P.N Mookerjee, J.:— The appellant before us was the defendant in the suit for ejectment, out of which the instant appeal arises.

1. The suit was in respect of the southern portion of premises No. 6, Marcus Square, Calcutta. It was held by the defendant as a tenant under the plaintiffand prior to the plaintiff's purchase of the disputed premises, under his predecessor, at a rental of Rs. 105/- per month, the tenancy running according to the English calendar month. The plaintiff purchased the disputed premises from the previous landlord by and under a kobala, dated January 25, 1958. The defendant duly attorned to the plaintiff after the latter's above purchase. Thereafter, a notice, dated November 24, 1958, was served on the defendant by the plaintiff on November 25, 1958, purporting to terminate the defendant's tenancy and asking him to quit and vacate the disputed premises on the expiry of the month of December, 1958. This notice not having been complied with, the instant suit was filed on February 11, 1959.

2. The suit was contestedand in paragraph 6 of the written statement, a plea was taken as to the invalidity and insufficiency of the above notice. At the time of trial also, a point of invalidity of the notice under inter alia Sec. 13(6) of the West Bengal Premises Tenancy Act, 1956, appears to have been urged and to have engaged the attention of the learned trial Judge. The defence, however, was overruled and the plaintiff's suit was decreed. The suit, it may be mentioned, was on the ground of the plaintiff's reasonable requirement of the disputed premises for his own occupation. This ground was also stated in the notice. The present appeal was filed in this court on April 2, 1962, and in ground No. 7 of the Memorandum of Appeal, the point about the invalidity of the notice was taken.

3. For reasons, already given by us in our judgment, delivered today in F.A 449 of 1962, the instant notice also must be held to be bad and to be invalid and insufficient for purposes of Sec. 13(6) of the West Bengal Premises Tenancy Act, 1956. It is, no doubt, a valid notice to quit. It is also certainly more than a month's notice but it is not a notice of suit, either expressly or by necessary implication, as required by the said section under the Special Bench decisions of this court in F.A 444 of 1961 [Suraya Properties (P) Ltd. v. Bimalendu N. Sarkar, 67 C.W.N 977] (1) and F.A's Nos. 101 and 102 of 1961 (M.K Bhimani v. Keshab Chandra Basu) (2). The mere mention of the ground of ejectment, although that may be a ground, relevant for purposes of Sec. 13(6) of the above Act, or, for the matter of that, of Sec. 13(1) thereof, berring the excepted clauses (j) and (k), would not, as already held by us in our aforesaid judgments, make it a notice of suit by necessary implication. The notice in question is, obviously, not an express notice of suitand in the above view, it will not be also a notice of suit by necessary implication. It will, accordingly, be invalid and insufficient as a notice of suit for purposes of Sec. 13(6) of the West Bengal Premises Tenancy Act, 1956. On this ground, the trial court's decree must be vacated, the instant appeal should succeed and the plaintiff's suit should fail.

4. The other questions, raised in this proceeding,—not relating to the notice but touching the merits of the case,—not being necessary for consideration now in the above view of the matter, are being left open by us.

5. Mr. Sen, appearing on behalf of the plaintiff respondent, while realising that the impugned notice might be invalid or insufficient for purposes of Sec. 13(6) of the West Bengal Premises Tenancy Act, 1956, and this invalidity or insufficiency may lead to the dismissal of his client's suit, as aforesaid, sought to argue that the above objection is no longer open to the defendant appellant in this court on two grounds. In the first place, he urged that this point was not specifically taken in either the written statement or in the trial court, or, even in the Memorandum of Appeal here, and accordingly, it must be deemed to have been waived. In the second place, Mr. Sen urged that, in the instant case, the tenant's defence against delivery of possession was struck out under Sec. 17(3) of the West Bengal Premises Tenancy Act, 1956, and the order of the learned trial Judge, striking out the defence, as aforesaid, cannot be challenged in law as, obviously, it is a correct order on the merits. Accordingly, Mr. Sen argues that the objection to the notice under Sec. 13(6) of the West Bengal Premises Tenancy Act, 1956, which, according to him, is only part of the special defence, provided under the aforesaid Act, must be deemed to have been taken away from the defendant and it is no longer open to him to urge this point in support of this appeal.

