Amitav Banerji, J.
1. This is an appeal by the defendant. Plaintiff's suit for the ejectment of the defendant and for recovery of mesne profits was decreed by both the courts. The only question raised in this appeal is one of waiver of notice to quit.
2. Learned counsel for the appellant urged that the plaintiff by accepting rent for a period after the determination of tenancy had impliedly waived the notice to quit. The notice to determine the tenancy was served on the 1st February, 1967. The tenancy was to stand determined from the 1st March, 1967. The defendant had sent a money order in the sum of Rs. 5.50 to the plaintiff on the 15th February, 1967 which was accepted by the defendant. It was urged that this sum represented the rent for the month of March, 1967. It may also be relevant to mention that the suit was filed on the basis of permission granted by the Commissioner and the suit was filed by the plaintiff on 10th of March, 1967.
3. The contention of the learned counsel for the respondent was that there was no waiver. No rent was accepted after the determination of the tenancy and there was no intention to waive the notice for soon after the tenancy stood determined the suit for the eviction of the defendant was filed. A plea was taken by the defendant, though unsuccessfully, that the words 'rent for March' were subsequently interpolated in the money order receipt and it was not there when it was sent. Evidence was led to show that the defendant had remitted the rent of four months November, December, January and February, earlier.
4. In support of the rival cases certain decisions of this Court and of the Supreme Court were cited. Learned counsel for the appellant cited the case of Ram Dayal v. Jawala Prasad. (AIR 1966 All 623) decided by a single Judge of this Court. In this case it was observed: ''Once it is found that the rent for a period subsequent to the notice to quit was accepted by the plaintiff it is that circumstance alone which has to be taken into consideration for finding out whether in so accepting the rent the plaintiff intended that the relationship of the landlord and tenant subsisted between the parties. It was immaterial that the defendant was unable to satisfy the Court by his evidence affirmatively that there was an agreement arrived at for continuing the tenancy.
5. The next case cited was Mangal Sen v. Smt. Krishna Devi, (1970 All LJ 803). In this case it was held that 'if a lessor accepts as rent the amount tendered by the lessee it indicates an intention on the part of the lessor to waive the notice. Such an act on the part of the parties to the lease shows an intention to treat the lease as subsisting which impliedly means that the notice under Section 111(h) of the Act stands waived.' The Division Bench approved the reasoning given in the case of AIR 1966 All 623 on the point of there being a waiver if the rent was accepted even after the institution of the suit. We are not concerned with that question in the present case. The question before the Division Bench was answered in the following words:
'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 Transfer of Property 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.'
6. Learned counsel for the respondent also placed reliance for certain observations appearing in the above case of 1970 All LJ 803. The observations are significant and have to be taken into consideration in determining whether the act of acceptance of rent after the determination of tenancy in every case amounts to a waiver. The Division Bench observed in paragraph 3 as follows :
'It will, however, always be a mixed question of fact and law as to whether in the circumstances of a particular case, the tender of the amount was by way of rent and its acceptance by the lessor was also as rent showing an intention to treat the lease as subsisting. Rent under this context must be understood to have the meaning assigned to it under Section 105 of the Transfer of Property Act. If on the facts established in a case it is proved that the amount was either not tendered as rent or was not accepted as rent then there will be no waiver of the notice to quit the property leased but in case it is established in a case that the money was was tendered as rent and was accepted as rent as contemplated by Section 105 of the T. P. Act, there will be a waiver of the notice to quit the property leased showing intention to treat the lease as subsisting.........The attending circumstances have to be proved for establishing a waiver under Section 113 of the T. P. Act. It is the intention , to treat the lease as subsisting that is relevant. If the amount tendered is accepted as rent for the period subsequent to the expiration of the notice to quit the property leased the same may amount to showing an intention to treat the lease as subsisting.'
It is evident from the above that the real Question to be determined in each case is one of the intention of the parties. It will be based on the facts of each case. In other words it may be stated that the Question was whether the landlord intended to continue the lease. Was he by his acceptance of rent after the determination of the lease waiving the notice and treating the tenancy to be subsisting? This question has to be answered on the basis of the evidence in each case. Where a 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. In the present case it is admitted by the parties that no rent was either tendered or accepted on or after the 1st of March, 1967. Rent for the month of March was sent in the month of February, i.e. almost six weeks before the rent became due.
7. The case of the appellant is that he sent rent for the month of March, 1967 on the 15th February, 1967. His case further was that the money order coupon bore endorsement also. The landlord accepted the money order so sent, knowing full well that it was sent as rent for the accommodation for the month of March, 1967. This was rent sent for a period subsequent to the termination of the tenancy. An attempt was made by the landlord to show that the money order receipt did, not bear the endorsement 'rent for March'. It was suggested that this was interpolated subsequently. The finding of the court below, however, is to the contrary and it has been held that the writing was there when the amount was remitted. It, therefore, has to be accepted that a money order in the sum of Rs. 5.50 was sent on the 15th February, 1967 as rent and was also accepted as such.
