Sultan Singh, J.
1. The relevant facts for the decision of these questionsare :
Balmukand, plaintiff now represented by the respondents in this appeal became owner of the property in suit i.e. Shop No. 3434 Arya Pura, Subzi Mandi, Delhi by means of parchase from the Custodian of Evacuee Property on or about 19th December, 1956 wherein Sewa Ram predecessor of the appellants was already a tenant. Sewa Ram atterned to Balmukand. The tenancy of Sewa Ram was terminated by means of a notice dated 25th July, 1968 served on him on 9th August, 1968. By this notice Sewa Ram, tenant was required to deliver vacant and physical possession of the shop on the expiry of 18th September, 1968. On 19th January, 1970 another notice was given by Balmukand to Sewa Ram demanding the arrears of rent from 19th July, 1968 to 18th January, 1970. The ground of misuse of premises and causing damages to the premises was also mentioned. Sewa Ram was required to deliver vacant and physical possession of the said shop on the expiry of 18th March, 1970. This notice was served and on 1st March, 1970 it appears that Sewa Ram paid rents to Balmukand who issued receipt Ex. D/4 for the same However Sewa Ram died on 8th March, 1970.
2. On 14th October, 1970 plaintiff filed the suit for possession and mandatory injunction out of which this appeal has arisen. He claimed possession of the shop premises in suit on the ground that the tenancy of Sewa Ram was terminated by notice dated 25th July, 1968, that the tenancy was not heritable by the hairs i e. the appellants and that the appellants' possession was unauthorised. A prayer for mandatory injunction was also made restraining the appellants from using the shop for the purpose of a bakery and running a Bhatti (Furnce). In this appeal the relief of injunction has not been pressed. Two sets of written statements were filed on behalf of the appellants but they are identical. The defense relevant for the purpose of the present appeal is that there is a relationship of tenant and landlord between the appellants and the respondents, that notice dated 25th July, 1968 was not served and if held to be served it was not a proper & valid notice in accordance with law, that the said notice was waived, cancelled and withdrawn on the issue of second notice dated 19th January, 1970, that the second notice dated 19th January, 1970 is not valid in the eye of law as Sewa Ram died on 8th March, 1970 while he was required to deliver vacant and physical possession on the expiry of 18th March, 1970, that the plaintiff agreed to waive and withdraw the notice by accepting the arrears of rent due on 1st March, 1970 amounting to Rs. 142/-.
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3. Section 103 and Rule 24 of Order 41 of the Code of Civil Procedure read as under :
'S. 103 : Power of High Court to determing issue : In any second appeal the High Court may, if the evidence on the record is sufficient, determine any issue necessary for the disposal of the appeal :
(a) which has not been determined by the lower appellate court or both by the Court of first instance and the lower appellate court, or
(b) which has been wrongly determined by such court or courts by reason of a decision on such question of law as is referred to in Section 100'.
'Rule 24: Where evidence on record sufficient, Appellate Court may determine case finally : Where the evidence upon the record is sufficient to enable the Appellate Court to pronounce judgment, the Appellate Court may, after resettling the issues, if necessary, finally determine the suit, not with Standing that the judgment of the court from whose decree the appeal is preferred has proceeded wholly upon some ground other than that on which the Appellate Court proceeds'.
4. Under these provisions if the evidence on record is sufficient to determine any issue for disposal of the appeal, the High Court is empowered to determine the issues. Even if an issue has not been framed the same can be framed by this court. There is no bar to the framing or re-settling of the issues already framed. The mere fact that the specific issue arising out of the amended written statement has not been framed is no ground for remanding the whole case where the parties have perfectly understood [each others cases and a Full Bench of this Court has already held that the amended definition of the word 'tenant' is not applicable to non-residential premises. Such cases can be surely dealt with under Rule 24 of Order 41 of the Code of Civil procedure.
5. After going through the amended written statement placed on the file of the first appellate court 1 frame the following additional issue :
'Whether Smt. Moorti Appellant-defendant No. 1 inherited tenancy rights from her husband in view of the amended definition of the word 'tenant' in Section 2(1) of the Delhi Rent Control Act, 1958 as amended by Act 18 of 1976 with retrospective effect'.
