S.K Bhattacharyya, J.:— This appeal by the tenant defendant No. 1 under Clause 15 of the Letters Patent is directed against the decision of Gupta, J. affirming the decision of the Courts below, whereby the plaintiff respondent's suit for eviction of the defendant appellant from a portion of the disputed premises was decreed.

2. The suit was initially instituted against the present appellant and four others for eviction from the suit premises on the ground of default in the payment of rent. The trial Court decreed the suit against the present appellant holding him to be the tenant in respect of the suit premises and dismissed the suit against the other defendants on the ground that they were unnecessary parties. Against the said decision, the defendant went up in appeal to the first appellate Court and the appeal was dismissed by the Subordinate Judge, 8th Court, Alipore by his judgment and decree dated September 26, 1958. Both Courts found the appellant to be a defaulter in the matter of payment of rent for period from February to November, 1954. The appellant thereupon filed a second appeal to this Court and the only point canvassed in the said appeal was the validity of the notice to quit served upon the defendant appellant. The correctness or otherwise of the finding of the Courts below with regard to the default was not in dispute in the second appeal.

3. It appears from the record that the notice, on the basis of which the defendant appellant was asked to quit and vacate the premises in suit was issued on May 10, 1955. The said notice has been marked Ext. 3 in this suit. It further appears from the facts of the case that on February 22, 1955 Sm. Indu Prova Ghose, predecessor of the present respondents caused another notice to quit to be issued upon the appellant requiring him to quit and vacate the disputed premises with the expiry of the month of March, 1955 and both the notices were duly served on the appellant. The earlier notice was marked as Ext. C in the suit before the trial Court.

4. Before Gupta, J., the bone of contention between the parties was whether the earlier notice dated February 22, 1955 was waived so that the subsequent notice dated May 10, 1955 would be sufficient to terminate the tenancy of the appellant. Gupta, J. came to the finding that the earlier notice must be treated as having been waived with the implied consent of the tenant and accordingly overruled the contention of Mr. Guha appearing for the appellant. In that view of the matter, he dismissed the appeal. Hence, the instant appeal with leave.

5. Mr. Amar Kumar Mukherjee the learned Advocate appearing for the appellant contended before us in the first place that the second notice was not legally valid to terminate the tenancy of the defendant, the first notice not having been waived with the implied or express consent of the appellant. In the next place, Mr. Mukherjee contended that the first notice was sufficient to terminate the tenancy of the appellant, and the tenancy having been so terminated, the appellant continued to be a statutory tenant under the provisions of the West Bengal Premises Rent Control Act, 1950. Consequently there could be no question of termination of the tenancy of a statutory tenant by the second notice to quit. Lastly, Mr. Mukherjee contended that the question of waiver not having been raised or pleaded in the plaint, it could not be raised for the first time in the second appeal, in the absence of express pleading.

6. We propose to take up the first and second objections of Mr. Mukherjee together. It is no longer disputed that the predecessor of the respondent Sm. Indu Prova Ghose caused two notices to quit to be issued and served on the appellant and both the notices were replied to by the appellant's Advocate. The notice to quit dated February 22, 1955 (Ext. C) was replied to by the appellant's Advocate on March 31, 1955 wherein it was disputed that the appellant was a defaulter. It was further asserted therein that the notice of ejectment dated February 22, 1955 was unlawful, invalid and inoperative in law and the appellant was not bound to comply with the same. A copy of the said letter has been marked Exhibit A/10 in the trial Court. Subsequently, when the landlord issued the second notice to quit on May 10, 1955 (Ext. 3) it was mentioned therein that the previous notice to quit, dated February 22, 1955 was to be treated as cancelled. The appellant replied to the said notice through his lawyer on May 30, 1955 denying that he was a defaulter and asserted that the notice to quit was unlawful, invalid and inoperative in law and his client was not bound to comply with the same. No objection was however taken with regard to the averment that the earlier notice dated February 22, 1955 was to be treated as cancelled. It is against this background that we have to examine the question of waiver in the instant case.

