S. K. Agarwal, J. ( 1 ) THIS appeal is directed against the judgment and decree passed on 3rd April, 1999 by Ms. Manju Goel, Additional District Judge, Delhi granting a decree for possession, in favour of the plaintiff-respondent against the defendant-appellant in respect of the property bearing Plot No. B-2, Community Center, Janakpuri, New Delhi (for short the suit premises) and a decree of mense profits amounting to Rs. 30,000. 00 @ Rs. 15,000. 00 p. m. for months of March and April, 1997. Arguments were heard in the appeal and judgment was reserved. There is no formal order for admission. ( 2 ) ( 3 ) BRIEF facts giving rise to this appeal are that on 5th May, 1997 the respondent-landlord filed a suit for possession and recovery of damages against the appellant-tenant alleging therein that it was a registered partnership firm and owner/landlord of the suit premises, which were let out to the appellant-tenant bank vide registered lease deed dated 4th June, 1979 at a monthly rent of Rs. 4,840. 20 for a period 11 months. Thereafter, as per the terms contained in another unregistered lease agreement dated 26th June, 1979, the respondent permitted the appellant-tenant to retain the suit premises, after the initial period of 11 months. Since the second unregistered lease agreement was for a period of more than one year, as per law, the tenancy has to be construed on month to month basis. The rent of the premises was increased to Rs. 5,330. 00 per month with effect from June 1989 and the appellant was in arrears of rent amounting to Rs. 95,954. 76 w. e. f. 1st August, 1995 to 31. 1. 1997. The respondent-landlord through registered A. D. notice dated 31. 1. 1997 terminated the tenancy of the appellant w. e. f. 28th February, 1997, (or on the midnight of 3rd March, 1997 in the event of appellant considering that its tenancy commences from 4th day of each English Calender month ). As the tenant failed to deliver physical vacant possession of the suit premises despite expiry of the period of notice to quit, the suit was filed for possession and for recovery of damages @ Rs. 1,25,000. 00 per month for its unauthorised use and occupation w. e. f. 1st March, 1997/4th March, 1997, till the date of actual delivery of possession. 1,25,000. 00 per month for its unauthorised use and occupation w. e. f. 1st March, 1997/4th March, 1997, till the date of actual delivery of possession. ( 4 ) APPELLANT-TENANT bank filed a written statement, contesting the said suit inter-alia pleading therein, that the respondent had been regularly accepting rent even after serving the alleged notice to quit; that the notice was defective and illegal and that the suit was premature and lease was subsisting. It was further pleaded that rent was paid to the respondent in the sum of Rs. 1,49,262. 96 and Rs. 5,303. 82 (vide pay orders dated 13. 12. 97 and dated 1. 1. 98 respectively) which were duly acknowledged, for the period from September, 1995 to January, 1998. ( 5 ) AFTER the pleadings were completed, respondent/landlord filed an application under Order 12 Rule 6 of the Code of Civil Procedure, 1908 (for short the Code) praying for a decree of possession of the suit premises, on the basis of the admissions in the written statement of the appellant-tenant. In reply the appellant/tenant reiterated that its tenancy was continuing, as the respondent-landlord had accepted the rent even after sending the alleged notice to quit dated 31st January, 1997 and filing of the suit. It was also pleaded that rent of the suit premises was attached under Section 112 of the Delhi Municipal Corporation Act, 1957, (for short MCD) and therefore, the rent could not be paid earlier to the respondent/landlord earlier. ( 6 ) LEARNED trial court after hearing the arguments passed impugned judgment and decree. We have heard learned counsel for the parties and have been taken through the record. ( 7 ) SHRI Rajiv Nayar, learned senior counsel for the appellant/tenant firstly argued an application (CM No. 1342/99), moved in the appeal, purportedly under Order 41 Rule 27 read with Section 151 of the Code seeking to place on record (a) communication dated 8th January, 1993 of Warrant Officer, Special Recovery Cell, MCD informing the appellant/tenant about the order of attachment of rent order on account of owner s failure to pay property taxes amounting to Rs. 9,05,431. 00 for the period ending 31. 3. 92; (b) letter dated 8th October, 1997, written by the Tenant Bank to the Warrant Officer, MCD informing that payment towards house tax dues was made vide receipts dated 13. 10. 93 and dated 2. 3. 9,05,431. 00 for the period ending 31. 