6. The first question for decision thereforee is whether the notice dated 25th July, 1968 is valid.
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7. The learned counsel for the appellants submits that the plaintiff after the issue of second notice admittedly received rents due on 1st March, 1970 and thereforee the landlord is deemed to have waived not only the first notice dated 25th July, 1968 but also the second notice dated 19th January, 1970. It is also submitted that Sewa Ram tenant died on 8th March, 1970 while the second notice required him to deliver vacant possession on the expiry of 18th March, 1970. In other words, learned counsel submits that the first notice was waived by the second notice and the second notice remained ineffective as Sewa Ram died before the crucial date i e. 18th March, 1970 up to which date he was required to deliver vacant possession. He thereforee further submits that the appellants who are the heirs of the deceased tenant Sewa Ram have inherited the tenancy rights and that a new tenancy was created between the plaintiff and Sewa Ram deceased, after the issue of the second notice dated 19th January, 1970. Ordinarily if the tenancy has been determined under Section 111(h) of the Transfer of Property Act by giving an eviction notice to the tenant and subsequently the landlord gives a fresh notice of eviction to the said tenant andalso shows an intention to treat the tenancy as subsisting, the first notice is waived under Section 113 of the Transfer of Property Act. For a waiver of notice there must be bilateral contract i.e. an intention to treat the lease as subsisting on the part of the landlord as well as the tenant. Merely giving of a second notice does not waive the first notice and the question for decision is whether the person giving the notice i.e. the landlord treated the lease as subsisting after the issue of first notice. Similarly when a notice of eviction is given and the landlord accepts rent from the tenant thereafter with the intention to treat the tenancy as subsisting, the notice of eviction is deemed to have been waived. Section 116 of the Transfer of Property Act provides for the effect of holding over. This Section reads as under :
'S. 116 : Effect of holding over : If a lessee or under-lessee of property remains in possession thereof, after the determination of the lease granted to the lessee, and the Lesser or his legal representative accepts rent from the lessee or under-lessee, or otherwise assents to his continuing in possession, the lease is, in the absence of an agreement to the contrary, renewed from year to year, or from month to month, according to the purpose for which the property is leased, as specified in Section 106'.
8. Under this Section also if the tenant continues in possession of the premises after the determination of the lease and the landlord accepts rent from him or otherwise assents to the tenant's continuing possession, the tenancy is deemed to have been renewed. Both Section 113 and 116 of the Transfer of Property Act provide for ordinary landlord and tenant. These sections do not speak about the tenants whose tenancy is protected under Rent Control Acts even after the determination of his contractual tenancy. Such a tenant can only be dispossessed if he is liable to be evicted on one or more grounds as mentioned in the Delhi Rent Control Act. Section 14 of the Delhi Rent Control Act generally provides the grounds on which an order of eviction may be passed by the Controller. It is now well established that after the determination of tenancy if the landlord accepts rent, his tenancy is not renewed and such a tenant is deemed to be continuing in possession by virtue of protection afforded to him under the Delhi Rent Control Act. Thus mere acceptance of rent from a tenant whose tenancy has been terminated does not amount to creation of a new tenancy. Such a tenancy can be created if a fresh contract between the landlord and the tenant is proved on record. Similarly if the tenancy of the tenant is terminated by a notice of eviction and thereafter a fresh notice of eviction is given to him, it cannot be said that the first notice was waived by the landlord. The reason is that merely by service of a notice of eviction the tenant does not cease to be a tenant under the landlord within the meaning of the Delhi Rent Control Act.
9. Again the landlord has to prove one of the grounds of eviction mentioned in the Delhi Rent Control Act. thereforee the result is that if the tenancy of a tenant has been terminated, and a fresh notice of eviction is given to him, the first notice subsist and is not waived by the landlord unless the landlord and the tenant have entered into a first contract of tenancy. Section 113 and 116 of the Transfer of Property Act speak of a bilateral contract between the landlord and the tenant. The contract may be express or implied. Thus the net result is that acceptance of rent and giving of second notice does not createfresh tenancy. Such a fresh tenancy can be created only by a bilateral contract between the landlord and the tenant. In the present case the first notice was given on 25th July, 1968. The appellants have not placed any material On record to show that there was ever any fresh contract of tenancy between Balmukand, plaintiff-landlord and Sewa Ram, tenant either expressly or impliedly. It is admitted by Smt. Moorti Devi widow of the deceased tenant that since the purchase of the property by the plaintiff in 1956 there has been litigation between her husband Sewa Ram and the landlord. The property was purchased in 1956 and notice was given in 1968. This shows that the landlord never wanted the tenant to continue as a tenant. After service of the first notice dated 25th July, 1968 no act has been proved on the part of the plaintiff-landlord to show that at any time he accepted Sewa Ram as tenant of the shop in suit. The only evidence on record is that a dialogue took place between deceased Sewa Ram and the landlord. This alleged dialogue has been disbelieved by the first appellate court. Thus it cannot be said that there was any contract of tenancy even impliedly after the issue of the notice dated 25th July, 1968 or 19th January, 1970. Further it is apparent from the record that the rent was being paid by Sewa Ram by means of Money Order to the landlord although he was living on the first floor i.e. above the shop in suit. These facts taken together clearly show that the plaintiff landlord never agree to treat Sewa Ram as his tenant at any time after the issue of the first notice dated 25th July, 1968 and thereforee the notice dated 25th July, 1968 is not deemed to have been waived under Section 113 of the Transfer of Property Act.