7. Section 113 of the Transfer of Property Act is in these terms:

“A notice under Section 111, Cl. (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.”

8. Mr. Mukherjee appearing for the appellant contended that in order to constitute a valid waiver, not only there must exist an intention on the part of the person giving the notice to treat the lease as subsisting but it could only be so done, with the express or implied consent of the parties to whom it is given. He relied on the decision of the Supreme Court in the case of Calcutta Credit Corporation Ltd. v. Happy Homes (P.) Ltd., (AIR 1968 SC 471) and stated that if the party served with the notice accepts the notice and acts upon it, the party serving it, will be estopped from denying its validity. In that case, the Supreme Court observed at page 474 that “if the notice is duly given, the tenancy stands determined on the expiry of the period of the tenancy; even if the party served with the notice does not assent thereto, the notice takes effect.” In the instant case, before the expiry of the period stipulated in the first notice, the appellant through his Advocate disputed the validity of the notice and asserted that he was not bound to comply with the same (vide Ext. A/10). It is, therefore, clear that the defendant refused to accept the earlier notice before the expiry of the period stipulated in the notice, Ext. C and the landlord by issuing a subsequent notice on May 10, 1955 alleging therein that the earlier notice stands cancelled, clearly intended the lease to subsist and the question of landlord unilaterally waiving the earlier notice would not, therefore arise. Illustration (b) to Section 113 of the Transfer of Property Act clearly shows that a tenant continuing to remain in possession of the demised premises after the expiry of the lease impliedly consents to waive the first notice to quit, when the landlord serves him a second notice indicating thereby his intention to treat the lease as subsisting, even after the termination of the period. The letter, Ext. A/10, clearly shows that the appellant impliedly consented to waive the first notice and when the landlord indicated his intention to treat the lease as subsisting by issuing another notice, consent necessary for the purpose of constituting waiver, in our view, would be complete. It is worthy of note that although the defendant was served with two notices, prior to the suit in the original written statement filed by him, no objection was taken that the earlier notice dated February 22, 1955 was sufficient to terminate his tenancy. In paragraphs 5 and 9 of the written statement filed by the defendant appellant, the validity and sufficiency of the notice in question on which the suit was based, was disputed. But the defendant did not choose to contend that the earlier notice was in fact never agreed to be waived by him. Long after the filing of the written statement, the appellant filed an additional written statement by inserting two more paragraphs in the defence, which have been numbered 5 (a) and 5 (b). In Paragraph 5 (b) of the amended written statement, the defendant no doubt raised the issue of the earlier notice dated February 22, 1955, but that was with regard to the defaults alleged to have been committed by the defendant. In the said amended written statement also, the defendant never asserted that the earlier notice was sufficient to terminate his tenancy and the suit based on latter notice was therefore not maintainable. For these reasons discussed above, we therefore, agree with Gupta, J. that the earlier notice must be taken to have been waived with the implied consent of the appellant.

