PADAM CHAND GARG Vs. ATAR SINGH RIKSHAWALA

JUDGEMENT

(1.) THIS plaintiff's Se cond 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 ejectment was claimed on the basis of default. It is not disputed that a composite notice of demand and determination was served on the defend-and-respondent on 13-7-67. The defend ant-respondent remitted the arrears on 10-8-1963. From the record it appears that llth 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 no default was committed. The trial Court decreed the plaintiff's suit. The lower ap pellate Court allowed the appeal holding that the money having been despatched within 30 days, the defendant could not be a defaulter. The plaintiff thereupon came to this Court in Second Appeal. Se cond Appeal was heard on 17th of March, 1971 and was allowed. It was subse quently learnt that the plaintiff had al ready died on 24th of February. 1971. The judgment passed by me on 17th. March 1971 was then recalled and the ap peal was directed to be taken after the substitution proceedings were over. Ap pellants who are the heirs of deceased Padam Chand Garg have been substituted as legal representatives of the deceased appellant. An application under Order 41, Rule 27, Civil P. C. has been moved in this Court on behalf of the respondent. By the application some new facts and documents are sought to be considered while disposing of the appeal. No coun ter-affidavit has been filed to the appli cation. The papers sought to be con sidered are relevant and as such I have allowed the application. On the basis of the documents filed today it has been con tended by the learned counsel for the respondent that the landlord renewed the tenancy by acceptance of rent and waived the notice of determination, whereas the learned counsel for the ap pellant has contended that the mere ac ceptance of rent even for a period sub sequent to the date of notice would not amount to waiver of notice. His conten tion is that the appellant had all along been prosecuting his Second Appeal and, therefore, it cannot be said that he in tended to waive the notice of termina tion. Reliance has been placed by him on Moti Lal v. Basant Lal. AIR 1956 All 175; Ganga Dutt Murarka v. Kartik Chandra Das. AIR 1961 SC 1067; Mangi lal v. Sugan Chand Rathi. AIR 1965 SC 101 Permanand v. L. Murari Lal, 1966 All LJ 1074 and Faiyaz Ahmad v. Brij Nandan Lal Goyal, 1969 All LJ 365.

(3.) 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:-