10. The principle underlying Sections 113 and 116 is the same, namely, the assent of the landlord alone can not revive or renew the tenancy after it is once terminated. In Kai Khushroo Besonjee Capadia vs . Bai Jerbai Hirlibhoy Warden and another. it has been observed as under:
'On the determination of a lease, it is the duty of the lessee to deliver up possession of the demised premises to the Lesser. If the lessee or a sub-lessee under him continues in possession even after the determination of the lease, the landlord undoubtedly has the right to object him forthwith; but if he does not, and there is neither assent nor dissent on his part to . the continuance of occupation of such person, the latter becomes in the language of English law a tenant on sufferance who has no lawful title to the land but holds it merely through the laches of the landlord. If now the landlord accepts rent from such person or otherwise expresses assent to the continuance of his possession, a new tenancy comes into existence as is contemplated by Section 116, T.P. Act, and unless there is an agreement to the contrary, such tenancy would be regarded as one from year to year or from month to month in accordance with the provisions of Section 106 of the Act.'
11. It was further observed :
'In cases of tenancies relating to dwelling houses to which the Rent Restriction Acts apply, the tenant may enjoy a statutory immunity from eviction even after the lease has expired. The landlord cannot eject him except on specified grounds mentioned in the Acts themselves. In such circumstances, acceptance of rent by the landlordfrom a statutory tenant, whose lease has already expired, could not be regarded as evidence of a new agreement of tenancy and it would not be open to such a tenant to urge, by way of defense, in a suit for ejectment brought against him, under the provisions of Rent Restriction Act that by acceptance of rent a fresh tenancy was created which had to be determined by a fresh notice to quit.'
12. Again in Ganga Dutt Murrka vs . Kartik Chandra Das & others, : 3SCR813 it was observed, 'where 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. 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 to 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 whether the conduct justifies such an interference must always depend upon the facts of each case. Occupation of premises by a tenant whose tenancy is determined is by virtue of the protection granted by the statute and not because of any right arising from the contract which is determined. The statute protects his possession so long as the conditions which justify a Lesser in obtaining an order of eviction against him do not exist. Once the prohibition against the exercise of jurisdiction by the court is removed, the right to obtain possession by the Lesser under the ordinary law springs into action and the exercise of the Lesser's right to evict the tenant will not, unless the statute provides otherwise, be conditioned. In Bhawanji Lakhanshi and other vs . Himatlal Jamnadas Dani and others, : 2SCR890 it has been held that after determination of tenancy by efflux of time fresh tenancy is not created merely by acceptance of rent. Further it has been held, 'Where the Rent Control is applicable onus lies on the tenant to establish fresh tenancy and that a fresh tenancy can be established by a bilateral contract between the erstwhile landlord and the erstwhile tenant. Moreover the waiver is a question of fact which is to be determined in the facts and circumstances of each case as to whether thein tention of the parties is to abandon the previously acquired right or benefit, and this intention is to be gathered from the documents read as a whole as well as the conduct of the parties, and circumstances of the case. In the present case there is no document on record to show any intention of waiver of notice. As regards conduct is concerned, there is nothing on record to show waiver on the part of the landlord. Learned counsel for the appellants relied upon Tayabali Jaffarbhai Tankiwala v. Asha and Co. and Anr., : 2SCR554 . The facts of this case are different from the case in hand. In the Supreme Court case the landlord gave notice to quit on ground of arrears of rent. The tenant did not vacate. Second notice was given demanding rent for the period between the first notice and second notice. A suit for ejectment was filed and the landlord claimed damages for use and occupation for the period subsequent to second notice. The Supreme Court in the circumstances of that case held that the landlord was aware of distinction between rent and compensation for use and occupation and thereforee it was held that the first notice was waived and the landlordtreated the tenancy as subsisting. In the case before me the two notices dated 25th July, 1968 and 19th January, 1970 used the word 'rent' while claiming arrears from the tenant. The words 'damages for use and occupation' were not used at all.
13. Learned counsel for the appellants further argues that illustration (b) of Section 113 of the Transfer of Property Act applies to the facts of the present case. I do not agree. The illustration to the section cannot control the main provisions of the section or limit its scope. Mere issue of notice does not show waiver. There must be bilateral intention to treat the tenancy as subsisting as required by the main provisions of this Section.
14. Thus I held that the notice dated 25th July, 1968 is a valid notice which was never waived by the plaintiff-landlord either by acceptance of rent there after or issue of second notice dated 19th January, 1970.
15. There is no merit in the appeal and the same is dismissed with costs. Counsel's fee Rs. 300/-.