VED PRAKASH GUPTA Vs. DIN DAYAL

JUDGEMENT

(1.) THIS is a Defendant's second appeal that arises out of a suit for ejectment and for recovery of damages for use and occupation. The second appeal came up first before Hon'ble Mr. S.N. Sahai. He thought that one of the questions raised in it was of substantial importance and as there was no authoritative pronouncement of this Court on that question he referred the cast to a Bench. That is how the case has come before us.

(2.) THE Appellant was a tenant of the respondent in respect of the disputed shop on a monthly rent of Rs. 40. The rent, for the months of April and May l953 fell in arrears and on the 1st of June, 1953 the Plaintiff sent a notice to the Defendant demanding the sum of Rs. 80. The notice was served next day. The statutory period of one month, during which the demand had to be complied with, expired on the 2nd of July 1953 but the rent was not paid. The Plaintiff thereupon served a notice terminating the Defendant's tenancy. This notice was sent on the 3rd of July 1953 requiring the Defendant to vacate the shop by the end of that month. The notice was served on the Defendant on the 4th of July 1953. This notice too was not complied with. The Plaintiff then filed a suit on the 11th of August, 1953 for the ejectment of the Defendant and for the recovery of Rs. 14 -3 -0 as damages for use and occupation for the period 1st of August, 1953 to 11th of August, 1953. Before this suit was filed the Defendant had sent by money order a sum of Rs. 160 due from him on account of rent for four months, April, May, June and July 1953. The suit was contested by the Defendant on various grounds. The Defendant pleaded inter alia that he had sent a money order for Rs. 120 to the Plaintiff in July, 1953, but the same had been refused. He also pleaded that he had not committed any wilful default in payment of rent and that as rent had been accepted after the service of the notice of ejectment that notice had really been waived.

(3.) THE Defendant has now come up in second appeal and only two grounds have been pressed on his behalf before us. It is contended in the first place that rent having been accepted after the notice of ejectment had been served the notice must be deemed to have been waived. The suit for ejectment could not, therefore, be decreed. The second contention is that in any case Act XVII of 1954 having come into force and the original Cl. (a) of sub S. (1) of S. 3 of the UP Temporary Control of Rent and Eviction Act having been substituted during the pendency of the suit by a new clause The new clause should have been complied with. That clause required that at least three months rent should be due before a notice of demand could be served. No notice demanding three months' rent in arrears had ever been served by the Plaintiff. The only notice served related only to two months' rent. The entire rent due had been paid before the suit was filed. The suit for ejectment could not therefore be maintained without the permission of the District Magistrate.