6. In our view, neither of the above two contentions of Mr. Sen can be accepted. As we have said above, paragraph 6 of the written statement and the arguments and discussions in the trial court in the instant case, as appearing from its judgment, and ground No. 7 of the Memorandum of Appeal in this court will sufficiently cover inter alia the instant point as to invalidity and insufficiency of the notice under Sec. 13(6) of the West Bengal Premises Tenancy Act, 1956. Assuming, however, that the point was not raised earlier, as aforesaid, even then we are of the view that the plea of waiver is utterly inappropriate in a case of this kind. Waiver, as it is well known, is intentional relinquishment of a known right. It is true, that such intention may be inferred from circumstances, but the right in question must be a known right. This, indeed, is well established in this court (Vide—Dhanukdhari Singh v. Nathima Sahu, (3) 11 C.W.N 848) and it has only recently been re-affirmed by the Supreme Court in Manak Lal, Advocate v. Dr. Prem Chand Singhri (4) A.I.R 1957 S.C 425 at p. 431. Their Lordships of the Supreme Court have in the case, just cited, categorically laid down that the party, against whom waiver is pleaded, must have known about the relevant facts and of his right, which was said to have been waived. Judged by this test, the plea of waiver in the instant case would be unavailing. The law on the point of the notice under section 13(6) of the West Bengal Premises Tenancy Act, 1956, and particularly, whether it will be a notice to quit or a notice of suit or a combined notice to answer both the above descriptions, was unsettled and was in a state of confusion or in a fluid state until the recent Special Bench decision in FA. 444 of 1961 (See also F.A's Nos. 101 and 102 of 1961), above cited. If the law was unsettled and the position was not clear as to the nature of this particular notice, it will,— normally, at least, and generally speaking, that is, in the absence of very strong circumstances to the contrary,— be utterly inappropriate to uphold a plea of waiver in respect of such a notice. It is significant to note, in this connection, that the plaint, in the instant case, refers to the notice in question only as a notice to quit. There is no reference, in the plaint to this notice as a notice of suit. It is difficult, in the above context, in the circumstances of this case, to sustain a plea of waiver of the disputed notice or of any defect thereof as a notice of suit, even assuming that no specific objection was taken on the ground that it is not a proper notice of suit under Sec. 13(6) of the West Bengal Premises Tenancy Act, 1956. As we have said above, however, the above assumption will not be correct hereand accordingly, even on facts or as a matter of fact, the plea of waiver cannot be sustained but, apart from facts, even as a matter of law, the said plea, as seen above, cannot stand.

7. Turning now to the other submission of Mr. Sen, we are of the view that, whatever be the position, whether the entire defence, including defences under the general law, or, only the special defences under the particular Rent Control legislation, are struck out under Sec. 17(3) of the West Bengal Premises Tenancy Act, 1956, there can be little doubt that, so far as Sec. 13(6) is concerned, that section [Sec. 13(6)] imposes a bar to the filing of a suit by the plaintiff, if the suit be one, as contemplated under the said section, without service of an appropriate notice under the said statutory provision. It is, in essence, a point of jurisdiction or, in other words, the court has no jurisdiction to entertain the suit in the absence of such a notice. It is not, strictly, a part of the tenant's defence. It is a part of the requirement of the plaintiff to entitle him to maintain the suit. The mere striking out of the tenant's defence,—be it the general defence under the law or only the special defence, if any, under the above Act,— would not, therefore, affect this position and improve the plaintiff's lot and its only effect will be that the tenant, whose defence has been struck out, will be placed merely in the position of one, who has not defended the suit and the suit would proceed ex parte. In other words, the result will be that the suit will be heard ex parte. Even at this ex parte hearing, however, the plaintiff will have to prove that he has complied with all the requirements, which would entitle him to maintain the suit. The position, in regard to the notice under Sec. 13(6), in this respect, is, in no way, different from the position in regard to a notice to quit and it is, certainly, well and firmly established that, even in an appeal from an ex parte decree for ejectment, the tenant is entitled to challenge the validity and sufficiency of the notice to quit. Indeed, in cases, where the tenant's defence has been struck out, either under Sec. 17(3) of the recent Act of 1956 or under Sec. 14(3) proviso of the older Act of 1950, it has never been held except, possibly, on one or two occasions [Vide, in this connection, Idannessa Bibi… v. Syed Abdul Wadud…., (5) 63 C.W.N 170 at pp. 174-5, citing the unreported decision of Chunder, J., dated June 10, 1953, in S.A No. 243 of 1953, Sri Gopal Jhawar v. Gangadas Kothari (6)] that the tenant is precluded from challenging the validity of the notice to quit in an appeal from the ex parte ejectment decree. We need only add that we do not agree with the said view on the point, as appearing from the said decision or decisions or as taken, or apparently, taken therein.

8. We would, accordingly, hold that Mr. Sen's submission on this point, too, cannot be accepted and must be overruled.

9. We may note, in passing, that, while on the point of waiver, Mr. Sen made a reference to the Privy Council decision in Vellayan Chettiar v. The Government of the Province of Madras, (7) 1947 A.I.R 1947 P.C 197, where the Judicial Committee held that a notice under section 80 of the Code of Civil Procedure could be waived.

10. We do not, however, think that that decision is of any help to the respondent. There can be no doubt about the position,—and that is the utmost that Mr. Sen can argue on the above-cited authority, in his favour,—that, where it is capable of waiver and where the necessary elements have been established, the plea of waiver, even in respect of a notice under Sec. 13(6), can be entertained and given effectto As we have shown above, however, the plea of waiver fails here on the merits, as the right, which the defendant is said to have waived, was not known and could not be known sufficiently,—at least, before the above Special Bench decision.

11. We may add further that the above Privy Council case, cited by Mr. Sen, may even go against his contention of waiver as, obviously, waiver, if any, in the instant case, may, at the highest, be implied waiver or waiver by implication, for which stringent conditions, almost the same as in the case of estoppel (Vide p. 199 of the Report) are necessary on the above cited authority, and such conditions are, in no view of the case, present here.

12. In the above view, we would overrule the special arguments, raised by Mr. Sen in defending the instant appeal, and we would allow this appeal, set aside the judgment and decree of the trial court and dismiss the plaintiff's suit only on the ground of invalidity or insufficiency of the notice in question as a notice of suit under Sec. 13(6) of the West Bengal Premises Tenancy Act, 1956. All other questions, arising in this case between the parties, are expressly left open.

13. In the circumstances of this case, the parties will bear their own costs throughout.

D. Basu, J.:— I agree.

C.R.D