V.S Deshpande, J.:— The premises belonging to the appellant-landlord were originally let out to the respondent-tenant at Rs. 9450 per month The tenant was in arrears of rent and the landlord gave the first notice of demand under proviso (a) to sub-section (1) of Section 14 of the Delhi Rent Control Act 1958 and then filed a petition for eviction of the tenant on the ground that the arrears were not paid by the tenant within two months after the notice of demand. After the petition was filed, the Rent Controller made an order under section 15(1) of the said Act The tenant paid the arrears and, therefore, this first petition filed by the landlord for the eviction of the tenant was dismissed. Subsequently a portion of the premises was demolished and, therefore, for two months, the tenant paid the rent of Rs. 84-50 per month only to the landlord. The reconstruction of the demolished portion enlarged the built up area of the premises and the tenant again started paying rent of Rs. 94-50 per month to the landlord. The tenant was again in arrears and, therefore, the landlord gave the following notice (Exhibit A.W.5/6) on 9th October, 1964:—

2. ‘Under instructions from Shri Krishen Jain son of Lala Rangi Lal Jain of 1 Daryaganj, Delhi-6, I hereby require you to pay him or to me on his behalf, the sum of Rs. 641.50 (Rs. Six Hundred and Fortyone Paise fifty) only due from you on account of rent from 1st February, 1964 to 30th September, 1964 at Rs. 94.50 per month for premises leased to you in House No. X/4242/30 to 32 in 2 Daryaganj, Delhi. Please note that if you do not pay this amount within two months from the date of service of this notice, I have instructions to file a suit in court against you for the recovery of the same and your ejectment from the above premises and you will be further liable for my client's costs and also interest at the rate of 12% P. A. until realization.”

3. Asno payment was made. the second petition for eviction was filed on 31st December, 1964. During the pendency of this petition, the Supreme Court decision in Manujendra Dutta v. Purnendu Prasad Roy Chowdhury . A.I.R 1967 S.C 1419 was delivered making it known that the Rent Control Acts were not a self-contained code but had to be read with the Transfer of Property Act and no petition for eviction could be filed unless the contractual tenancy was terminated by a notice. Not knowing whether the notice dated 9th October, 1964 would be regarded as a camposite notice of demand under Section 14(1)(a) of the Delhi Rent Control Act, 1958 as also a reasonable notice according to the principle enshrined in Section 106 of the Transfer of Property Act, the landlord gave another notice to quit to the tenant on 25th October. 1967 (RW-12/1) as follows:—

“Under instructions from my client Shri Raj Krishen Jain son of Shri Rangi Lal Jain of 1 Daryaganj I write to you as under:—

That you have been occupying a portion of premises bearing Municipal House Tax No XI/4242/30 to 32 in 2 Daryaganj, Delhi as a tenant under my aforesaid client at Rs. 94.50 p.m The tenancy being according to each English Calendar month and rent falls due on the last day of every month.

That a petition for your eviction from the aforesaid permises is pending in the Court of Shri S, R. Goel. Additional Rent Controller, Delhi on the ground of second default in the payment of rent and the premises are required for reconstruction purposes.

That a sum of Rs. 4158/- has become due from you on account of arrears of rent from 1st February, 1964 to 30th September; 1967 which you have not paid in spite of repeated demands.

That my client also requires the aforesaid premises on the ground of his bona fide personal requirement and that of the members of his family.

That my client does not wish to keep you as his tenant and he terminates your tenancy by the end of November, 1967 tenancy month.

Accordingly, I call upon you to vacate the aforesaid premises and surrender peaceful vacate possession to my aforesaid client by 30th November 1967 failing which my client will be obliged to take eviction proceedings against you at your risk and cost.

This notice is without prejudice to my client's rights for your ejecment on the grounds alleged in the petition already pending in court and referred to above.”

4. Among the grounds on which the tenant resisted the eviction petition, the following alone are now relevant inasmuch as the learned counsel for the appellant does not press for the eviction of the tenaat on the ground that the landlord wants the premises bona fide for reconstruction:—

1. The contractual tenancy, not having been terminated prior to the filing of the second eviction petition the eviction petition was liable to be dismissed on this ground alone.

