RAMESHWAR DAYAL SHARMA Vs. ABDUL ALIM

JUDGEMENT

(1.) The present second appeal has been filed by the defendant against a decree for his ejectment from the disputed accommodation. The suit was filed by the plaintiff-respondent claiming that he had first served a notice dated 16th of Dec. 1966 demanding rent from the defendant for the period commencing 1st June 1966 to 30th Nov- 1966. The rent was at the rate of Rs. 12/50 per month. Besides the rent Bhumi Bhawan Kar and electricity dues were also demanded by the plaintiff. It was alleged that the defendant sent a cheque for Rs. 75/- towards arrears of rent alone and refuted his liability to pay the other dues. This cheque was accepted by the plaintiff and subsequently a notice dated 3rd Feb. 1967 was issued to the defendant claiming the other dues and the rent- for the months of Dec. 1966 and Jan. 1967. The defendant again in reply to that notice sent cheque for Rs. 25/- i. e. the rent for two months alone but did not remit any other amount. Finally a notice terminating the tenancy was issued on 28th Tune 1967 but no demand was made in that notice. It was claimed by the plaintiff that the defendant had committed a default in payment of rent and consequently. was liable to ejectment.

(2.) The defence was that the plaintiff having appropriated Rs. 75/- sent by cheque to him in reply to his notice dated 16th Dec. 1966 was bound by the direction for appropriation under Sec. 60 of the Contract Act. Obviously the rent up to 30th Nov. stood cleared up and only the matter relating to Bhumi Bhawan Kar and electricity dues remained in dispute. When notice dated 3rd Feb. 1967 was sent the rent could alone be due for the months of Dec. and Jan. and therefore on the date of that notice the rent for more than four months was not due. In reply to that notice again the defendant sent Rs. 25/- by cheque which was accepted and, therefore, even that rent was wiped off.

(3.) The trial court held that the defendant committed a default in payment of rent as he did not pay the bank commission charged on the aforesaid two cheques from the plaintiff.