K.C Agrawal, J.:— This is a revision under Section 25 of the Provincial Small Cause Courts Act, filed by Vishwanath Prasad Didwaria, the plaintiff, against the judgment and order passed in S.C.C Suit No. 64 of 1984.
2. House No. 24/25, Karachikhana in the city of Kanpur, belonged to the applicant Vishwanath Prasad Didwaria, Hari Krishna Kedia, the defendant, was its tenant on the forth floor on the monthly rent of Rs. 450. The plaintiff filed the suit for eviction, damages, electricity charges, enhanced water-tax valuing the suit at Rs. 11,789. He claimed that the house was since a 1978's construction, as such the U.P Act XIII of 1972 did not apply. He claimed that the tenancy of the defendant had been terminated by a notice, dated 16-2-1983, which has served on the defendant on 1-3-1983. The suit was contested by the defendant and it was alleged that the defendant was not in default and, as such, was a lawful tenant. In paragraph 6 of the written statement, the defendant pleaded that he has paid Rs. 3,850, as rent and electricity charges upto October, 1983, to the plaintiff vide cheque No. KKKS 271161, dated 3-11-1983, which has been deposited by the plaintiff himself in his account.
3. The plaintiff filed a re-application. He, although admitted the receipt of Rs. 3850, but denied that the same had been paid by the defendant to the plaintiff as rent and electricity charges. It was alleged that the defendant had fraudulently deposited the cheque in his account and when the plaintiff came to know about the same, he made enquiries from the bank and was told that it was a fraudulent deposit made by the dependant. On the question of adjustment of the amount of Rs. 3,850, the plaintiff asserted in the re-application that “However, the plaintiff adjusted the said amount of Rs. 3,850 Towards two months' rent, i.e, of February and March, 1983, and damages already due and electricity charges”.
4. One of the issues, which cropped up, was whether the notice terminating defendant's tenancy, which was serve on 1-3-1983, had been served and the defendants tenancy subsisted despot termination.
5. For proving his claim that the deposit of Cheque No. KKKS 271161 was surresptitious, the plaintiff produced Vijai Kumar Trivedi, who was an employee yes of the Central Bank of India and also himself entered in the witness-box. To support his case, the defendant appeared at D.W 1 and stated that the cheque had been given by him to the plaintiff personally. The controversy, therefore, was whether the cheque was fradulenly deposited by the defendant in the bank account of the plaintiff without his knowledge or that it was given to the plaintiff, was deposited the same and encashed it.
6. The Judge, Small Causes Court dismissed the suit by giving a finding of waiver of notice in favour of the defendant. He held:
“On all the above grounds I hold that the amount of Rs. 3,850 was tendered by the defendant to the plaintiff within him knowledge and the same was credited to his bank account.”
7. Challenging the aforesaid finding, the learned Counsel for the applicant alledged that there being no evidence, the Judge, Small Causes could not have held that the cheque was tendered by the defendant to the plaintiff and it was credited to the plaintiff's bank account with his knowledge. It is not correct that the finding aforesaid, was without any evidence. The defendant stated that the eheque had been given by him to the plaintiff. His statement has been believed by the learned Judge.
8. Suggestion of the learned Counsel for the plaintiff that the money was got deposited by the defendant in collusion with the bank employee and that the deposit could not bind the plaintiff is not acceptable one. The plaintiff led no evidence to prove that the cheque was got deposited by the defendant in the plaintiff's account. The cheque was admittedly deposited in November, 1983, and the plaintiff also came to learn about the same practically at the same time, but he did not protest against the fraudulent deposit by the defendant as is being alleged now. The plaintiff should have protected to the defendant by pointing it out to him about the surreptitious deposit. What be did was that he kept quite for some time and when the suit was filed on 3-5-1984 then he mentioned in the plaint that a part of the amount of the cheque had been adjusted towards rent; whereas the remaining part of it as damages, mesne profit and electricity dues. The defendant denied his liability of paying dues. There is a finding also to that effect given by the Judge, Small Causes in the suit. How was that money adjusted by the plaintiff in the account remain unresolved. The plea taken in the point that a part of it was deposited towards the rent for the months of February and March, 1983, and the remaining part for damages was rightly not accepted by the Court below. As found earlier, the cheque was given by the defendant to the plaintiff and at that time it can be presumed that he must have told the plaintiff that the same was by way of rent. It was not open to the plaintiff to deposit a part of it towards the past rent and the remaining towards mesne profit and damage as well as the electricity charges. Had the defendant not given the cheque to the plaintiff, it could be held that the plaintiff, as a creditor, had the right to adjust a part of the amount towards the part arrears and to deposit the remaining towards the damages.
9. Under Section 113 of the Transfer of Property Act there can be a waiver of a notice to quit with an express or implied consent of the tenant by any set on the part of the landlord showing an intention to treat the lease as subsisting. In the instant case, the notice terminating the tenancy was given on 1-3-1983, demanding the rent for the period of March. After March, 1983, the defendant would have been a trespasser or a person in unauthorised occupation. But, by accepting the cheque in the month of November, 1983, covering the rent of the month of February, 1983 and of the period after termination of tenancy, it was clear that the plaintiff treated the lease as subsisting. It is undenyable that acceptances of rent for the period after the expiry of notice does not operate as waiver. But in the instant case, the rent was for a subsequently period and, as such, the Judge, Small Causes rightly held that the notice under Section 106 of the Transfer of Property Act had been served on the defendant. For the reasons given in the above, the revision has no merits and is dismissed.
10. Petition dismissed.