2. Even if the notice dated 9th October, 1964 is regarded is a composite notice of demand as also a notice to quit sufficient to terminate the contractual tenancy prior to the filing of the eviction petition, this notice to quit was waived by the landlord by the subsequent acceptance of rent arrears and by giving the second notice to quit on 25th October, 1967 and

3. The tenant paid rent for three years in October 1967 counting backwards, i.e, from October 1964 to October 1967 as the rest of the rent arrears were barred by limitation. As the premises which formed the subject-matter of the first eviction petition were different from the premises which formed the subject-matter of the second eviction petition (in view of the addition by way of reconstruction made in the intervening period) the tenant was entitled to the benefit of sub-section (2) of section 14 without attracting the proviso thereof to get the eviction petition dismissed.

5. The Controller held that the tenant was not entitled to the benefit of section 15(1) and section 14(2) of the Delhi Rent Control Act, 1958 inasmuch as the first eviction petition had been already dismissed when the tenant had got the benefit of these provisions. He also held that the identity of the premises was not changed by the addition He further held that the tenant had failed to raise the bar of the failure of the landlord to give a notice to quit during the first eviction proceeding in 1960 though he might and ought to Have raised it The tenant was. therefore, barred by constructive res judicata on the principle of Explanation IV to section 11, Civil P. C from raising the plea of notice in the second eviction proceedings. Lastly he held that the acceptance of rent by the landlord did not amount to a waiver of the notice to quit or the creation of a fresh tenancy in favour of the tenant by the landlord.

6. The Rent Control Tribunal generally agreed with the Controller but thought that the notice dated 25th October, 1967 given by the landlord to the tenant amounted to a waiver of the notice to quit dated 9th October, 1964 within the meaning of Illustration (b) to Section 113 of the Transfer of Property Act. He, therefore, reversed the decision of the Controller and dismissed the eviction petition, Hence this second appeal by the landlord.

7. Before the landlord can succeed in this appeal, he his to rebut the more contentions advanced by the tenant in the Courts below and repeated b fore me. I shall examine them in the order in which they are stated above.

8. 1 The tenancy in this case originated prior to 1st December 1962 when Section 106 of the Transfer of Proparty Act first became applicable to the Union territory of Delhi. It did not, therefore, apply to this tenancy in terms. On the principle of that section, only a reasonable notice had to be given by the landlord to the tenant to terminate the contractual tenancy. The two requisites of a reasonable notice are (1) it should be for a minimum period of fifteen days and (2) it should unequivocally declare the intension of the landlord to terminate the tenancy Both these requirements are satisfied by the notice dated 9th October, 1964. It called upon the tenant to pay the arrears of rent within two months and stated that a suit for eviction would be filed against him thereafter. It, therefore, gave more than the minimum period of fifteen days to the tenant to vacate the premises It is true that it did not use the language of Section 106 that on the failure of the tenant to pay the rent, the tenancy would be terminated. Nevertheless it clearly declared the intention of the landlord that proceedings would be taken againsta the tenant to evict him on his failure to pay the rent, In Mangilal v. Suganchand Rathi,2 the first notice to quit was also a composite notice demanding the arrears of rent and threatening to file a suit for eviction if the rent was not paid The Supreme Court observed as follows about the character of the said notice:

“The High Court has, however, treated this as a composite notice under Section 4(a) of the Accommodation Act and Section 106 of the Transfer of Property Act and in our opinion rightly. It has to be observed that the plaintiffs, after requiring the defendant to pay the rental jarrears due up to the end of March, 1959 within one month from the date of service of the notice, proceeded to say ‘-failing which suit for ejectment will be filed”. Taese recitals clearly indicate the intention of the landlord to terminate the tenancy of the defendant under the relevant provisions of both the Acts.”

The notice dated 9th October, 1964 in the preseut case, on the same reasoning, was also a comosite notice both under Section 14(1) (a) of the Delhi Rent Control Act, 1958 and under the principle of Section 106 of the Transfer of Property Act and was valid for both the purposes. The contractual tenancy was duly terminated by this notice before the second eviction petition was filed on 31st December, 1964.

