of the Supreme Court laid down was that while the tenancy stood determined, the tenant could not be ejected on account of the protection granted to him under the statute of the State.
7. In 1966 All LJ 1074. acceptance of rent held not waiver because the acceptance was in the express words that the amount has been accepted without prejudice to his suit. While interpreting the said words, it was held by this Court that :--
'There is neither express nor implied consent of the landlord to treat the lease as subsisting.'
8. The facts of the case AIR 1963 SC 101 are also distinguishable. That was a case where a composite notice of demand and determination of rent wasgiven. The composite notice was held to be bad under Section 106 of the Transfer of Property Act and their Lordships of the Supreme Court held that even though the landlord acquired the right to file the suit, the relationship of landlord and tenant continued till the tenancy was determined and no question of waiver would arise when the initial notice was bad under Section 106 of the Transfer of Property Act and the tenancy was not in law determined.
9. The last case on which reliance has been placed 1969 All LJ 365 also does not help the appellant. All that it lays down is 'The mere acceptance of rent which was due to the landlord, particularly when it is soon followed by a notice to quit based on the default of the tenants under Section 3 (a) of the U. P. (Temporary) Control of Rent and Eviction Act cannot be held to amount to waiver on his part to sue.'
10. The circumstances of the present case as stated above lead to no other conclusion than to the fact that the status of the defendant-respondent as a tenant was expressly recognised and in any event a new tenancy was created by giving notice Annexure 'A' to the affidavit of the application under O. 41, R. 27, Civil P. C.
11. The result, therefore, is that this appeal has no force and is accordingly dismissed with costs.