3. 92; (b) letter dated 8th October, 1997, written by the Tenant Bank to the Warrant Officer, MCD informing that payment towards house tax dues was made vide receipts dated 13. 10. 93 and dated 2. 3. 93 and that no demand in this regard was received by them thereafter, therefore, they were releasing the rent to the land lords and (c) letter 12th January, 1998 signed by some person on behalf of the respondent/landlord to the appellant/tenant acknowledging the receipt of the rent for the suit premises for the period from 1. 8. 95 to 31. 12. 97. ( 8 ) RESPONDENT/landlord opposed the said application stating that the same was not maintainable in law. The correspondence between the tenant and the MCD was totally irrelevant and the letter dated 12th January, 1998 writen by an employee of the respondent/landlord was again not relevant for the purposes of deciding the issue of waiver under Section 113 of the Transfer of Property Act, 1882 (for short as Act) and also for the purpose of disposal of the appeal. ( 9 ) WHILE arguing the said application learned counsel for appellant placed reliance on the observations made by a Division Bench of this Court in Akash Ganga Builders and Engineers (P) Ltd. vs. G. P. Seth HUF and Anr 1999 (50) DRJ 589 holding "that the appellate Court could call for additional documents while hearing and deciding the main appear. Appellate Court should not reject receipt of a document on the ground that it had not been produced earlier when it was possible to do so as the same would aid in pronouncing the judgment and just disposal of the case. Moreover, to remove the cloud of doubt over the case particularly where the evidence has a direct and important bearing on the main issue and the interests of justice clearly renders it imperative that it be allowed to be brought on record then such document can be brought on record. " ( 10 ) IT was argued that the appellant-tenant in its written statement, had specifically raised plea of waiver of notice stating that the respondent/landlord had accepted rent after service of notice and filing of the suit for eviction, and that these documents are necessary for proper adjudication of issues raised in the appeal as authenticity of these documents cannot be disputed. ( 11 ) AS a general Rule the appellate Court can not go outside the record of the lower Court, and should not take any evidence in appeal. The test is whether the appellate court is able to pronounce the judgment, on the basis of the material already on record, without taking into consideration the additional evidence sought to be adduced. However, additional evidence can be allowed in the discretion of the court if the interest of justice require it. Since the suit was decreed under Order XII Rule 6, Code of Civil Procedure, 1908 and plea of waiver was already made in the written statement. Parties had no opportunity to lead evidence. Under the circumstances and in the interests of justice, we allow the application and take the documents on record. ( 12 ) IT was next argued by learned counsel for the appellant/tenant that the respondent/landlord had been accepting rent after service of notice to quit and filing of the suit which constitutes waiver of notice of termination under illustration (a) of Section 113 of the Transfer of Property Act. Reliance was placed on the following observations of the Supreme Court decision in Tayabali Jaferbhai Tankiwala vs. M/s. Ahsan and Co. and Ors AIR 1971 SC 102 :- "5. It seems to us that on the facts which have been established the landlord was bound to fail. It is abundantly clear that he had, in he second notice dated October 18, 1957, treated the tenancy as subsisting and not only the respondent was described as a monthly tenant but also in the plaint, even after the amendment had been allowed, rent was claimed upto November, 1957: thereafter the amount due was described as compensation for use and occupation. The plaintiff was thus fully alive to the distinction between rent and damages for use and occupation and it cannot be said that he had abandoned the second notice and asked for the same to be treated as non est or that he had relied solely under Section 113 of the Transfer of Property Act a notice given under Section 111, clause (h) is waived with the express or implied consent of the person to whom it is given by any act on the part of the person giving it showing an intention to treat the lease as subsisting. Illustration (b) is in the following terms :- (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 as lessee a second notice to quit. The first notice is waived. " ( 13 ) RELIANCE was also placed on the observation of this Court in Smt. Kanta Manocha vs. M/s. Hindustan Paper Corporation 74 (1998) DLT 493. "11. The plaintiff has been accepting the rent from the defendant lessee and allowed them to continue in possession. It is not the case of the plaintiff that there was any agreement to the contrary for accepting the rent nor it is her case that rent was accepted under any reservation. The lease was thus renewed from month to month after 1. 