JUDGMENT - Ginwala A.A. J.- This second appeal has been filed against the appellate decree confirming the decree of the trial Court directing the appellant-defendant to deliver possession of the suit premises to the respondent-plaintiffs. 2. A few facts about which there is no dispute may be stated in order to appreciate the rival contentions of the parties to this appeal. The respondents had let but the suit premises consisting of five rooms in a two storeyed building situated in the City of, Akola at a monthly rent of Rs.30/-. In or about the year 1951-52, the Rent Controller fixed the fair rent of the suit premises at Rs. 30/-per month under the provisions of the Central Provinces and Berar Letting of Houses and Rent Control Order, 1949 (hereinafter referred to as the 'Rent Control Order'). The respondents moved the Rent Controller under clause 13 of the Order for grant of permission to give notice to the appellant to determine his lease. The Rent Controller, by his order made on 25-9-1962, granted the permission sought for. Pursuant to this permission, the respondents, on 9-4-1963, seat a notice to the appellant-defendant determining his lease at the expiry of 30th April, 1963. By his reply dated 13-5-1963, the appellant questioned the validity of. the notice asserting that in view of an appeal preferred by him against the order of the Rent Controller, the permission granted by the latter was not final. The appeal filed by the appellant against the order of the Rent Controller came to be dismissed on 1-6-1965. Thereafter, on 22-11-1966, the respondents moved the Rent Controller for enhancing the fair rent which had been fixed earlier. On 9.5.1967, this appllication came to be dismissed as not pressed. Prior to that on 7-4-1967, the respondents sent a notice to the appellant again terminating his tenancy with effect from the end of 30th April, 1967. Since the appellant did not abide by this request calling upon him to vacate possession of the suit premises, the respondents filed a suit for eviction and damages. 3. Prior to that on 7-4-1967, the respondents sent a notice to the appellant again terminating his tenancy with effect from the end of 30th April, 1967. Since the appellant did not abide by this request calling upon him to vacate possession of the suit premises, the respondents filed a suit for eviction and damages. 3. The appellant contested the suit and contended that after his appeal against the order of the Rent Controller was dismissed, he intended to challenge the same by filing writ petition in the High Court but some common friends intervened and brought about a settlement between him and the respondents, the terms of which were that the respondents would not enforce the permission secured by him from the Rent Controller and that the app'ellant would not move the High Court. According to him, it was also agreed that he would continue to occupy the premises as a tenant at a ninthly rent of Rs. 45/-and that the arrears of rent outstanding from him as from 1-4-1063 would be paid at that rate. He contended that it was also agreed that if the arrears were not paid as stated, the respondents would be free to seek permission from the Rent Controller. According to him, the application made by the respondents for fixing the fair rent was in pursuance of this agreement to enable them to recover the enhanced rent of Rs. 45/-per month. According to the appellant, though he had abided by the cenditions of the agreement, the respondents had turned down it and had filed the suit. -He, therefore, claimed an amount of Rs. 525/-from the respondents for the rent which he had paid in excess of Rs. 30/-per month as fixed by the Rent Controller. The appellant further contended that since the first notice which was given by the respbndents in pursuance of the permission obtained from the Rent Controller was waived by them, a second quit notice could not have been issued by them without obtaining a fresh permission and hence the second quit notice, on which the suit was founded, was not legal and valid. 4 Both the Courts below rejected the contention of the appellant that there was a settlement between him and the respondents and a fresh tenancy was created between them, Mr, Mehadia, the learned counsel for the appellant, urged that the findings of the courts below on this aspect are not legal and valid as the evidence in this respect had not been properly appreciated and the circumstances going in favour of the appellant had not been properly weighed. The question whether or not there was an agreement as contended by the appellant would be purely a question of fact, Both the courts below have recerded a concurrent finding on this question of fact. It cannot be said that the finding.is perverse so as to, merit interference at the hands of the second appellate Court. I, therefore, desist from going into the correctness of this finding. 