1. This revision application under S. 25 of the Provincial Small Cause Courts Act is directed against the judgment and decree D/- 8-1-1997 recorded by the District Judge, Mathura, exercising small causes powers in SCC Suit No. 6 of 1994. On an undertaking by the plaintiff-respondents the execution of the decree has been kept suspended till the date of judgment.

2. The suit was filed for eviction of the tenant-revisionists from the suit premises situated in the city of Mathura. The defendants had admittedly been tenants on month to month basis in the suit premises on a rate of rent of Rs. 5,705/- per month. Initially the tenancy was created for a period of three years with stipulation for extension of the period up to 3 years more subject to enhancement of rent by 15 per cent. The extended period of tenancy was to expire on 15th Dec. 1993. Before the aforesaid date of expiry, the plaintiff served a notice on the defendants on 20-7-1993 demanding vacant possession of the suit premises after expiry of extended period of tenancy. On receipt of the notice, the defendants started negotiating for taking the building on a fresh lease on 20 percent enhancement of the rate of rent for a further period of five years. The negotiations, however, failed. The building was constructed, according to the plaintiff, in the year 1987, the rate of rent was more than Rs. 2000/- per month and the provisions of the U.P Act No. 13 of 1972 were not applicable for any matter relating to the landlord tenant relationship. A notice under S. 106, T.P Act was sent to the tenants on 30th Aug. 1994, for terminating their tenancy. Replies were sent to such notice but possession was not made over.

3. The suit was contested by the defendants. The tenancy was not denied nor was the rate of rent. It was asserted that the original period of lease was extended up to 15th Nov. 1993. It was asserted, however, that the building was constructed for more than 50 years back and on that score exclusion of operation of the U.P Act No. 13 of 1972 could pot have been claimed. The defendants highlighted the fact that even after the receipt of the notice of termination of tenancy, the defendants had made over the rent of the building to the plaintiff who had accepted the same and this acceptance was under the law a waiver of the notice of determination of the tenancy. The suit was filed, according to the defendant-appellant, only with a view to enhance the rent of the building.

4. The trial Court considered the question of applicability of the U.P Act No. 13 of 1972 to the present set of facts and also took up into consideration the question whether the notice of determination of tenancy was served by any action of the plaintiffs. He negatived both the objections and had decreed the suit.

5. The revision was pressed basically on the question of waiver only. The learned counsels submitted case-laws in support of the arguments. Reliance was further placed on the statement of the plaintiff to show that rent was accepted even after service of the termination of notice. Reference was made to deposition of PW-1, a copy of which was placed before me. This P.W admitted in paragraph 6 of his cross-examination that New India Assurance Company had deposited the sum due as rent and he had withdrawn the same. He admitted that he did not intimate the New India Assurance that the same was being withdrawn as damages for unlawful occupation, or it, was accepted under protest. He, however, asserted that he had given a separate receipt for such sum.

6. A reading of the judgment of the trial Court indicates that it had engaged itself to the fact and the law on the question of waiver of the notice. The rent after the date of notice was paid through a cheque accompanied by a forwarding letter D/- 17-10-1994. This paper was produced from that custody of the plaintiff and formal proof thereof was waived. On this paper there has been an endorsement of the plaintiff that it was accepted under protest. The trial Court, however, held that the paper came from the custody of the plaintiff only and it was statement of the plaintiff and he could not have relied on his own admission. But the on his own admission, a letter from plaintiff D/- 15-2-1996 where by the plaintiffs intimated that all the sum received by them were under protest without affecting their right to seek eviction of the tenants and the sums were accepted as damages for unlawful occupation of the defendants of, the suit premises. The trial Court relied on the statement of the D.W 1 to the effect that after the service of the notice for determination of tenancy the plaintiffs accepted the rent but started writing that rent was being accepted under protest. The plaintiff asserted in his statement that whenever any payment was made, a written receipt was given to the defendants, with endorsement of “under protest.” Such receipts were not produced in the Court. The trial Court discussed the case-law cited before it and was of the view that there was no intention on the part of the plaintiff to waive the notice by simple acceptance of rent under protest.

