ISRAR AHMAD Vs. SANT RAM

JUDGEMENT

(1.) THIS is a defendants-tenants appeal from the judgment and de cree of the learned Civil Judge of Saharan pur. evicting them from a house and for recovery from them the arrears of rent and damages. Admittedly, the defendants-ap pellants are the tenants of the plaintiff-res pondent in a house situate in the city of Saharanpur on a monthly rental of Rs. 5/-. The defendant did not pay any rent after September, 1965. The landlord seat a notice dated 23-6-1967 served on the ten- ants on 24-6-1967 demanding the arrears of rent from September, 1965 up-to-date. The tenants sent the rent due by a money order but deducted from it a small sum as money order commission. The landlord refused to accept the money order as the amount tendered was not sufficient to satis fy the arrears of rent due. The landlord then caused another notice dated 21-8-1967 to be served on the tenants which was received by them on 22-8-1967. The said notice stated that they having not complied with the previous notice of demand served in June, 1967 they have become defaulters liable to ejectment, hence the tenancy was terminated and they should vacate the house on the expiry of thirty days of the receipt of the notice. It was also mention ed in the said notice that the arrears of rent due should also be paid. On 31-8-1967 the tenants sent the entire amount of arrears by money order. It was refused by the landlord on 13-9-1967. The tenants then made an applica tion on 18-9-1967 under Section 7-C of the U. P. Act III of 1947 (hereinafter called the Act) in the court of the Munsif and deposited the amount of arrears of rent up-to-date on 18-9-1967. After due notice to the landlord the learned Munsif by his order dated 10-2-1968 confirmed the depo sit under Section 7-C of the Act. But be fore the said order was passed under Sec tion 7-C, the suit giving rise to this appeal was instituted by the landlord on 31-1-1968. It was alleged that the defendants having failed to comply with the notice of demand served upon them in June 1967, became defaulters and their tenancy having been terminated by notice under Section 106 of the Transfer of Property Act, they were liable to be evicted having refused to vacate th house as required by the notice. The arrears of rent from 1-9-1965 to 22-9-1967 were claimed. Damages for use and occupation were also claimed.

(2.) THE defence in the main was that the tenants were not in default inas much as they had complied with the notice of demand by tendering the arrears "by money order which was refused and then by depositing the same under Section 7-C of the Act. It was pleaded that the notice of demand dated 23-6- 1967 stood waived by the subsequent notice dated 21-8-1967. The learned Munsif repelled the plea of waiver on the ground that subsequent notice dated 21-8-1967 was not a notice of demand under Section 3 (1) (a) of U. P. Act III of 1947 but was merely a notice for terminating the tenancy under Section 106 of T. P. Aet and the earlier notice of demand dated 23-6-1967 which was a notice of demand of arrears having remain ed uncomplied, the defendants became de faulters and any deposit made by them under Section 7-C of the it more than one month after the receipT of the said notice by the defendants would not enure to their benefit. The suit was decreed for eviction, arrears of rent and damages.

(3.) THE learned counsel for the de fendants-appellants raised the following con tentions in support of the appeal:-