OM PRAKASH Vs. NARENDRA PRAKASH RASTOGI

JUDGEMENT

(1.) The present appeal raises a very short question. The admitted facts of the case are that Om '.Prakash and Ram Prakash, the original Appellants jointly took the disputed shop from the Plaintiff-Respondent. The Plaintiff served a notice of demand and ejectment on the Defendants on 27-11-1968. By that notice rent for a period of 6 months was demanded as due. The Defendants, in their turn remitted Rs. 70/- by money order on 20-12-1968. That money order was refused by the Plaintiff on 31-12-1968. The courts below had decreed the suit for ejectment on the ground that there was a default. They relied upon an earlier Division Bench case in which it was held that the Post Office while delivering the money order was the Agent of the tenant. Even if the money order was sent within a period of 30 days but it was tendered after the expiry of the aforesaid period, there was a default. That matter was subsequently decided by a Full Bench reported in Bhikha Lal v. Munna Lal, 1974 AllLJ 470. It was held in that case that if the tenant had remitted the money within the period of 30 days there was no default, even if the money order tendered after the expiry of the period. In view of the Full Bench aforesaid the appeal has to be allowed.

(2.) Learned Counsel for the Respondent moved an application that Appellant No. 1 Om Prakash had expired. His heirs and legal representatives were not brought on record. He prayed that the appeal be dismissed as abated. As I have already mentioned in the facts narrated above that the shop was let out to the Defendants jointly by one lease. Obviously they were joint tenants and even if one tenant expired the other tenant was entitled to continue the lease and was bound to fulfil the commitment under the lease even relating to the other joint tenant. It was not a case of cotenancy. Under the circumstances the appeal cannot be abated and the estate in the lease was amply represented by the surviving tenants.

(3.) In the result the present second appeal is allowed. The judgment and decree passed by both the courts below are set aside and the suit of the Plaintiff is dismissed. There will be no order as to costs. It is, however, made clear that the Plaintiff will not be bound to return the damages or rent realised by him under the decree and he could appropriate the same as rent. The Defendant will be entitled to adjustment of all the amounts paid towards the mesne profits or rent. The parties are directed to bear their own costs.