9. Further, the decision cited in Bhaiya Punjalal Bhagwandin v. Deve Bhagwatprasad Prabhuprasad . 1963 3 S.C.R 312., by the Supreme Court shows that High Court decisions existed from 1953 onwards taking the view that termination of the contractual tenancy was necessary before an eviction petition could be filed before the Rent Controller. The tenant might and ought to have taken therefore the plea that the first eviction petition filed by the landlord in 1960 was not tenable inasmuch as the contractual tenancy had not been terminated by the landlord before filing the eviction petition. As the tenant did not raise this plea in the first eviction case between the same parties though he might and ought to have raised it, he Is barred by the principle of res judicata from raising that plea again in the second eviction proceedings. It is well-known that the principle of res judicata is not confined to Section 11 of the Civil P. C. in Yoginder Pal v. Copmeteut Authority . 1969 R.C.R 1075., I had occasion to hold that it applied to rent control proceedings. In Manmohan Lal v. B.D Gupta . 1964 66 P.L.R 1005., the principle of constructive res judicata was also applied to rent control proceedings by Falshaw, C.J and Mehar Singh, J. of the Punjab High Court

10. Was the first notice dated 9th October, 1964 waived by the landlord firstly by accepting the arrears of rent and secoudly by giving the second notice to quit on 25th October, 1967? The effect of such a waiver under Section 113 of the Transfer of Property Act would be that the same tenancy which the landlord purported to terminate by the notice dated 9th October, 1964 would continue inasmuch as the only notice which purported to terminate it is waived The right created in favour of the landlord by the termination of the tenancy was for his exclusive benefit. He could therefore waive the said right and restore the relationship of landlord and tenant between the parties as it stood before the notice dated 9th October 1964 was given. To constitute such a waiver the requirements of Section 113 of the Transfer of Property Act have to be satisfied. Section 113 is as follows:

“A notice given under Section 111, CI. (h), 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.

Illustrations

(a) A, the lessor, gives B, the lessee, notice to quit the property leased The notice expires. B tenders, and A accepts, rent which has become due in respect of the property since the expiration of the notice. The notice is waived.

(b) 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. The first notice is waived”

11. Section 113 applies only when a periodical tenancy is terminated by a notice to quit under Section 111(h) as it was in the present case by notice dated 9th October, 1964. The notice is waived only with the express or implied consent of the tenant by any act of the landlord showing an intention to treat the lease as subsisting. In other both the landlord and the tenant must agree to treat the lease as sub-sisting. The provisions of section 113 apply when a periodical tenancy is terminated by a notice to quit and the waiver of the notice to quit results in the restoration of the old tenancy. Section 116 of the Transfer of Property Act. on the other hand, applies when a lease is determined either by efflux of time or by a notice to quit. If the landlord assents to the continuing in possession, then 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. Here also, the lardlord and the tenant both must agree that in spite of the determination of the tenancy, a new lease between them should be created.

12. The principle of both Sections 113 and 116 is. therefore, the same, namely, an agreement between the landlord and the tenant to continue the tenancy. The only difference is that under Section 113 the old tenancy continues to subsist while under Section 116 the tenancy is renewed on the same terms The crucial question under both the sections is whether the landlord has consented to the continuance of the tenancy in favour of the tenant. The consent of the landlord is mainly a question of fact. In the absence of evidence to the contrary such consent would be inferred under Section 113 from the conduct of the landlord. Two illustrations of such conduct given under Section 113 are (a) the acceptance of rent by the landlord after the termination of the tenancy and (b) the giving of a second notice to quit after the first had expired. It is important to remember that these illustrations only raise presumptions of fact or at best rebuttable presumptions of law in the absence of evidence to the contrary. These illustrations do not raise irrebuttable or conclusive presnmptions of law, as the learned Rent Control Tribunal almost seems so have thought

13. It is not as if the effect of acceptance of rent or the giving of a second notice to quit is to waive the first notice to quit always and invariably. On the other hand, such conduct on the part of the landlord would be normally good evidence of his intention to waive the notice to quit. In suitable cases, the burden of proof would be on the landlord to show that despite such conduct he did not intend to waive the notice to quit. The question to be considered in each case is whether such conduct stands by itself and gives rise to the presumption of waiver or whether such conduct is accompanied by other acts which prevent us from raising the presumption of fact about the waiver of the the notice to quit

