LALLOO BHAI CHHAGAN LAL Vs. NAWAL AND

JUDGEMENT

(1.) THESE are two connected applications in revision filed by Lalloo Bhai Chhagan Lal against the order of refusal to grant relief for eviction of the defendants opposite parties. It appears that the defendant-opposite parties in the two revisions were the tenants of different shops belonging to the applicant situate in premises No. C.K. 56/9, Govindpura, Narial Bazar, Varanasi. Notices determining the tenancy of both the opposite parties were given separately on 8th September, 1968. Thereafter suits for eviction were filed. During the pendency of the suits in the Court of the Judge, Small Cause Court, the applicant gave a second notice on 4th January, 1973 to both the opposite parties. Under these notices also the tenancy of the opposite parties were determined. The ground mentioned in the second notice was of default and of the need of the applicant. The opposite panics quickly took advantage of these notices and tiled them. They claimed that the notices dated 8th September, 1968 were waived under Section 113 of the Transfer of Property Act and the suit was not maintainable on the basis of the first notice. Learned Counsel for the applicant has contended that the subsequent notices were given during the pendency of the suit, as such they would not affect the maintainability of the suit and the subsequent notices would not amount to waiver of the previous notices given on 8th September, 1968. In this connection he has relied on Han Shanker v. Chaitanya Kumar(1968 ALJ 387.). It was a case in which after the expiry of the period of notice and during the pendency of the suit the landlord had accepted the rent tendered by the tenant. It was held that mere acceptance of rent for a period after the time mentioned in notice had expired did not amount to a waiver of notice to quit under Section 113 of the Transfer of the Property Act". This case, to my mind has no application to the facts or the instant case. The facts in the instant case are entirely different. The case is fully covered by Illustration (b) to Section 113, Transfer of Property Act, which is as follows: - "A. The lessor, gives B, the lessee, notice to quit the property leased. The notice expires and B remains in possession. A gives to B as lessee a second notice to quit. This first notice is waived." It has been held in Mongal Sen v. Srimati Krishna Devi(1970 ALJ 803.), that the institution of the suit does not take away the right of parties to waive the notice to quit the property leased and to continue the lease." That being the position, the first notice given on 8th September, 1968 was clearly waived and the suit for eviction was rightly dismissed. It has also been brought to my notice that the second notice given in Civil Revision No. 480 of 1974 was not proved. However, the court below have accepted these second notices and have also found them proved. I, am therefore, not prepared to accept this contention either. Moreover, it appears that the counsel for the applicant had admitted having given them before the courts below, although he made a note admitting this notice in the case of Nawal Kishore, while he omitted to write the word 'admitted' in the notice in the case of Mahabir Prasad. It is a highly technical matter which cannot be allowed to be agitated in these revisions. Both the revisions are, therefore, dismissed with costs.