12. 98. It has also been so held in Gooderham and Works Ltd. vs. Canadian Broadcasting Corporation. AIR 1949 PC 90, that where on the termination of the lease, the rent is paid and accepted and the tenant continues with the possession, the tenancy is renewed and would be terminated by serving a notice as contemplated under Section 106 of the Act. " ( 14 ) COUNTERING the above submission Mr. Vijay Kishan, learned counsel for the respondent/landlord argued that mere act of acceptance of rent after service of notice to quit and filing of the suit does not amount to waiver, and referred to several High Court decisions. ( 15 ) IN order to appreciate the rival contentions of learned counsel for the parties Section 113 of the Transfer of Property Act is reproduced below :- "113. Waiver of notice to quit.- A notice given under Section 111, clause (h), is waived, with the express or implied consent of the person to whom it is given, by any act on the part of the person giving it showing an intention to treat the lease as subsisting. ( 16 ) PLAIN reading of Section 113 of the Transfer of Property Act shows that it consists of two essential components: (a) the express or implied consent of the person to whom the notice is given and (b) act of the person giving notice showing the intention to treat the lease subsisting. ( 16 ) PLAIN reading of Section 113 of the Transfer of Property Act shows that it consists of two essential components: (a) the express or implied consent of the person to whom the notice is given and (b) act of the person giving notice showing the intention to treat the lease subsisting. In order to constitute waiver, both the ingredients must concurrently exist, which means the act of acceptance of rent by itself without reference to the intention of the lesfsor, cannot be deemed to be the waiver. Illtration (a) of Section 113 of the Act cannot be construed so as to water down the substantive provision of Section 113. Thus in addition to the receipt of the rent by the landlord there should be other conclusive evidence to show that the landlord intended to treat the lease as subsisting. Of course, the intention can be gathered from attending circumstances but these circumstances must be such which irresistibly lead to the conclusion, that the lessor had intended to keep lease subsisting. The conduct of the parties must justify such an inference. ( 17 ) IN this case undisputed facts are (i) that the respondent/landlord is the owner of the suit premises and the defendant-appellant were inducted as tenants in the premises on 4. 6. 79 on a monthly rent of Rs. 4,840. 20; (ii) that thereafter on the basis of unregistered document dated 26th June, 1979 the defendant-appellant were permitted to retain the premises for a period of more than one year. Since this unregistered document envisaged lease for a period of more than one year the same is not admissible in evidence. Therefore, the tenancy has to be construed as a tenancy on month to month basis, (iii) that rent of the suit premises was raised to Rs. 5,330. 00 w. e. f. June, 1989, (iv) that the plaintiff-respondent, through registered A. D. notice dated 31st January, 1997, terminated the tenancy of the defendant-appellant with effect from 28th February, 1997 calling upon the appellant to vacate the premises and no reply was sent thereto, (v) that the suit for ejectment from suit premises was filed by the plaintiff-respondent on 17th March, 1997 and (vi) the appellant sent arrears of rent vide letter dated 8th January, 1998, accompanying two pay orders dated 17th December, 1997 for Rs. 1,49,262. 96 and 1. 1. 98 for Rs. 5,330. 1,49,262. 96 and 1. 1. 98 for Rs. 5,330. 82 which were claimed to be towards the rent of the premises for the period from September, 1995 to January, 1998. ( 18 ) IT may be recalled that the lease was terminated vide notice 31st January, 1997; the suit was instituted on 12th May, 1997 after about two months of the expiry of the period of notice to quit. Service of termination of notice is not disputed and no defect in the notice has been pointed out. In such circumstances, after the notice to quit is served and the suit for ejectment and for damages for use and occupation is instituted, mere payment of rent on 12. 