14. The acceptance of the rent by the landlord does not stand alone. The contractual tenancy of the tenant has been determined by the landlord by the notice dated 9th October, 1964. But the land-lod was still unable to evict the tenant unless and until he proved that he was entitled to do so under any of the provisos to Section 14(1) of the Delhi Rent Control Act, 1958. In view of this hurdle placed in the way of the landlord in ejecting the tenant, the landlord has to accept rent from the tenant as the landlord is not entitled to evict the tenant merely by virtue of the termination of the contractual tenancy. In those cases in which a tenant is not protected by the rent control legislation, a landlord is entitled to evict the tenant merely by giving a notice to quit. After giving such notice to such a tenant, the landlord cannot normally claim to accept rent from the tenant without giving rise to the presumption of fact that he thereby waives the notice to quit. Of course it is still open to the landlord to explain that he accepted the rent by way of damages for use and occupation and without waving the notice to quit. If the conduct of the landlord makes it clear that the rent was not accepted with the intention to treat the lease as subsisting within the meaning of Section 113, the rebuttable presumption of fact arising thereunder can be rebutted by the landlord

15. In those cases in which a tenant is protected by rent control legislation, the law itself prevents the presumption of waiver arising under Section 113. For, the landlord is not expected to suffer and allow the tenant to continue in possession without payment of any rent or damages for use and occupation of the premises to the landlord. It would be unfair to expect that the landlord should not accept any rent or damages for use and occupation of the premises even though the landlord has no right to evict the tenant by merely terminating the contractual tenancy. The acceptance of the rent by the landlord from a tenant whose contractual tenancy is terminated but who, as a statutory tenant, is protected by rent control legislation is, therefore, explained by the inability of the landlord to evict the tenant under theordinary law. Such acceptarce of rent does not therefore, show an intention on the part of the landlord to treat the lease as subsisting.

16. For the same reasons, the Federal Court in Kai Khushroo Bezonjee Capadia v. Bai Jerbai Hirjibhoy Warden,6 and the Supreme Court in Ganga Dutt Murarka v. Kartik Chandra Das . 1989 3 SC. R. 813., held that the acceptance of rent by the landlord did not constitute his assent to the renewal of the tenancy in favour of the tenant under Section 116 of the Transfer of Property Act. The ratio of those decisions is equally applicable to the facts of the present case arising under Section 113 of the Transfer of Property Act as the principle underlying Ss. 116 and 113 is the same namely, the assent of the landlord alone can revive or renew the tenancy after it is once terminated.

17. The second notice to quit dated 25th October 1967 was given by the landlord after the eviction petition and already been filed by him against the tenant and while be was still pursuing the same against the tenant. The principles for determining whether in a particular case a second notice to quit operates as a waiver of a previous notice to quit are the same as those discussed above relating to such waiver by the acceptance of rent by the landlord. The waiver of a notice to quit may ‘come about by any conduct of the landlord showing an intention to treat the lease as subsisting. Such conduct is not confined to acceptance of rent or giving of a second notice. It may consist, for instance, in an agreement between the parties without either acceptance of rent or giving of a second notice to quit. The illustrations to Section 113 only exemplify the type of conduct on the part of the landlord which would amount to waiver The second notice to quit given by the landlord on 24th October, 1967 cannot lead to the inference that the landlord consented to treat the lease as subsisting inasmuch as the landlord had already applied for the eviction of the tenant and continued to pursue the application against the tenant.

18. It is only if Illustration (b) to Section 112 is regarded as raising an irrebuttable presumption of law of waiver in favour of the landlord that the second notice in the present case can have such effect. But as already stated above, there is no such conclusive presumption, The presumption of fact raised by the second notice to quit is rebutted by the fact that the landlord was overtly acting to throw the tenant out of the premises. How can it be said then that in giving the second quit notice the landlord was agreeing with the tenant to treat the lease as subsisting? Though there is a conflict of High Court decisions as to whether the giving of a second notice to quit after the eviction proceedings are filed can amount to a wasyer under Section 113 of the Transfer of Property Act or not, the decision of the Supreme Court in Ganga Dutt Murarka's case conclusively, settles this question also. The notice given in that case on 10th October, 1950 after the tenancy had already come to an end called upon the tenant “to quit, vacate and deliver possession of the premises occupied.” It described the tenant as a “monthly tenant”. It was, therefore, argued for the tenant under Section 116 of the Transfer of Property Act it had the effect of the assent of the landlord to the continuance of the tenant in possession The Supreme Court, however, negatived the argument in the following words.

