OM PRAKASH SAXENA Vs. RAJA BABU SAXENA

JUDGEMENT

(1.) THIS is an appeal by the defendant. Plaintiff's suit for the ejectment of the defendant and for re covery 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 appel lant 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 Febru ary, 1967. The tenancy was to stand de termined 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 Com missioner and the suit was filed by the plaintiff on 10th of March, 1967.

(3.) IN support of the rival cases certain decisions of this Court and of the Supreme Court were cited. Learned coun sel for the appellant cited the case of Ram Daval 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 in tended that the relationship of the land lord and tenant subsisted between the parties. It was immaterial that the defen dant was unable to satisfy the Court by his evidence affirmatively that there was an agreement arrived at for continuing the tenancy.