8. Learned counsel for the appellant then urged that the oral evidence of the plaintiff nowhere showed that the amount was accepted under a mistake or under a misapprehension of facts. The plaintiff has nowhere in his deposition made any attempt to explain as to how he came to accept this amount of Rs. 5.50 which was sent as rent for a period subsequent to the termination of tenancy. In this view of the matter it will have to be held that the amount was accepted by the landlord knowingly that it was rent and that it was for a period beyond the expiry of notice.
9. Learned counsel for the respondent sought to argue that since the rent for the month of March, 1967 had not become due on the 15th February, 1967 the amount sent by the money order could not be deemed to be rent. I do not find any force in this contention. If what was sent as rent and was accepted as such by the landlord it does not lose the characteristic of being rent merely because it is sent in advance or that it had not yet become due. It is open to a tenant to pay rent in advance. It is also open to a landlord not to accept such rent after he had served a notice terminating the tenancy. But where he accepts rent, which is for a period beyond the date when his tenancy stands terminated, it has the effect of waiving the notice, for by this act he has shown his willingness to accept rent and continue the tenancy.
10. In the case of 1970 All LJ 803 (supra) the Division Bench has observed that the Court has to examine the attending circumstances for establishing a waiver under Section 113 of the Transfer of Property Act. What were attending circumstances in the present case? The notice to quit had been given on 1st of February, 1967 and it was to expire on the 1st of March, 1967 and the suit was filed on 10th March 67. If these were the only two acts it would show that the intention of the landlord was to terminate the tenancy. In the present case very significant fact, however, enters into the picture viz. the acceptance of a money order in the sum of Rs. 5.50 which is sent as rent and is accepted by the landlord on the 15th of February, 1967. This act of his only 15 days after having sent a notice terminating the tenancy can be interpreted in only one way viz. that the landlord had decided to waive the notice. The filing of the suit subsequently would not result in cancelling the waiver of the notice.
11. Learned counsel for the respondent cited the decision of the Division Bench in the case of Hari Shanker v. Chaitanya Kumar, (1968 All LJ 387) where it was held that in a case governed by Section 113 of the Act there should be something more than a mere acceptance of rent in order to enable the Court to hold that the acceptance of rentamounts to the waiver of notice to quit.In that case it was held that 'somethingmore' was lacking. In that case the noticewas served on the 16th of October, 1964and the tenancy stood terminated on the16th of November, 1964. After the institution of the suit on the 23rd of November, 1964 the landlord accepted rentfor the months of October, November andDecember, 1964. Further in that case itwas held that the tenant was protectedunder the provisions of the Rent ControlAct and even after the expiry of theperiod mentioned in the notice to quitand the institution of the suit he becamea statutory tenant under the Act and wasliable to pay rent to the plaintiff landlord. It was held: 'The mere acceptanceby the plaintiffs of the rent for November and December, 1964, which was payable to them under the provisions of theAct, cannot accordingly amount to thewaiver of notice to quit by them. In viewof the provisions of the Act such acceptance remains equivocal. The plaintiffsmay maintain that they had accepted therent for November and December, 1964as it had fallen due under the Act andnot because they were minded to continue the relation of landlord and tenant.The burden is on the defendant to showthat the plaintiffs had accepted the rentas 'rent' and not as rent 'due under theAct'. We have not been referred to anysuch evidence on record. It would, therefore, be obvious that the facts of thatDivision Bench case were different fromthe facts of the present case. In this casethe landlord had obtained permission tofile a suit for the ejectment of the defendant under Section 3 of the Act. Thusthe bar for filing a suit under the Act hadbeen lifted and the parties were relegated to the position as if the Rent Controland Eviction Act were not there. Therefore, the question of acceptance of rentas 'rent due under the Act' does notarise in the present case. It has alreadybeen held in this case that the amountsent was accepted as rent. In my opinion,therefore, the observations made in thecase of 1968 All LJ 387 (supra) are notapplicable in the present case and thedecision in the case of 1970 All LJ 803would be applicable.
12. In my opinion, therefore, the amount that was sent was accepted as rent after the service upon the tenant of a notice to quit and this acceptance constituted waiver of the notice to quit. In this view of the matter the suit of the plaintiff respondent could not be decreed and the decree passed by the court below will have to be set aside.
13. In the result, therefore, the appeal succeeds and is allowed. The judgment and decree of the court below are set aside and the suit of the plaintiff stands dismissed with costs throughout.