BABULAL D DAVE Vs. KIRTILAL BABULAL

JUDGEMENT

(1.) This appeal is filed by the defendant-tenant under Sec. 100 of C.P.C., 1908 against the judgment and decree of District Judge, Amreli, in Regular Appeal No. 46 of 1978 decided on 21-2-1981 under which the judgment and decree of the Civil Judge (J.D.) dated 6-5-1978 in Regular Civil Suit No. 65 of 1977 has been confirmed.

(2.) The trial Court under its judgment and decree dated 6-5-1978 decreed the aforesaid suit and the defendant-appellant was ordered to hand over the vacant and peaceful possession of the suit premises on or before 31-7-1978 and also to pay Rs. 104/- as rent and mesne profit upto the date of the suit. It is further ordered that the defendant-appellant shall pay Rs. 6-50 ps. p.m. as mesne profit from the date of the suit till the date of handing over the possession of the suit premises to the plaintiff. The plaintiff has also been awarded the costs of the suit.

(3.) The facts of the case are that the plaintiff through its power of attorney holder filed the civil suit in the Court of Civil Judge (J.D.) at Amreli to recover the vacant possession of the suit premises, details of which has been given in para-6 of the plaint and also to recover Rs. 182.00 as arrears of rent. The plaintiff is the owner of the suit premises of which the defendant-appellant is tenant from 1-11-1959. The rent of Rs. 6-50 ps. was payable month to month in advance and rent note was executed on 27-11-1959 which was for the period of 11 months. After expiry of the period of rent note, the defendant-appellant was to hand over the vacant possession of the suit premises. However, after expiry of the said period, what the plaintiff-respondent submitted that the status of the defendant-appellant has become that of a statutory tenant. The defendant-appellant made default in payment of rent and on 24-12-1976 he was in arrears of Rs. 91.00. As he was in arrears of rent tor more than six months, the plaintiff-respondent sent a notice determining the lease of the defendant-appellant. This notice has been served on 3-1-1977 but thereafter within the period as available to the defendant-appellant neither he tendered or paid the arrears of rent nor he vacated the premises. Hence, the suit for recovery of possession and arrears of rent. After service of the summons, the defendant-appellant filed written statement Ex. 11 and he has denied the suit of the plaintiff in toto. One of the defences has been taken that the suit notice is not legal and the tenancy has not rightly been terminated in accordance with law. The defendant-appellant averred in the written statement that he is ready and willing to pay the standard rent and he had gone to the plaintiff to make the payment of rent but the plaintiff refused to accept the same. So he tendered the rent by M.O. but that has also been refused and no cause of action has arisen to the plaintiff to file the suit.