“It is true that in the notice dated 10th October, 1950, the appellant is described as a “monthly tenant” but that is not indicative of conduct justifyiag an inference that a frash contractua tenancy. had come into existence, Within the meanimg if the West Bengal Premises Rent Control Act, 1950, the appellant was a “tenant” and by calling the appellant a tenant the respondents did not evince an intention to treat him as a coatractual tenant. The use of the adjective “monthly” also was not indicative of a contractual relation. The tenancy of the appellant was determined by efflux of time and subsequent occupation by him was not in pursuance of any contract express or implied, but was by virtue of the protection given by the successive statutas. This occupation did not confer any rights upon the appellant and was not required to be determined by a notice prescribed by Section 106 of the Transfer of Property Act.”

19. The contrary decisions in Manickla Day Chaudhuri v. Kmdambini Dassi . A.I.R 1926 Cal. 763., S. Hari Singh v. Narain Dass . A.I.R 1945 Lah. 175. Bapurao v. Waman . A.I.R 1963 Bom 179 and Ram Dayal v. Jawala Prasad . A.I.R 1966 All 623., are distinguishable for two reasons namely:—

(1) They do not take into consideration that the Illustrations to section 113 raise only rebuttable presumptions of fact; and

(2) They do not consider the Supreme Court decision in Ganga Dutt Murarka's case.

20. The last paragraph of the notice dated 25th October, 1967 given by the counsel of the landlord was as follows:

“This notice is without prejudice to my client's rights for your ejectment on the grounds alleged in the petition already pending in court and referred to above.”

21. This is significant to show that the landlord insisted on the eviction of the tenant even while giving the notice. Such express instance in the notice itself makes it impossible to infer from the notice that the landlord was thereby agreeing to waive the previous notice to quit and to treat the tenancy as subsisting. I, therefore, and that the notice dated 9th October, 1964 was not waived by the landord when he accepted arrears of rent subsequently and when he gave the second notice to quit on 25th October, 1967. The second notice was of no effect as it was given during the pendency of the eviction proceedings and it did not result in the waiver of the first notice to quit.

22. Admittedly to the tenant did not pay the arrears of rent from February, 1964 to October, 1964 on the ground that they were barred by limitation The order by the Controller under section 15(1) related to all the arrears of rent. As the tenant did not pay all the arrears it cannot be said that the tenant made payment or deposit as required by sub-section (1) of section 15. The tenant cannot, therefore, seek the benefit of sub-section (2) section 14 and pray that no order for the recovery of possession of the premises be made in favour of the landlord under section 14(l)(a) of the Delhi Rent Control Act. Secondly the tenant has admittedly enjoyed the benefit of sub-section (2) of section 14 of the Delhi Rent Control Act, 1958 by getting the first eviction proceeding of the landlord dismissed on payment of rent. The proviso to subsection (2) of section 14 prohibits the tenant from seeking the same benefits in a subsequent eviction proceeding. The tenant in the present case is not, therefore, entitled to get the second eviction proceedings dismissed on the ground of payment of rent by him to the landlord. Learned counsel for the respondent-tenant argued that the premises in the second eviction proceedings were different from those in the first eviction proceedings. Both the learned lower courts have arrived at a concurrent finding of fact and law that the premises were the same. An addition of some more built up area to the premises by the landlord doe3 not change the identity of the premises. Moreover, the contract of tenancy is formed primarily by the parties, the terms of tenancy and the rent. All. these remained the same before and after the addition of the premises. It cannot be said, therefore, that the contract of tenancy before the addition was different from the one after the addition. The proviso to sub-section (2) of section 14, therefore, operates squarely against the tenant. I find so. Section 62 of the Contract Act has no application to the present case in as much as there was no agreement between the parties that the addition to the premises should result in a new contract of tenancy.

23. For the above reasons, the decision of the Rent Control Tribunal is set aside and that of the Rent Controller is restored. The appeal is allowed in the above terms but without any order as to coats. Time to vacate the premises is granted to the respondent for three months on the condition that he pays rent arrears up-to-date and continues to pay the monthly rent till May, 1971.

24. Appeal allowed.