9. Mr. Mukherjee next contended that his client should be treated as a statutory tenant within the meaning of Section 2 (II) of the West Bengal Premises Rent Control Act, 1950 and the contractual tenancy ceased to subsist as and from the date of the expiry of the first notice. We have already pointed out that the earlier notice in the instant case had been waived. Consequently, the question of a statutory tenancy having come into operation did not arise. We may in this connection refer to the decision of the Supreme Court in the case of Ranjit Chandra Chowdhury v. Mohitosh Mukherjee, ((1969) 1 SCC 699 : AIR 1969 SC 1187). Mr. Mukherjee sought to rely on the decision of the Supreme Court in the case of Ganga Datt Murarka v. Kartick Chandra Das, (AIR 1961 SC 1067) and drew our attention to the observation made by the Supreme Court at page 1069 where it was observed that it was well settled that where a contractual tenancy to which the Rent Control legislation applies, has expired by efflux of time or by determination by notice to quit and the tenant continues is possession of the premises, acceptance of rent from the tenant by the landlord after the expiration or determination of the contractual tenancy will not afford ground for holding that the landlord had assented to a new contractual tenancy. The Supreme Court there followed the earlier decision of the Federal Court in the case of Kai Khushroo v. Bai Jerbai, (AIR 1949 FC 124). Ganga Dutt's case came to be interpreted by the Supreme Court in Ranjit Choudhury's case (Supra) and the Supreme Court pointed out that landlord accepting rent after termination of a tenancy does not assent to the creation of a new contractual tenancy but to the continuation of the old tenancy. Their Lordships thereafter referred to Happy Homes' case (AIR 1968 SC 471) pointing out that under Section 113 of the Transfer of Property Act a notice is waived by an act on the part of the person giving it showing an intention to treat the lease as subsisting, provided there is express or implied consent of the person to whom it is given. In the instant case, as we have already pointed out, there was implied consent on the part of the tenant to waive the first notice, with the result the old tenancy must be deemed to have continued and by the subsequent notice, that tenancy was sought to be terminated. In Ranjit Choudhury's case, the tenant was served with a notice to quit dated August 11, 1955 requiring him to quit and vacate with the expiry of the month of August, 1955. Thereafter the landlord accepted rent upto September, 1955 and went on accepting rent from November, 1955 to February, 1956. Thereafter he served the second notice on February 9, 1956 requiring the tenant to quit and deliver up possession with the expiry of the month of February, 1956. The Supreme Court held that the landlord by accepting rent did not expressly assent to the creation of a new tenancy but the old tenancy continued, presumably under the same terms and conditions. We have already referred to the fact that the tenant appellant in the instant case before the expiry of the period referred to in the first notice, indicated his intention to continue in occupation of the premises thereby impliedly consenting to waive the notice and had actually continued in occupation of the premises after the expiry of the period stipulated in the said notice and the landlord by issuing a subsequent notice on May 10, 1955 indicated his intention to treat the old lease as subsisting. The contention of Mr. Mukherjee that the appellant became a statutory tenant after the expiry of the first notice cannot, therefore, be accepted.

10. Lastly, Mr. Mukherjee's contention that the question of waiver not having been raised or pleaded in the plaint should not have been allowed to be raised for the first time in the second appeal in the absence of express pleading cannot, in our view, be accepted. It was Mr. Mukherjee's client who was permitted to canvass this question at the second appeal stage even though no specific objection was taken in the pleadings nor was any issue framed or tried before the first two Courts. The learned Judge sitting singly in this Court allowed Mr. Mukherjee's client to canvass this point for the first time in the second appeal, and the appellant having done so is not, in our view, entitled to fall back on this plea or to plead defect in the plaint. It is well settled that in an appeal under Letters Patent even a point involving a question of law, cannot be agitated for the first time, if the said point was never taken either in the pleadings or before the trial Court. In the case of Shanbaggakannu v. Muthu Bhattar, ((1972) 4 SCC 685 : AIR 1971 SC 2468), the Supreme Court held that in an appeal under the Letters Patent a point involving not only question of law but also that of facts, cannot be allowed to be agitated when the point was never taken in the plaint or before the trial Court, first appellate Court and High Court in second appeal nor was it raised in the memorandum of appeal at any stage.

11. That, in our view, is sufficient to clinch the issue. A Division Bench of this Court in the case of Assistant Collector of Central Excise v. National Tobacco Co. of India Ltd., (AIR 1967 Cal 269) also took the same view earlier. A new case, it was pointed out by the Division Bench, not raised before the lower Court or in the grounds of appeal although the appellant had an opportunity of amending the memorandum of appeal, could not be allowed to be urged at the hearing and the Division Bench thereupon proceeded on the footing that Rule 10 of the Central Excise Rules (1944) applied which automatically excluded Rule 10-A in that case. We are, therefore, unable to accept the contention of Mr. Mukherjee more particularly as this point was allowed to be canvased before this Court in second appeal at the instance of Mr. Mukherjee's client and cannot, as such, be thrown out in limine. This abjection of Mr. Mukherjee therefore fails.

12. Hence, for the reasons discussed above, the instant appeal fails and is accordingly dismissed with costs

13. A.K Janah, J.:— I agree.

14. Appeal dismissed.