MOHAMMAD ISMAIL Vs. HAFIZ NOOR ILAHI AND OTHERS

JUDGEMENT

(1.) This is a landlord's second appeal against a decree of the Addl. Civil Judge, Jhansi dismissing his suit for ejectment of the tenant. The facts are these: The Plaintiff Appellant, Mohd. Ismail, is the owner and landlord of a house in Jhansi, a portion of which was let out on rent to the Defendant Hafiz Noor Ilahi after he had obtained an allotment order in his favour from the Rent Control and Eviction Officer. It appears that the landlord and the tenant fell out and the former accused him of having sublet portions of the accommodation to others without his authority. There was also some dispute over the amount of rent. Ultimately the landlord served a notice of demand on the tenant under Sec. 3(1)(a) of the RC and E Act asking him to pay arrears of rent at the rate of Rs. 8 per month. Not receiving the amount, he filed the present suit for ejectment and the arrears of rent.

(2.) The tenant contested the suit. He admitted the tenancy but alleged that no rent had been agreed between the parties or fixed by the landlord under Sec. 5(2) of the UP RC and E Act. He also alleged that he had made remittances by money order at the rate of Rs. 4 per month but the landlord had refused them.

(3.) The trial court believed the tenant's version that he had made remittances which had been refused by the landlord. Accordingly it dismissed the suit for ejectment on the ground that there was no question of default when the tenant was prepared to pay rent and the landlord was not willing to accept it. On appeal the learned Civil Judge held that the tenant's story that he had made regular remittances at the rate of Rs. 4 per month was doubtful and he was not prepared to accept it. It is common ground that the tenant sent one remittance of Rs. 4 which was refused. He, however, held that no rent had been agreed between the parties or fixed by the landlord Under Sec. 5(2) of the RC and E Act, and that in these circumstances the tenant was not guilty of failure to pay arrears of rent within the meaning of Sec. 3(1)(a) of the Act even if he had not remitted the amount demanded by the landlord. He, therefore, confirmed the decision of the trial court though for different reasons and dismissed the suit for ejectment. Aggrieved by this decision the landlord has come to this Court in Second Appeal.