MOHAN LAL Vs. KUNWAR SEN

JUDGEMENT

(1.) THE appeal first mentioned was filed by the defendant in a suit for ejectment and arrears of rent regarding a shop together with some rooms on the first floor. There was originally a lease granted by the plaintiff-respondent to the defendant on 27-4-1938 for one year. It was provided in the lease that the rent shall be paid from month to month according to the Hindi calendar and that the tenancy was to begin from Baisakh Badi 1, Sambat 1995. Prior to the suit, the plaintiff had served a notice dated 8-12-1944 on the defendant, demanding arrears of rent and also the vacation of the premises. Subsequently another notice was sent on 23-12-1944, in which a certain error in the earlier notice with regard to the real date of the commencement of the lease was sought to be rectified.

(2.) IT may be mentioned at once that, in para 1 of the plaint, the plaintiff had alleged that the monthly tenancy, meaning of course the tenancy at will that had come into existence after the expiry of the period covered by the written lease of 27-4-1938, commenced on the 1st of each hindi month. This was admitted in the corresponding paragraph of the written statement. There was, therefore, no doubt on the question, and this indeed is the finding of the lower appellate court also, that the tenancy began on the 1st of each Hindi month.

(3.) THE defence taken was that, although the tenancy alleged by the plaintiff was a fact, there had been no default in payment of rent as the defendant had tried to make such payment in various ways, the same not being accepted by the defendant that the notices given by the plaintiff were invalid and that the defendant was not liable to be ejected in view of the protection afforded by the Defence of India Rules.