7. The suit for eviction of a tenant, under the T.P Act, may be filed only after determination of the tenancy by a notice as required under S. 106 read with S. 111 of the T.P Act. Section 113 deals with waiver of notice to quit. Under this section a notice given under S. 111(h) is waived, with the express or implied consent of the parties, to whom is given by any act of the person giving it showing an intention of treating the lease as subsisting. An illustration under this section gives a case where A. the lessor, gives B. the lessee notice to quit the properly leased. The notice expires. B tenders and A accepts the rent which has become due in respect of the property since the expiration of the notice. The notice is waived. Reference was also made to S. 116 of the T.P Act. It deals with effect of holding over and states that if a lessee or under-lessee of a properly remains in possession thereof after the determination of the lease granted to the lessee and the lessor 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. The learned counsel for the revisionist relied on S. 116 to say that even after the notice of termination the defendants continued to possess the building under tenancy and there was acceptance of rent on behalf of the plaintiffs and as such, a new tenancy must be deemed to have been created. The learned counsel for the respondents however, stated that for waiver of notice to quit. S. 116 would not be read and the question of waiver would be determined only in terms of S. 113 T.P Act. It was contended that the action on the part of the plaintiff must show his intention to treat the lease as subsisting. Unless that intention could be inferred from his conduct, the notice may not be deemed to have been waived.

8. The case-laws on this point as were referred now be looked into. On the question of waiver of notice, the Lucknow Bench of the Allahabad High Court in the case reported in AIR 1952 All 479 that if the landlord actively continue the prosecution of the case or appeal with regard to ejectment of the tenant, the mere acceptance of rent by him cannot be treated as waiver so as to deprive him of the right of ejectment in pursuance to the decree which he had obtained. Here was a case where a landlord had initiated a suit for eviction of a tenant. The suit was decreed by the trial Court and the appeal of the tenant was also dismissed by the first appellate Court and the matter came up in second appeal before the High Court, it was contended by the defendants that the landlord had accepted the rent during the continuance of the appeal. The execution proceedings were stayed by an order passed in the second appeal. The landlord was entitled to receive compensation for use and occupation of the house during that period. He had received the sum month to month. He might have even used the term rent in some of the receipts which he had issued but having regard to the fact that the persons issuing those receipts did not have a legal training and might have used lie word ‘rent’ instead of ‘damages.’ not much importance could be given to the use of the term rent. The Court found that if the landlord actively continued the prosecution of his case or the appeal with regard to the ejectment, mere acceptance of rent would not be treated as waiver of the notice.

9. In the case reported in. AIR 1956 All 175 again, a question had arisen concerning waiver of a notice. In explaining S. 113 of the T.P Act, the Hon'ble Judge of the Lucknow Bench of this High Court held that a waiver under S. 113 can be brought about by the action of the landlord if after determining the tenancy by notice, the landlord had chosen to accept rent again from the tenant. In such an event, under S. 113 a notice for determining a tenancy given by the landlord to the tenant, would be deemed to have been waived. No question of waiver, however, would arise if the landlord had brought a suit on the basis of valid notice given for determination of the lease. If such a suit had been brought, there could be no waiver though it was always open for the landlord to renew the lease any time he liked.

10. The case reported in AIR 1966 All 623, also deal with the question of waiver of notice. It was a suit for ejectment after service of notice to quit. Rent for the period subsequent to the notice was accepted and a question arose whether such acceptance, whether prior or subsequent to the institution of the suit, would amount to waiver of the notice. The Court was of the view that once it was found that the rent for a period subsequent to the notice to quit was accepted the plaintiff-landlord, it was that circumstance alone which had taken into consideration for finding out whether by such acceptance of rent the plaintiff intended that the relationship of landlord and tenant should subsist between the parties. It was held herein that whether there was any agreement after the termination of the tenancy or whether the plaintiff diligently prosecuted his suit were not material. The only material point was whether there was acceptance of rent by the plaintiff for period subsequent to the notice to quit. The Court had in this case allowed the appeal of the defendant in this case holding that in the circumstances of the case the notice stood waived.

