Jagmohan Lal, J.
1. This is defendants appeal which arises out of a suit for ejectment and arrears of rent filed against her by the plaintiff-respondent. The suit was decreed By the trial Court. An appeal filed against that decree by the defendant-appellant was dismissed by the Additional District Judge. The defendant has now approached this Court by filing this second appeal.
2. I heard the learned counsel for the parties. Sri D. S. Bajpai, learned counsel for the appellant, pressed four points in this appeal. Firstly, he contended that it had not been satisfactorily proved that the house in suit had been let out to the defendant-appellant by the plaintiff-respondent On the other hand, it had been proved that the same had been let out to her by the plaintiff's husband Dr. H. M. Dhaon. This was purely a question of fact. Both the Courts below, on an appraisal of the evidence, have come to the conclusion that the house belonged to the plaintiff-respondent and it had been let out by her to the defendant-appellant. This finding of fact cannot be assailed in this second appeal. I may simply note that though it was admitted by the defendant that she used to receive receipts for payment of rent not a single receipt was tiled by her to show that Dr. Dhaon had on anyone of those receipts described himself as the landlord.
3. The next point that was urged by the learned counsel for the appellant was that the trial Court did not frame an issue about estoppel, and even when an application was made by the defendant to frame this issue and record a finding on it her application was wrongly rejected and this has materially prejudiced the defendant-appellant. An issue could be framed on this point only if a plea to this effect had been taken by the defendant in her written statement Even if the expression 'estoppel' had not been clearly used in the written statement, at least the facts on which this plea was sought to be based must have been stated in the pleadings. A perusal of the written statement however shows that no such facts had been stated by the defendant. Even in that application in which a request was made to frame an issue on this point, no facts had been stated on the basis of which a plea of estoppel could be founded. The learned counsel for the appellant was unable to refer to any material on record on which this plea could be founded. There is no allegation that the plaintiff had made any misrepresentation to the defendant and that the defendant acting on that misrepresentation had changed her position to her disadvantage which she would not have otherwise done but for this misrepresentation. Under these circumstances, there was no occasion to frame an issue about estoppel and record any finding on it.
4. The third point that was argued by the learned counsel for the appellant was that the Courts below have found that during the pendency of the suit the defendant paid Rs. 2500/- to the plaintiff by means of several cheques. The defendant had alleged that these cheques had been passed on by her towards payment of rent for the period after the notice to quit. It is argued that in view of this statement of the defendant it should have been held by the Courts below that there was a waiver of notice to quit under Section 113 of the Transfer of Property Act even though the landlord had accepted , these cheques towards payment of damages for use and occupation as found by the Courts below. In support of this contention he relies on a Full Bench decision of Patna High Court in Chotu Mia v. Mt. Sundari AIR 1945 Pat 260 (FB). That decision is clearly distinguishable and it cannot apply to the facts of the present case for more than one reason. That was a case under Section 112 of waiver of forfeiture occasioned under Section 111(g) of the Transfer of Property Act and not a waiver of notice to quit under Section 113. That there is a difference between these two types of waiver has been clearly laid down by this Court in Permanand v. L. Murari Lal. 1966 All LJ 1074. Secondly, in that case the rent had been paid to the landlord before a suit for ejectment was filed while in the present case the payments were made during the pendency of the suit.
In order to constitute a waiver of notice to quit under Section 113 the tenant has to prove that the landlord by accepting the rent for the period subsequent to the termination of tenancy had an intention to treat the lease as subsisting. In the absence of any such intention on the part of the landlord being proved, mere acceptance of an amount tendered by the tenant during the pendency of the suit for ejectment against him cannot amount to waiver. This has been the consistent view of this Court as expressed in Khumani v. Saktey Lal : AIR1952All579 ; Moti Lal v. Basant Lal AIR 1956 All 176 and 1966 All LJ 1074 (supra). In the present case all that was brought out on record was that the defendant passed on fourteen cheques of various dates from 12-7-1965 to 13-10-1967, totalling Rs. 2905/- out of which two cheques of Rs. 405/- had been dishonoured and the rest amounting to Rs. 2500/- had been cashed by the plaintiff. The defendant's contention was that there was a talk of compromise between her and the plaintiff's husband and in pursuance of that compromise these payments were made to him towards rent and the plaintiff's husband was agreeable to her continuing as tenant.
The plaintiff's husband Dr. Dhaon denied this fact and he stated that he had accepted these cheques towards the damages for use and occupation that had accrued due after the institution of the suit, the suit having been instituted on 1-2-1965. Both the Courts below have disbelieved the defendant's version and they were inclined to accept the statement of the plaintiffs husband on this point. This again is a finding of fact which cannot be assailed in second appeal. It may, however, be stated that if there had been such a compromise as alleged by the defendant, the simplest way to give effect to it was to file written compromise before the Court or at least to obtain receipts from the plaintiffs' husband for these payments stating therein that the amounts had been accepted by him towards rent for the subsequent period. But no such receipt or any other acknowledgment appears to have been obtained and, in any case, none was filed by the defendant. Under these circumstances the lower Courts were justified in recording this finding of fact. On these facts it cannot be said that the landlord had waived the notice to quit under Section 113 simply because on her behalf certain sums had been accepted during the pendency of the suit. After all those sums had to be paid by the defendant. If she had not paid these stuns from time to time during the pendency of the suit, they would have gone on accumulating and a decree would have been passed with regard to those sums also on which she would have been saddled with further costs. If to save her from those costs and to avoid accumulation of arrears she made these payments, it does not necessarily mean that the land-lord waived the notice to quit. Thus the waiver of notice had not been proved in this case.
5. Lastly, the learned counsel contended that since these payments were made by the defendant as debtor she had the first option to specify towards what debt they should be appropriated as provided in Section 59 of the Contract Act, and even if she had not made this specification, they could be applied under Section 61 towards the discharge of these two types of debts, namely, arrears of rent and damages for use and occupation, in order of time. As such, out of these sums, first the entire rent that had been claimed in the suit should have been discharged and thereafter the balance should have been applied towards the payment of the damages for use and occupation. This argument is only of academic interest because in the suit the plaintiff had prayed for a decree for both these sums and after adjusting the payments made by the defendant during the pendency of the suit her claim has been decreed only in respect of the balance and it is immaterial that a part of it has been given the name of arrears of rent and the rest as damages for use and occupation. It has no practical effect so far as the liability of the defendant is concerned.
6. No other point was pressed in this appeal.
7. As a result of the above findings, the appeal is dismissed with costs. The stay order dated 21-5-1970 is discharged. At the request of the learned counsel for the appellant, the defendant is, however, allowed one month's time to vacate the premises.