MOINUDDIN Vs. MOHAMMAD IMAM UDDIN ASHRAF

JUDGEMENT

(1.) THIS second appeal arises out of a suit for ejectment and recovery of arrears of rent. The suit was decreed by Sri R. P. Nigam, 2nd Additional Munsif, Lucknow and on appeal by the tenant, the trial court's decree was maintained by Sri B. P. Sri-vastava. Civil Judge Malihabad, Luck-now. The tenant Moinuddin has come up in the second appeal.

(2.) THE facts of the case are brief ly these. The appellant was admitted ly a tenant of the plaintiff- respondent Choudhry Mohammad Imamuddin Ashrat A suit for ejectment and recovery of arrears of rent was also filed by the : landlord, being suit No. 201 of 1962. In that suit the allegation was that the tenancy related to an open piece of land. The tenant pleaded that the rent ed premises consisted not only of land but also of some roofed constructions on a part of the land and so the U. P. (Temporary) Control of Rent and Evic tion Act (hereinafter referred to as the Act) was applicable to the rented ac commodation and the suit could not therefore have been instituted by rea son of the bar created by Section 3 of the Act. In that suit it was found as a fact by the first appellate court that what had been let out to the tenant was an open piece of land along with a kothri and latrine existing thereupon and the suit was therefore barred by Section 3 aforesaid. Therefore the suit was decreed for a very small part of the rent claimed, the rest having been held to be paid up. In the second appeal filed by the landlord in this court the matter was ultimately left to the special oath of the tenant who stated on special oath that the tenancy cover ed a kothri and a latrine. The second appeal was therefore dismissed on 6-12- 1966. The very next day a notice of de mand of arrears of rent and ejectment was sent by the landlord to the tenant, but again a fresh notice of ejectment was later given which was served on the tenant on 17-1- 1967. The suit under appeal was then instituted on 16th February. 1967 giving out the rented premises to be a piece of land with kothri having five Dars, that is to say, five shutterless doors or gates. The suit for eviction was said to be maintainable on two of the several grounds on which a suit under Section 3 of the Act can be filed without ob taining the permission of the District Magistrate. These grounds were that the tenant had failed to pay the arrears of rent for more than three months to the landlord within one month of the service upon him of the notice of de mand and, secondly, that the tenant had, without the permission in writing of the landlord, made constructions which had materially altered the ac commodation. A sum of Rs. 1,260/-was claimed as arrears of rent and damages for use and occupation re coverable up to the date of institution of the suit.

(3.) THE position in regard to pay ment of rent was this. It came to be admitted between the parties that rent which was unpaid by the time the notice dated 7-12-1966 was given, that is to say, rent payable up to the month of November, 1966, amounted to Rs. 1,120/-. The notice was received by the tenant on 10-12-1966. The tenant had remitted by money order Rs. 490/- on 27-11-1964 and again a similar sum by money order on 9-12-1966. Both the amounts were accord ingly sent before the receipt of the notice. Both the money orders were refused by the landlord and the amount remitted came back to the tenant. After the receipt of notice and after the re turn of the amounts already sent under the two aforesaid money orders, the tenant remitted again by two money orders on 6-1-1967 a total amount of Rs. 1126/-, there being one money order for Rs. 600/- and the other for Rupees 526/- The landlord1 refused to accept these money orders on 14-1-1967 and the monies came back to the tenant. Since there is no evidence that the said two money orders were taken by the Postman to the landlord prior -to 14-1-1967 also, it is to be assumed for the purpose of the case that they were first taken to him on 14-1- 1967. The controversy which arose for decision was whether the money orders for Rs. 600/- and 520/- not having actually reached before the landlord by 10-1-1967, the tenant was to be regarded as having failed to pay the arrears with in one month of the notice of demand. The trial court held that the defendant had not committed default in the pay ment of rent because he had sent the same within reasonable time to reach the landlord before the expiry of the period of one month from the receipt of the notice. The appellate court however took a different view and held that the tenant had failed to pay the arrears of rent demanded within one month of the notice of demand.