1. 98 cannot by itself be construed showing the intention of the respondent/landlord to keep lease subsisting. Much was sought to be argued on the basis of the said letter dated 12. 1. 98 written by an employee of the respondent/landlord to the appellant/tenant which is reproduced below:- SARIN and CO. 28, SIRI RAM ROAD, CIVIL LINES, DELHI-110 054 NO. SANDC/dli/98/72dated 12. 1. 1998 THE Manager, THE Bank of Rajasthan Limited B-2, Community Centre, Janakpuri, New Delhi SUB : Payment of rent in respect of Basement and Ground floor of B-2, Community Centre, Janakpuri, New Delhi. Dear Sir, PLEASE refer to your letter dated 8. 1. 98, on the above subject, sending therewith :- I) Pay order No. 147602/1105 dated 1. 1. 98 for Rs. 5330. 82 and II) Pay order No. 147520/1031 dated 17. 12. 97 for Rs. 149262/96 towards rent for the above premises for the period from September, 1995 to January, 1998. In fact, we had not received rent from you from August, 95 onwards. In this connection please find enclosed photocopies of your Pay Order No. 775632 dated 4. 8. 95 for Rs. 106616. 40 and our letter No. SC/dli/96/810, dated 13. 6. 96 intimating to you that the rent received (Rs. 106616. 40) was for the period from December, 1993 to July, 1995. It is thus clear that no rent was received from 1. 8. 95 and the rent now received is for the period from 1. 8. 95 to 31. 12. 97 (and not from 1. 9. 95 to 31. 1. 98 ). Please note and correct your records accordingly. @rs. RIGHT = Thanking you, @rs. RIGHT = Yours faithfully, @rs. RIGHT = for SARIN and CO. 8. 95 and the rent now received is for the period from 1. 8. 95 to 31. 12. 97 (and not from 1. 9. 95 to 31. 1. 98 ). Please note and correct your records accordingly. @rs. RIGHT = Thanking you, @rs. RIGHT = Yours faithfully, @rs. RIGHT = for SARIN and CO. , ( 19 ) PERUSAL of the above letter would show that it was written on 12. 1. 98 i. e. , after the appellant/tenant was duly served in the suit and after they had filed the written statement. In this letter an employee of the owner-landlord only clarified the position regarding the period which would be covered by the amount of rent sent by the tenant-appellant. It was clarified that the period covered would be from 1. 8. 95 to 31. 12. 97 and not 1. 1. 95 to 31. 1. 98 as claimed by the tenant-appellant in the letter dated 8. 1. 98 referred above. It does not at all refer to the intention of the landlord to keep lease subsisting. Mere use of the word `rent cannot be construed to mean waiver of notice to quit. ( 20 ) RENT in its wider sense means any payment made for the use of premises and would thus include a payment by an occupant in respect of use and occupation. After the tenancy has been terminated so long as the tenant does not surrendered possession to the landlord he is bound to make payment for the use of premises in his possession. The word `rent is being descriptive of the amount tendered by the tenant in lieu of his using the premises. ( 21 ) IN Suhas Yashwat Chopde v. Sachidanand D. Punekar 1999 (5) SCC 727 SC observed that it is now well settled by the several decisions of this Court that mere use of the word `rent is not decisive of the relationship of landlord and tenant between the parties. ( 22 ) IN this connection we may also refer to the observation of a division Bench of this Court (consisting of Hon ble Mr. Justice R. C. Lahoti as his lordship then were and Hon ble Mr. Justice S. N. Kapoor) in Vijayshree Commercial (P) Ltd. vs. Tike Jagjit Singh Bedi 1997 DLT Vol. 66 page 359. "14. ( 22 ) IN this connection we may also refer to the observation of a division Bench of this Court (consisting of Hon ble Mr. Justice R. C. Lahoti as his lordship then were and Hon ble Mr. Justice S. N. Kapoor) in Vijayshree Commercial (P) Ltd. vs. Tike Jagjit Singh Bedi 1997 DLT Vol. 66 page 359. "14. 1 Illustration (a) appears to give an impression that mere acceptance of rent due in respect of the property since the expiration of the notice waives the notice. This impression is created only if the illustration is read divested from the context of Section 113. Section 113 speaks of notice being waived by an Act on the part of the person giving the notice "showing an intention to treat the lease as subsisting". The emphasis is on requisite intention of the person giving the notice. Such intention as constituting an essential ingredient on waiver cannot be bidden a goodbye reading the illustration. 14. 