5. This takes me to the question of the validity of a quit notice dated 7-4-1967. Both the Courts below have held that the earlier notice dated 9-4-1963 itself was not valid, inasmuch as it was given during the time when the appeal filed by the appellant against the order of the Rent Controller was pending. Mr. Mehadia for the appellant submits that view is entirely erroneous and is not founded on any provision of law. He submitted Chat simply because the tenant files an appeal against the order of the Rent Controller granting permission to give notice to determine the tenancy, the aid order does not become ineffective and it continues to be valid until it is set aside by the appellate authority. For this proposition, Mr. Mehadia relies on the decision of a Division Bench of this Court in (Prabhakar Atmaram Kale v. Bharat Santaji More and another)1 6. In (Mathew Charian Christian v. Rajkumar Ramavatar Chourasia)1 a Single Judge of this Court took the view that filing of an appeal against an order of the Rent Controller has got the effect of putting that order in jeopardy and the result is that the very basis of the quit notice i.e. the order of the Rent Controller becomes ineffective being sub judice. This finding was given by the learned Single Judge in the context of the maintainability of a suit filed by landlord against the tenant on the basis of a quit notice which he gave after obtaining permission from the Rent Controller during the time the tenant had filed appeal against that order. The learned Single Judge went on to say that in such a contingency the quit notice would be invalid and the suit would not be tenable. On a reference being made to a larger Bench, a Division Bench of this Court in Prpbhakar v. Bharat (cited supra) has reversed the decision of the learned Single Judge in Mathew Charian's case. The Division Bench held that the notice determining the tease after obtaining permission of the Rent Controller does not automatically stand invalidated as soon as the appeal is filed by the tenant. It is, therefore, now well settled thai an appeal filed by the tenant against the order of the Rent Controller granting permission to the landlord to give notice to the tenant to terminate the lease does not, by itself, invalidate such notice unless the appellate authority stays the order of the Rent Controller prior to the service of such notice. Hence the view taken in the present case by both the courts below to the effect that a quit notice given prior to or during the pendency of such an appeal is ineffective and hence invalid is not correct. Obviously, such a notice would be valid and effective. 7. The question then which falls for consideration is what is the effect, of the first quite notice on the second. Mr. Mehadia, the learned counsel for the appellant submitted that the respondents, after the service of the first notice, had not only accepted rent from the appellant, but had also moved the Rent Controller for fixing an enhanced fair rent. This, according to Mr. Mehadia, not only amounts to waiver of the first notice but created a fesh tenancy and hence the respondents could not have terminated the lease of the appellant by the second notice without obtaining permission of the Rent Controller again. Mr. This, according to Mr. Mehadia, not only amounts to waiver of the first notice but created a fesh tenancy and hence the respondents could not have terminated the lease of the appellant by the second notice without obtaining permission of the Rent Controller again. Mr. Mehadia submitted that the, permission which the respondents had obtained earlier on the basis of which he had given the first notice was exhausted at the moment the first notice which was held to be valid was given, In support of this proposition, Mr. Mehadia seeks to rely on the decision of the Division Bench of this Court in (Chaturbhuj Sitaram v. Manjibai Hirachand and another)3. In that case, the landlord applied for and obtained permission from the Rent Controller to serve a notice to determine the lease under clause 13 of the Rent Control Order and served a notice on the tenant on 21-7-1950 calling upon him to vacate the premises by 22-8-1950. After the service of the notice on the tenant, the landlord, accepted by postal money order the amount of rent for the period upto 22-10-1950 and subsequently served upon him the second notice calling upon him to vacate the premises by 22-3-1951 without obtaining permission from the Rent Controller. On this set of facts, the Division Bench held that the first permission was exhausted when notice was served on the tenant on 21-7-1950 and that by the conduct on the part of the landlord in accepting rent from the tenant for the period subsequent to the determination of tenancy by the first notice that notice was waived and that if the landlord desired again to terminate the tenancy a second permission of the Rent Controller was required and in the absence of such permission, the landlord's suit, relying upon the later notice determining the tenancy was not maintainable. The Division Bench observed that it is to the service of notice to a tenant determjning a lease the obtaining of permission of the Rent Controller is made a condition precedent and once lease is determined the subsequent waiver of determination of the lease has not the