“Where a person has instituted a suit seeking eviction, it is difficult to accept the contention at the first blush that he still intended to treat the lease as subsisting. It has to be proved through other evidence showing the facts and circumstances vis-à-vis the conduct of the parties then. Such tender and acceptance of rent may stand to lend support to that favouring waiver. Illustration (a) to section 113 of the T.P.Act, must be understood and applied in consonance with the principle underlying the section and with due reference to the intention of the lessor. There is no warrant for the view that the mere receipt of rent, notwithstanding the intention of the lessor, should, of its own force and divorced from the circumstances of the case, be regarded as amounting to waiver. The termination of tenancy which has been made a cause of action for filing a suit cannot be done away with on the grounds of alleged waiver by the acceptance of a certain amount towards the house rent. The burden of proving all these above lies on the party taking the defence of waiver to non-suit the suitor. In the instant case, barring the factum of tender and acceptance, no other evidence being let in by the defendants, the burden of proof has been found to have not been discharged and no fault is found therein.”
