KISHORI LAL Vs. TIRLOKI NATH

JUDGEMENT

(1.) This is a tenant's second appeal against the decision of the Civil Judge of Mathura decreeing the landlord's suit for his ejectment. It is not necessary to relate the allegations made in the plaint and the written statement, for at the second appeal stage I am only concerned with the findings of fact of the appellate court. It has been held that the defendant was the plaintiff's tenant on a rent of Rs. 10 per month, and that three months' rent was due when he received the notice of demand from the plaintiff on 4th Jan., 1960. The defendant had already remitted by money order Rs. 10 being the rent due for the current month which was included in the notice of demand. The landlord refused to accept the money order which must have been returned to the tenant on some date which is unknown. On 25th Jan. the tenant remitted another instalment of Rs. 20 which was received and accepted by the landlord on 1st February. Subsequently on 27th Feb. the tenant again remitted a sum of Rs. 10 which was again refused by the landlord. Treating the tenant as a defaulter, he filed the present suit for ejectment. The trial court dismissed it after holding that the tenant was not guilty of default. On appeal the Civil Judge took a contrary view and held that as the tenant had sent only Rs. 20 in response to a demand of Rs. 20, he was guilty of wilful default. He allowed the appeal and decreed the suit for ejectment. Aggrieved by this decision the tenant has now come to this court in second appeal.

(2.) After hearing learned counsel on both sides, I am of the opinion that the view of the trial court was correct and of the appellate court erroneous. On the date when the tenant received the notice of demand, three months' rent had become due and he was liable to Rs. 30 within one month. He had remitted Rs. 10 by money order which the landlord had refused. A few days later he sent another instalment of Rs. 20 which was accepted by the landlord. Meanwhile the prescribed period of one month expired and the landlord treated the tenant as a defaulter. In my opinion, he could not do so. He had no justification for refusing the first remittance of Rs. 10. Learned counsel for the respondent sought to justify this refusal on two grounds - first, because the tenant had not remitted the entire rent which had fallen due and secondly because, the money order coupon contained a request to the landlord to send receipts for the previous payments. I do not think that the landlord's refusal can be justified on either of these two grounds. Sec. 3 of the U.P. Control of Rent and Eviction Act enjoins that the tenant will lose the protection of that Sec. if he does not remit the rent within one month of the receipt of notice of demand. The Sec. does not insist that the tenant must pay the amount in a single instalment. In my view, the tenant can pay the rent in instalments provided the whole amount of arrears is cleared within the prescribed period of one month. The landlord's duty is to go on crediting each instalment to the account of the tenant. If after the expiry of one month from the service of notice of demand, the landlord finds that he has not received the entire amount due, he can treat the tenant as a defaulter and go ahead with the suit for ejectment.

(3.) Nor does the second ground afford any justification for the refusal to accept the first instalment. The tenant may have demanded a receipt for previous payments, but this did not make the tender of Rs. 10 conditional. The amount tendered and the request for receipt for previous payments were unconnected and it was open to the landlord to accept the amount but refused to send him the receipt. The landlord is justified in refusing a tender of payment only if the tenant offers it on conditions which will prejudice his right to recover the entire amount from the tenant - as for example, where the tenant offers a reduced amount in full settlement of the landlord's claim. In this case there was no such condition and the landlord was not justified in refusing the first instalment.