JUDGMENT 1. This is an appeal from an appellate decree. The appeal arises out of Title Suit No. 106 of 1975 of the 3rd Court of the learned Munsif at Howrah, which having been dismissed by the learned trial court, the plaintiff moved up in appeal and the learned lower appellate court being the 2nd Court of the learned Additional District Judge allowed the appeal, being Title Appeal No. 183 of 1978 and decreed the suit in the plaintiff’s favour. 2. The plaintiff brought the suit for ejectment of the defendant from the suit premises, as described in the schedule to the plaint on the ground of default in payment of rent since July, 1974 t the rate of Rs. 120/- per month according to the English calendar. 3. The tenancy of the defendant having been duly terminated by a notice to quit dated March 6, 1975, the plaintiff filed the instant suit for recovery of khas possession in respect of the premises in suit and for damages, since the defendant in spite of the notice refused to quit and vacate the suit premises. 4. The defendant contested the suit by filing a written statement alleging inter alia, that he was not a defaulter as alleged. It was further contended that the notice to quit besides bad in law was also not served upon the defendant. 5. The suit having been decreed initially by the learned trial court, the defendant moved up in an appeal and the learned lower appellate court sent the case back for retrial only on the notice point. 6. Thereafter, the learned trial Court dismissed the suit on the finding that the suit instituted on the second notice to quit bad in law as soon as prior notice to quit issued upon the defendant was not waived. 7. On appeal by the plaintiff, the learned lower appellate court took a different view of the matter and the learned judge in the learned lower appellate court the first notice was waived by subsequent payment and acceptance of rent and the instant suit on the second notice to quit was not accordingly bad in law. The learned Judge, accordingly, allowed the appeal and decreed the suit in plaintiff's favour. 8. Being aggrieved, the defendant has now come up in appeal before this Court. 9. Appearing on behalf of the appellant, the only point that was urged by Mr. The learned Judge, accordingly, allowed the appeal and decreed the suit in plaintiff's favour. 8. Being aggrieved, the defendant has now come up in appeal before this Court. 9. Appearing on behalf of the appellant, the only point that was urged by Mr. Roy Chowdhury, the learned Advocate, was that the notice to quit was bad in law and the suit filed was not maintainable since the former notice to quit served by the plaintiff upon the defendant had not been waived. 10. This contention of Mr. Roy Chowdhury was strongly assailed by Mr. Roy, the learned Advocate, appearing on behalf of the respondent. According to Mr. Roy the instant suit on the second notice is quite maintainable since the first notice was waived with the implied consent of the defendant. 11. Now, as it appears, that prior to the institution of the instant suit, the plaintiff served a notice to quit upon the defendant dated March 6, 1975 calling upon him to quit and vacate the suit premises on the expiry of the month of April, 1975 (Ext.1). But before this, another notice to quit dated June 12, 1974 was served upon the defendant by which he was directed to quit and vacate the suit premises on the expiry of the month of July, 1974 (Ext. B). 12. In paragraph 2 of the said notice it was alleged 1hat the defendant was a defaulter to payment of rents since November, 1973. But not only that this notice was not followed by a suit, the plaintiff after the expiry of the period of the said notice accepted the arrears of rents from the defendant upto the month of June, 1974 (vide rent receipts, Ext A. series). 13. The learned lower appellate court on the basis of the continuance of possession of the suit premises by the defendant after the expiry of the notice period as well as in view of subsequent payment and acceptance of rents concluded that there was waiver of the first notice to quit. 14. It was however, contended by Mr. Roy Chowdhury, the learned Advocate, appearing on behalf of the appellant, that since no rent was paid by the defendant for any period after the expiration of the notice, it could not be said that the notice had been waived. 14. It was however, contended by Mr. Roy Chowdhury, the learned Advocate, appearing on behalf of the appellant, that since no rent was paid by the defendant for any period after the expiration of the notice, it could not be said that the notice had been waived. In this connection he relied upon illustration (a) to S. 113 of the Transfer of Property Act, which is as follows: "(a) A, the lessor gives B, the lessee, notice to the property leased. The notice expires, B tenders, and A accepts, rent which has become due in respect of the property since the expiration of the notice. The notice is waived" 15. This illustration undoubtedly shows that the rent accepted must be for a period after the notice, which is not the case here. Because, in the instant case no rent was admittedly paid for any period after the notice, i.e. after the month of June, 1974. 