GOVIND RAO Vs. KANHAIYA LAL

JUDGEMENT

(1.) This is a defendant's second appeal arising out of a suit for recovery of arrears of rent, mesne profits and possession by ejectment of the appellant from premises in occupation of the appellant as tenant of two minors, viz. Lal Chand alias Koka and Smt. Dhanui. The suit was instituted by the plaintiff respondent Kanhaiya Lal describing himself as guardian of the two minors. The assertion on the basis of which ejectment of the appellant was claimed was that the appellant, in arrears of rent for more than three months, had failed to pay the same to the respondent within one month of the service of a notice upon the appellant demanding payment. The suit was contested and the only plea in contest, with which we are concerned in this second appeal, was that the appellant had not failed to pay arrears of rent demanded on behalf of the plaintiff. The trial Court decreed the suit for recovery of a certain amount of money as arrears of rent, as also for ejectment of the appellant. The said decree was affirmed in appeal and, thereafter, the second appeal before us was filed. When it came up before Trivedi, J. on the 4th Nov. 1970, it was pointed out to him that the decisions of this Court in two cases, reported respectively in 1967 A.L.J.R. 491 and 1967 A.L.J.R. 1029 were conflicting. Trivedi, J. therefore, considered it proper that the appeal be decided by a Division Bench. This is how this appeal has come up before us.

(2.) After hearing learned counsel for the parties we have no hesitation in coming to the conclusion that the decision recorded by Courts below was perfectly correct.

(3.) There is no controversy about the following facts. The house in dispute, wherein the appellant resided is situate in the city of Mirzapur. The plaintiff's residence was in village Bharetha, Tahsil Chunar in the district of Mirzapur. The appellant having fallen into arrears of rent period of more than three months the plaintiff respondent issued a notice the appellant demanding payment of those arrears. This notice was received by the appellant on the 27th of Oct., 1965. Thereafter on the 15th of Nov., 1965 the appellant placed an order with the postal authorities for remission of the amount claimed in the notice to the plaintiff respondent. The address of the payee was correctly stated on the money order form but the amount remitted was offered to the plaintiff-respondent on the 29th of Nov., 1965. The plaintiff-respondent appears to have refused to accept the money order. There is nothing on the money order coupon received back by the appellant to indicate that the amount in the money order had been offered to the plaintiff on nay earlier date, not is there any evidence to that effect. The 29th of Nov., 1965 on which date the money was offered by the postal peon to the plaintiff but refused by the plaintiff was of Sec. 3(1) of the U.P. Control of Rent and Eviction Act. The Courts below have taken the view that in the circumstances failure on the part of the defendant to make payment took place as contemplated by Sec. 3(1)(a) of the Act, with the result that the plaintiff was entitled to sue as the appellant for ejectment, without the permission of the District Magistrate.