Judgement ASTHANA, J. : This is a defendant's appeal. The defendant is a tenant of the plaintiff respondent in the promises in dispute The plaintiff alleged that Ihe defendant has wilfully defaulted in the payment of rent and fell in arrears and that he did not pay the same despite a notice of demand served upon him, that his tenancy was terminated by notice and further that since the defendant neither complied with the notice of demand nor vacated the premises, hence the suit for his ejectment recovery of arrears of rent and mesne profits. The defence was that the defendant had not committed any wilful default in the payment of rent and Ihe notice of demand and to quit, was invalid. It appears that during the pendency of the suit the plaintiff accepted the rent sent by the defendant by money-order for a period subsequent to the notice to quit. A plea was then raised in defence that the notice to quit stood waived and the plaintiff was not entitled to a decree for ejectment of the defendant from the premises let out. 2. The trial Court found in favour of the defendant on all the issues. It held that the defendant had not committed any wilful default in the payment of rent; that the notice to quit stood waived as the rent for a subsequent period was accepted by the plaintiff and the lease was treated to be subsisting and that the notice demanding the arrears and terminating the tenancy was invalid inasmuch as the lawyer who sent the notice was not authorised by the plaintiff to do so. The plaintiff's suit in respect of the relief for possession by ejectment of the defendant was dismissed Being aggrieved against the decree of the trial Court the plaintiff went up in appeal. The learned Judge of the lower appellate Court reversed the findings of the trial Court on all the issues. It held that the defendant had wilfully defaulted in the payment of rent; that the notice to quit did not stand waived and that the notice was a valid notice. Accordingly the suit of the plaintiff for ejectment of the defendant was decreed. The defendant has now come up in second appeal from the decree of the lower appellate Court. 3. I have heard Miss Rehman holding the brief of Sri Brijlal Gupta in support of the appeal. Accordingly the suit of the plaintiff for ejectment of the defendant was decreed. The defendant has now come up in second appeal from the decree of the lower appellate Court. 3. I have heard Miss Rehman holding the brief of Sri Brijlal Gupta in support of the appeal. Despite notice of the appeal having been served on the plaintiff-respondent no appearance has been put on his behalf and I have been deprived of an opportunity of hearing the plaintiff-respondent in reply. Having given my due consideration to the arguments advanced for the defendant-appellant and having perused the record. I think that this appeal must succeed. I am not at all impressed with the submissions made by the learned counsel for the appellant in regard to the findings of the lower appellate Court on the question of wilful default and the validity of the notice. I think the findings of the lower appellate Court on these points cannot be assailed. 4. But on the question whether the notice to quit stood waived, I am of the opinion that the lower appellate Court fell into an obvious error it is not disputed that in the year 1952 during the pendency of the suit the plaintiff received rent regularly from the defendant for periods subsequent to the notice to quit. The defendant set up a case that in 1952 there was an agreement between him and the plaintiff to continue the tenancy and he remitted the rent regularly by money-order on the asking of the plaintiff that the mode of payment of rent should be by money-orders. The defendant examined certain witnesses in support of his case The learned Judge of Ihe lower appellate Court did not think it fit to rely on the evidence of the witnesses for the defendant adduced to support the fact that there was an agreement as set up by the defendant. But the learned judge at the same time has not found that the rent for a period subsequent to the notice to quit was not sent by the defendant and was not receiver and accepted by the plaintiff. The reasoning of the learned judge for rejecting the case of the defendant is not easily understandable. I think the learned Judge of the Court below has missed the whole point. The reasoning of the learned judge for rejecting the case of the defendant is not easily understandable. I think the learned Judge of the Court below has missed the whole point. Once it is found that the rent for a period subsequent to the notice to quit was accepted by the plaintiff it is that circumstance alone which has to be taken into consideration for finding out whether in so accepting the rent the plaintiff intended that the relationship of landlord and tenant subsisted between the parties. It was immaterial that the defendant was unable to satisfy the Court by his evidence affirmatively that there was an agreement arrived at for continuing the tenancy. The learned Judge of the lower appellate Court seemed to think that the defendant was setting up a case of a fresh contract of tenancy. What the defendant set up was a case that by his own conduct the plaintiff had waited the notice to quit. 5. The question then arises whether the acceptance of rent for a period subsequent to the notice to quit during the pendency of the suit would not amount to such a conduct on the part of the plaintiff so as to result in Ihe waiver of the notice to quit. The learned Judge of the Court below was of Ihe view that the diligent prosecution of the suit by the plaintiff based on the notice to quit would be a conduct on his part quite inconsistent with an intention on his part to treat the defendant as his tenant and continue the relationship of landlord and think there is no warrant for such a conclusion. It is not the diligent prosecution of the suit which is material in judging whether the plaintiff as landlord intended to continue the tenancy of the defendant, but it is the acceptance of rent by him for a period subsequent to the notice to quit which is material. The learned Judge of the Court below put to him a question, as his judgment shows, in the following manner. The learned Judge of the Court below put to him a question, as his judgment shows, in the following manner. "When a suit has been instituted on the basis of the notice, how can it be said that the notice had been waived when there was no payment and acceptance of rent before the institution of the suit ?" The above question which the learned Judge posed for himself shows that he was of the view that had the rent for a subsequent period to the notice to quit been accepted by the plaintiff before the institution of the suit, it would have amounted to a waiver of the notice to quit. I do not think that the acceptance of the rent for the period subsequent to notice to quit during the pendency of the suit, that is after the institution of the suit, can be treated on a different fooling than the acceptance of such rent prior to the institution of the suit. I am in agreement with the decision of Buckland, J. in the case of Maniklal Dev Chaudhurv v. Kadambini Dassi, AIR 1926 Cal 763 in which a similar question arose and with respect to the learned Judge I endorse all the reasoning which was the basis of that decision and adopt the same for the purpose of the instance case. Buekland, J. observed as follows :- "One cannot logically say that the fact of accepting rent by itself shows an intention to treat the case as subsisting if no suit has been filed and a different intention if a suit has been filed." 6. I am, therefore, of the opinion that the finding of the learned Judge of the lower appellate Court that the notice to quit did not stand waived is not correct. The plaintiff was not entitled, therefore to a decree for possession of the premises in suit by ejectment of the defendant. 7. For the reasons given above, I allow this appeal, act aside the decree of the lower appellate Court and restore that of the Court of first instance with costs. Appeal allowed.