16. The fact, however, remains that on the expiry of the period of the first notice, the defendant continued to be in possession of the suit premises and paid the arrears of rents as mentioned in the notice, removing thereby the only ground for ejectment as mentioned in the notice. It is true that no ground for ejectment need be mentioned in the quit notice, but having been so done in the present case, the defendant obviously in his bid to save himself from eviction, cleared of the arrears, which the plaintiff accepted and allowed the defendant to continue as before. 17. Significantly, also, after the instant suit was filed on the basis of the second notice dated March 6, 1975, the defendant in his written statement did not even raise a whisper that since the tenancy already stood terminated by the former notice to quit, the suit instituted on the second notice was bad in law and not maintainable. His objection to the second notice is more than stereotyped, namely, "that your defendant denies service, legality, sufficiency of the alleged notice" (vide paragraph 6 of the written statement) and no mention has even been made of the former notice. 18. These, according to Mr. Roy, the learned Advocate appearing on behalf of the respondent, are circumstances to show implied consent of the defendant to the waiver of the first notice. 19. In this connection, Mr. 18. These, according to Mr. Roy, the learned Advocate appearing on behalf of the respondent, are circumstances to show implied consent of the defendant to the waiver of the first notice. 19. In this connection, Mr. Roy referred me to illustration (b) to S. 113 of the Transfer of Property Act, which is as to the following effect : "(b) A, the lessor, gives B, the lessee notice to quit the property leased. The notice expires, and B remains in possession. A gives to B a lessee a second notice to quit. The first notice is waived." 20. According to this illustration, the continuance of possession of the lessee after the expiry of the first notice and giving of a second notice thereafter by the lessor are by themselves sufficient to prove waiver of the first notice. 21. The scope of this illustration came up for consideration before the Supreme Court in Taiyabali v. Ahsan & Co., AIR 1971 SC 102 . According to the Supreme Court : "If only the language of the illustration were to be considered, as soon as the second notice was given the first notice would stand waived". But the trend of the decision indicates that something more is necessary for waiver of the first notice. 22. In the instant case there is no doubt so far the plaintiff is concerned, the first notice was not acted upon and s regards the defendant, he not only refused to comply with the notice, he paid the arrears of rents as mentioned in the notice, thereby expressing his desire to continue to remain in possession of the premises as before. This is not all, when the plaintiff served the second notice upon him, he remained absolutely quiet about the first notice and did not even raise a whisper in his written statement to the effect that his tenancy having already been terminated and there being no waiver of the first notice, the suit on the second notice was bad in law. 23. Thus, in this case, materials are more than enough to indicate that the first notice to quit has been waived with the implied consent of the defendant and the suit on the second notice, as such, is not bad in law as rightly hold by the learned lower appellate Court. 24. 23. Thus, in this case, materials are more than enough to indicate that the first notice to quit has been waived with the implied consent of the defendant and the suit on the second notice, as such, is not bad in law as rightly hold by the learned lower appellate Court. 24. Thus the only contention raised on behalf of the appellant failing, the appeal fails too and is dismissed on contest. 25. The impugned judgment and decree of the learned tower appellate court are hereby affirmed though for different reasons. However, in modification thereof the defendant is allowed time till the end of March, 1986 to quit and vacate the suit premises provided he goes on depositing amounts equivalent to arrears of rents in the learned trial court. In default of payment of any one of the instalments, the decree shall be executable at once. The parties are directed in bear their own costs of this appeal. No formal decree need also be drawn. Let the records be sent down with a copy of this judgment as expeditiously as expeditiously as possible. Appeal dismissed.