effect of absolving the landlord from the necessity of obtaining a fresh permission for a fesh determination of the lease. With respect, I am bound by this decision of the Division Bench. With respect, I am bound by this decision of the Division Bench. The facts of the case on hand are practically identical to the facts obtaining in Chaturbhuj's case. Over and above the facts of that case, there is one more feature in this case which goes in favour of the appellant and it is that the respondents not only accepted rent for the period subsequent to the determination of the lease by the first notice but also moved the Rent Controller long thereafter for enhancement of the fair rent already fixed. It is to be noted that this has been done more than three years after the first notice and admittedly the respondents had accepted rent during all this period from the appellant. These facts, therefore, early go to show that the respondents had waived their first notice by the conduct and in view of the ruling of this Court in Chaturbhuj's case, they clould not have determined the lease of the appellant for the second time without obtaining fresh permission from the Rent Controller. In that view of the matter, the quit notice on which the suit is based would be invalid and illegal. 8. Mr. Munshi, the learned counsel for the respondents, however, relying on the decision of a learned Single Judge of this Court in (Hari Prasad and another v. Nathmal Chunilal)4, submitted that if the landlord, after obtaining permission from the Rent Controller, determines the lease by notice and in reply the tenant intimates him of filing an appeal against the order of the Rent Controller, the notice is not waived if in -such circumstances the landlord accepts rent after such intimation and gives another notice subsequent to the decision of the appeal and that fresh permission of the Rent Controller would not be necessary. It is pertinent to note that the decision in Chaturbhuj's case was cited before the learned Single Judge on behalf of the defendant opponent. A plea was made by the learned counsel of the plaintiff-applicant in that cage that the decision in Chaturbhuj's case required reconsideration. The learned Single Judge, however, did not think it necessary to go into that question in that case and proceeded to decide on the facts of that case if there was waiver of the first notice. A plea was made by the learned counsel of the plaintiff-applicant in that cage that the decision in Chaturbhuj's case required reconsideration. The learned Single Judge, however, did not think it necessary to go into that question in that case and proceeded to decide on the facts of that case if there was waiver of the first notice. Hence whatever has been observed by the learned Single Judge in HariPrasad's case has to be confined to the facts and circumstances of that case and that case cannot be taken to lay down a law in this behalf. Indeed the law has been laid down by larger • Bench in Chaturbhuj's case and it is binding on a Single Judge. I, therefore, do not find that Hariprasad's case can come to the rescue of the the respondents. As I have said above, there is additional feature in the present case and it is that at the respondent on “his own had moved the Rent Controller for enhancing the fair rent fixed earlier. This is a clear indication of the fact that he did not want to abide by determination of the lease by the first notice and treated the appellant as his tenant even thereafter. It is this additional feature which distinguishes the present case from that of Hart Prasad. 9. Mr. Munshi has drawn my attention to a decision of the same learned Single Judge of this Court in (Ramkrishna v. Ramchandra)5. This case also proceeds on its own facts and it is not possible to prefer this decision to the one recorded in Chaturbhuj's case. 10. Admittedly before giving the quit notice dated 7-4-1967, the respondent did not obtain permission from the Rent Controller under clause 13 of the Rent Control Order I hold that the first notice was waived by respondent in accepting the rent subsequent thereto and moving the Rent Controller for enhancing the fair rent. In these circumstances, it was incumbent upon him to obtain fresh permission from the Rent Controller before serving the second quit notice. Hence, in my view, the notice on which the suit is based being invalid, no decree for ejectment could be passed against the appellant. Consequently the appeal has to be allowed. 11. In these circumstances, it was incumbent upon him to obtain fresh permission from the Rent Controller before serving the second quit notice. Hence, in my view, the notice on which the suit is based being invalid, no decree for ejectment could be passed against the appellant. Consequently the appeal has to be allowed. 11. In the result, the appeal is allowed and the decrees of the Courts below in so far as they relate to delivery of possession of the suit premises by the appellant to the respondent are set aside and the respondent's suit to that extent is dismissed with proportionate costs throughout. Appeal Allowed ----