2 An illustration does not exhaust the full contents of the section which it illustrates but it can neither curtail nor expand its ambit. (Sambhu Nath vs. State of Ajmer. AIR 1956 SC 404 para 13; Anirudha v. Administrator-General of Bengal, AIR 1949 P. C. 244. An illustration to a Section in a statute cannot have the effect of modifying the language of the section which alone forms the enactment. (Bengal Nagpur Railway Co. Ltd. v. Ruttanji Ramji, AIR 1939 PC 67 ). 14. 3 Use of the word `rent by the tenant-appellant in is letter dated 3. 12. 1993 is not by itself decisive of his having tendered the amount as evidence of demise between the landlord and tenant remaining alive. Moreover be inferred that the landlord having accepted the rent rendered along with the letter use necessarily accepting tendered amount so as to revive or create a demise by the landlord to the tenant. . . . . " ( 23 ) THE preponderous weight of authorities of several High Courts shows that mere acceptance of rent by the landlord from the tenant, after service of notice to quit and institution of the suit by itself would not constitute waiver of notice, or proof of the intention of the landlord to renew the lease. . . . . " ( 23 ) THE preponderous weight of authorities of several High Courts shows that mere acceptance of rent by the landlord from the tenant, after service of notice to quit and institution of the suit by itself would not constitute waiver of notice, or proof of the intention of the landlord to renew the lease. Reference can be made to Ilahibux v. Munir Khan AIR 1953 Nag 219; Ram Lal v. Sardari Lal AIR 1968 Jandk page 22; Moti Lal v. Basant Lal and Anr. AIR 1956 Allahabad 175; Purohit Lakshmanchandji v Vetcha Sree Ramachandra Murty AIR 1976 A. P. 428 and Ramjilal v. Gulabra AIR 1979 Bombay 44. ( 24 ) TWO decisions relied upon Appellant tenant also do no help them in Tayabali Jaferbhai s case (supra even the second notice to quit the tenancy was treated as subsisting, further and even after amendment of the plaint was allowed rent was claimed. It was under these circumstances the court observed that the first notice of termination of tenancy stood waived. Similarly in Smt. Kanta Manocha s case (supra) the plaintiff after service of notice to vacate continued accepting rent from the defendant lessee and allowed him to remain in possession, which is not the case here. ( 25 ) IN this case as observed above, after the expiry of the period of the notice of termination of the tenancy on 31st January, 1997 suit was instituted within a period of two months, which was being vigorously pursued. Thus, the conduct of respondent/landlord accepting the rent in January 1998 i. e. , after about Twelve months, ipso-facto does not establish that his intention was to renew the lease. Attending circumstances do not show the intention of the respondent/landlord was to waive of the notice to quit. No intention to renew or revive the tenancy can be spelt out on the part of respondent/landlord or inferred from the mere use of the word "rent" in the above said letter dated 12. 1. 98. The findings of the trial Court are thus fully justified on the basis of the material on record. ( 26 ) LASTLY learned Counsel for the appellant argued that the assessment of damages for two months Rs. 15,000. 00 per month was fixed arbitrarily and without any enquiry and a decree for mesne profits of Rs. 30,000. 1. 98. The findings of the trial Court are thus fully justified on the basis of the material on record. ( 26 ) LASTLY learned Counsel for the appellant argued that the assessment of damages for two months Rs. 15,000. 00 per month was fixed arbitrarily and without any enquiry and a decree for mesne profits of Rs. 30,000. 00 with proportionate costs passed by the learned trial Court is not sustainable. Learned Counsel, for the respondent frankly and rightly so conceded the same. As the trial Court has ordered an enquiry under Order XX Rule 12, of the Code for determining mesne profits from the date of file of the suit till recovery of possession, it was not justified to assess damages for two months arbitrarily. ( 27 ) THE appeal thus is partly allowed. Judgment and decree of trial Court is modified as under :- (I) the Appeal is dismissed with regard to the decree of possession with costs in respect of the suit premises B-2, Community Centre Block. Janakpuri, New Delhi. (II) the Appeal is accepted against the decree of mense profits amounting to Rs. 30,000. 00 with proportionate costs. The judgment and the decree of the trial Court to that extent is set aside. SUIT is remanded to the trial court as regards determination of the amount of mesne profits after the notice of termination till delivery of possession.