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26. It was contended by the learned Counsel appearing for the respondent that the landlord had received the rents offered by the tenant subsequent to 1-8-1984 under protest. In his evidence also the landlord had stated that he received whatever rent tendered prior to 11-8-1984 without protest and only from the date of Ex.B4 dated 11-8-1984 he had mentioned the words under protest in the receipts issued to the tenant. However, in view of the decisions of the Apex Court in Dakaya and K.A. Ramesh and the Full Bench decision of this Court in Vinukonda Venkata Ramana v. Mootha Venkateswara Rao, since the entire payments due were made before the institution of the suit i.e., 27-8-1984 the cause of action for instituting the suit is not available to the landlord even though he received the amounts under protest and without prejudice to his rights.

27. In M/s. Sana Optics v. Shyam Sander Bhargava this Court held that where the landlord received the rents paid at irregular intervals without objection, the default cannot be termed as wilful default. To the same effect is the decision in Jyoti Automobiles v. Khet Bai. In both the cases, this Court followed the decisions of the Apex Court in Sundaram Pillai, Dakaya and K.A. Ramesh.

28. It is true that in Dakaya and Ramesh cases, the Supreme Court has not dealt with the issue what would be the consequence if the landlord has received the amounts from the tenant under protest. But, in view of the clear pronouncements of the Apex Court that if the payment has been made before the institution of the suit, the cause of action for instituting the suit will vanish, by implication, it shall be construed that the receipt of amounts by the landlord under protest is of no consequence.

31. However, once the plea of waiver has been taken, the same has to be proved. The conduct of the parties play an important role in determining the question. Whether in a given case, the plaintiff has waived his right of obtaining decree would depend upon the facts and circumstances of each case. In the event it is found as of fact that a landlord has accepted rent without prejudice to his rights and contentions and/or under protest, the same may not constitute waiver. It is a question of fact and cannot be allowed to be raised unless it is properly pleaded and proved.