RAHMATULLAH KHAN Vs. HAJI ALLAUDDIN

JUDGEMENT

(1.) This is a defendant's appeal arising out of a suit for recovery of arrears of rent, damages and also for a sum of Rs. 23/ - on account of house tax which had been paid by the plaintiff -respondent. The appellant was the tenant of the shop in suit on a monthly rent of Rs. 12/ -. The plaintiff -respondent contended that the defendant appellant had not paid rent from 1 -4 -1965 to 31 -7 -1965 and further that he had damaged the shop by keeping its roof un -repaired. A composite notice of demand and determination of the tenancy was duly served by the respondent upon the appellant. The appellant contended that the rent of the premises was only Rs. 10/ - and not Rs. 12/ - that he had remitted the rent in full by money order but the respondent had refused to accept the same and the post office had returned the money order and that he was not liable to pay the aforesaid amount of house tax. The trial court held that the appellant had failed to prove the alleged payment of rent within one month from the date of the receipt of the notice by the appellant. It decreed the suit for rent and ejectment but dismissed it regarding the damage to the shop and also with regard to Rs. 23/ - on account of the house tax alleged to have been paid by the respondent. There was an appeal from the decree of the trial court to the lower appellate court and the lower appellate court remanded the case back to the trial court. The trial court took further evidence and again decreed the suit in part and dismissed it in regard to damages and the sum of Rs. 23/ - claimed by the respondent on account of house tax alleged to have been paid by him. The appellant came again in appeal before the lower appellate court.

(2.) The only question raised before the lower appellate court was whether the appellant had proved the payment of arrears of rent within one month from the date of service of notice on him and whether the return of the money order by the post office could be considered as a refusal by the respondent. It held that the appellant had failed to establish that the amount of rent had been tendered by him to the landlord within one month of the service of the notice, i.e. 10 -9 -1965.

(3.) The appellant has contended before me that the court below has erred in holding that the amount of rent had not been tendered by the appellant to the respondent. He stressed that the return of the money order by the post office should be considered as refusal by the respondent.