11. A similar question arose in the case of Ram Krishna v. Jhooman Das as decided by this High Court in the case reported in ARC 1987 (1) at page 276 (Sic). The Court observed in this case that mere fact that the landlord accepted the rent deposited by the tenant after expiry of 30 days, time given in the notice to quit, could not lead to a conclusion of waiver when his intention was clear and he had filed a suit for eviction.

12. A similar view was taken by the Allahabad High Court earlier also in the case of Smt. Sharda Sharma… v. Smt. Gulab Devi Dhwon…. as reported in AIR 1972 All 435. The Court was of the view in this case that mere acceptance of the sums tendered by the tenant by the landlord during pendency of the suit for objectment did not amount to waiver.

13. Barring the case reported in AIR 1966 All 623, all the other decisions are unanimous on the point that mere acceptance of rent after notice to quit would not amount to waiver of a notice. Section 113 of the T.P Act clearly requires that a notice given under S. 111 is waived with the express or implied consent of the person to whom it is given by any act on the part of the person giving it. Showing an intention to treat the lease as subsisting. Here tender was made of the sum by the tenant. The plaintiff accepted the sum but to constitute waiver under S. 113 of the T.P Act, mere tender and acceptance were not sufficient. These two actions should have shown an intention on the part of the landlord to treat the lease as subsisting. Looked from this angle, the decisions relied upon by the respondents appear to be more relevant. Whenever there is acceptance by the landlord of any sum tendered by the tenant as rent, the Court is obliged to look to such acceptance in the light of the last requirement of S. 113 as to whether this acceptance had shown an intention on the part of the landlord to treat the lease as subsisting.

14. The trial Court found from a discussion of the evidence led before it that the defendant were tendering the sum through the cheques and the plaintiff asserted that the receipt were given to show that those were accepted under protest. The defendants had admitted that the plaintiffs had accepted such sums under protest. In fact, by a subsequent notice, the plaintiffs its had also informed the defendants in writing that all such earlier payments were accepted on protest and towards damages for unlawful occupation of the premises and not towards the rent. The tenancy was terminated by a notice D/- 30-8-1993 and the suit was instituted almost immediately thereafter. There are materials to indical that the building in question was fetching a rent of Rs. 5000/- and odd and the plaintiff was entitled to receive damages for unlawful occupation at least at the rate of monthly rent. The immediate institution of the suit and acceptance of the sums tendered by the defendants under protest which fact was not denied by the defendants (as indicated in trial Court judgment) and the subsequent notice in writing that the sums were accepted as damages makes it clear that it was not a case where the plaintiffs had intended to continue the tenancy. It could not be treated as a creation of a new tenancy as well as what was accepted was by way of damages only as found on facts by the trial Court. In conformity with the case-laws relied upon by the learned counsel for the respondents. I am of the view that mere acceptance of the sums in the circumstances of the present case did not amount to a wiver of the notice as the circumstances clearly indicated absence on the part of the plaintiffs any intention of continuing the tenancy. The judgment of the trial Court may not therefore, be assailed on this ground.

15. This was the only ground on which the judgment was challenged. That ground having failed, the present revision application also fails and is dismissed. The judgment and the decree of the trial Court stand confirmed. However, keeping in view that the defendants are running an important office in the suit premises and their immediate eviction may lead to difficulties, it is directed that within a month from the dale this judgment the defendants/tenants are to vacate the premises, failing which the decree for eviction may be put to execution.

16. Petition dismissed.