Judgment.- This Second Appeal by the defendant which is against a concurring judgment, has to be allowed on a short point. The suit instituted by the respondent was in ejectment. His claim was that the appellant was a tenant of the suit premises including the building and, if the Court believed the defendant had put up the building, the plaintiff prayed for possession of the vacant site after removing the superstructure. By the findings of both the Courts below it is now settled that the superstructure was put up by the defendant. It is also common ground that notice under section 11 of the City Tenants Protection Act, 1921, as amended, was never given by the respondent. The trial Court decreed the suit for recovery of possession subject to the plaintiff depositing a sum of Rs. 270. With this decree the lower appellate Court substantially agreed. On the question of jurisdiction based on section 11, the lower appellate Court was of the view that the defendant had waived his rights thereunder. The only point argued before this Court is the one based on section 11. It is contended that the Courts below were wrong in spelling out waiver from circumstances which did not justify the inference. It seems to me the contention is well founded. The reasoning of the lower appellate Court is as follows: “In the instant case there is ample evidence to show that the defendant waived the notice. In the written statement he did not claim the benefit of this notice and contend that the suit was not maintainable because the notice was not issued. At the time of framing of issues, he did not point out to the Court that the notice under section 11 had not been issued & that therefore the suit was bad and asked the Court to raise any issue on that point. Even at the commencemnt of the trial he did not realise the mistake committed by him in not pleading the want of notice, if his contention that he did not raise this plea in the written statement either by mistake or oversight is true, and apply for permissions to file additional written statement or request the Court to quo motu frame an additional issue covering this point. Only after the entire evidence was over, his counsel appears to have woken up and put forward a plea in this behalf. Only after the entire evidence was over, his counsel appears to have woken up and put forward a plea in this behalf. Therefore the lower Court was right in holding that defendant has waived the notice.” In my opinion, these observations of the lower appellate Court disclose a complete misdirection on its part. If it is a matter of pleading, it is obvious it is for the plaintiff to plead in the plaint that the defendant had waived the benefit of notice under section 11. That section says that no suit shall be instituted or presented against a tenant until the expiration of three months next after notice in writing has been given to him requiring him to surrender possession of the land and building and also offering to pay compensation for the building and trees, if any, and stating the amount thereof. This section is mandatory and non-compliance with it will entail a rejection of the plaint. It is therefore for the plaintiff to plead and satisfy the Court that in view of a waiver on the part of the defendant, the suit would lie without compliance with the requirements of section 11. There was no plea at all taken by the plaintiff in the plaint alleging waiver. Waiver is a question of fact and ought in every case to be pleaded. It is not for the defendant to take the plea for, obviously notice is conceived to his benefit and hardly could he be expected to plead that he had waived the notice and therefore the plaintiff need not have complied with section 11. The lower appellate Court was in error when it observed that at least the defendant could have filed an additional written statement or asked the Court to frame an issue regarding the waiver. I also think that the circumstances which the lower appellate Court relied on for spelling out waiver do not justify the finding. Vedachala Naicker v. Duraiswami Mudaliar1, no doubt held that notwithstanding the mandatory character of section 11, it is open to a defendant to waive his right under the section. On the facts in that case waiver was inferred from the fact of the defendant having in the suit taken out an application under section 9 of the Act. There is no such circumstance present in this case. On the facts in that case waiver was inferred from the fact of the defendant having in the suit taken out an application under section 9 of the Act. There is no such circumstance present in this case. I am of opinion therefore that the suit instituted by the respondent should have been dismissed for non-compliance with the mandatory provisions of section 11. The Second Appeal should therefore be allowed and the judgments and decrees of both the Courts set aside. But Mr. Narayanaswami for the respondent, on instruction from his client, urges that in E.P. No. 728 of 1959, the respondent had deposited on 22nd September, 1959, a sum of Rs. 270 and that on 14th October, 1959, the appellant bad surrendered possession of the site and superstructure and the respondent has taken possession thereof. If these facts are true, it of course follows that the decrees of both the Courts below for possession should stand and the Second Appeal should stand dismissed. But Counsel for the appellant is not in a position to accept the subsequent facts as stated by Counsel for the respondent. This is a Second Appeal of 1959 and I am not inclined to delay its disposal any longer. In the circumstances I think it proper to direct the trial Court to find out after notice to both parties as to whether the facts represented as to the deposit of money, its withdrawal and surrender of possession by the appellant and taking possession by the respondent are true. If they are true, the Second Appeal will stand dismissed; if they are not true, the Second Appeal will stand allowed as stated above with costs, and in that event, it would be open to the plaintiff to institute a fresh suit after complying with the requirements of law. No leave. R.M. ----- Ordered accordingly; Decree to depend on the finding of the point remitted.