BABU RAM DUBEY Vs. KATLASH NATH VERMA

JUDGEMENT

(1.) This is a defendant's second appeal arising out of a suit for ejectment of the defendant-appellant from a house which was at the relevant time governed by the provisions of U. P. (Temporary) Control of Rent and Eviction Act, 1947 (U. P. Act No. III of 1947) Both the Courts below have decreed the suit. Shortly stated, the plaint case was that the defendant was the plaintiff's tenant in a house numbered 35/470 Nobasta, Agra, on a monthly rental of Rs. 25/ -. The defendant fell in arrears of rent for the period 1-2-1969 to the date of a notice of demand dated 12-6-1969 which the plaintiff served on the defendant. The defendant did not pay the rent demanded within one month of this notice. This notice was followed by another notice dated 3-10-1969 which was served on the defendant on 5-10-1969, whereby the tenancy of the defendant was determined with effect from the expiry of thirty days from the receipt of the notice. The defendant having neither paid the arrears demanded, nor vacated the accommodation, the plaintiff became entitled to a decree for ejectment and for recovery of arrears of rent for the period 1-2-1969 to 5-11-1969 as well as for manse profit for the period 6-11-1969 to 27-1- 1970. The suit was defended by the appellant. He denied that he was in arrears of rent from 1-2-1969. lie also denied the allegation that he was served with the aforesaid notice of demand dated 1-2-1969. As regards the second notice, the defendant asserted that he had offered the entire arrears of rent personally to the defendant within one month of the receipt of the notice but the plaintiff did not accept the same. The trial Court held that the notice of demand dated 12-6-1969 was served on the defendant, and as the defendant did not pay the arrears of rent which was for mote than three months, he was liable to be evicted on the ground of default. The result was that the suit of the plaintiff respondent was decreed both for ejectment as well as for recovery of arrears of rent and mesne profits. The findings of the trial Court were affirmed by the appellate Court on appeal by the defendant. Learned Counsel for the appellant submitted two points for my con sideration;- "1. The Courts below have committed a patent and substantial error of law in treating the notice dated 12-6-1969 as a notice of demand. There was no demand at all by this notice, and consequently, the suit could not be decreed on its basis; (2) The first notice dated 12-6-1969 must be deemed to have been waived by the subsequent notice dated 3-10-1969 and inasmuch as on the finding of the Courts below themselves, the defendant had offered the entire arrears of rent to the plaintiff respondent within one month of the receipt of the notice dated 3-10-1969, the decree of ejectment could not be granted. Paving heard learned counsel for the parties and given the matter a careful consideration, I am clearly of the opinion that the appeal is entitled to succeed on the first of the aforesaid two points urged in support of the appeal. In view of the fact that the appeal is succeeding on the first point. I do not consider it necessary to go into the second point. The notice dated 12-6-1969 (Ex. 2) on the basis of which alone the suit of the plaintiff-respon dent has been decreed reads as follows: Nowbasta, Agra. 12-2-1969. Dear Sri B. R. Dubey Ji. It is to inform you that you are in arrears of rent from 1-2-1969 upto now and Rs. 56/4/- as Bhoom) Kar. Inspite of repeated demands you are not paying the same, you are a bad pay muster. Please pay all arrears within four days otherwise suit for ejectment and arrears will be filed against you. You will be responsible for costs and damages. Yours sincerely, Kailash Nath Varma. " The lower appellate Court has observed that the omission of the word "pay" is not of any significance. It observed that reading the notice as a whole, it was clear that the intention was to demand the arrears of rent stated in the notice. Learned counsel for the respondent supported the observations made by the lower appellate Court in this regard and urged that the intention of the giver of the notice was unmistakable. The notice was clearly one which called upon the defendant to pay the arrears within four days of the receipt of the notice. The subsequent words of the notice, namely, ". . . . . . otherwise suit for ejectment and arrears will be filed against you. . . . . . . . . "are clearly suggestive of the fact that the omission of the word "pay" was caused inadvertently. Having given the matter a careful con sideration, I find it difficult to agree with the line of reasoning adopted by the lower appellate Court. The requirement of law was not that the landlord should have intended to demand the arrears of rent, but that the arrears of rent should have been actually demanded in order to constitute a default within the meaning of Section 3 (1) (a) of U. P. Act No III of 1947. The said enactment provided a complete bar to the institution of suits for the ejectment of the defendant except if the suit was based on one or the other of the grounds enumerated in Section 3 (1) (a) of the said Act. The said provisions have, therefore, to be applied strictly before granting a decree for ejectment against a tenant. The provision envisages a clear and categorical demand of the arrears. It is upon failure to comply with such a demand alone that the tenant might be said to have lost the valuable protection sanctioned by the law. It is not disputed that the notice in question, namely, Ex. 2 did not contain the crucial word "pay". There was hence no demand as such. It is another matter that the tenant ought to have thought that the landlord might have fully intended to demand the arrears. But if the landlord actually omitted to make the demand, even though accidentally, the tenant could not be held to be a defaulter, if he failed to comply with such a notice. I am clearly of the view that in order to constitute a default within the meaning of Section 3 (I) (a) of the Act it was not enough to convey merely an intention to demand the arrears of rent. Before the tenant could be said to have com mitted a default, there must have been a clear and unequivocal demand to pay the arrears of rent. There was, in my opinion, such demand, even if omission to make the demand was unintentional. Learned counsel for the plaintiff-respondent cited several cases including Harihar Banerji v. Ram Sahai Roy, A. I. R. 1918 P. C. 102 in support of his contention that a notice ought to be construed not with a desire to find faults with it but that it should be read as a whole to find out the true intention of the person giving the same. To my opinion, there can be no dispute about the above conten tion as a proposition of lav, but it has no application to the present case. In the first place, we cannot import the considerations whist are relevant for construing a notice under Section 106 of the Transfer Property Act when dealing with a notice contemplated under a special incitement like the U. P. (Temporary) Control of Rent and Eviction Act, (U. P. Act No. III of 1947) which was avowedly legislated for the protect of tenants. In this case, I find no warrant for reading the word pay the notice. The result of the aforesaid discussion is that the notice dated 12-6-1969 (Ex. 2) could not be construed as a notice of demand, and consequently, it non-compliance could not afford a ground for eviction of the appellant. In the result, the appeal succeeds and is allowed. The judgments and decrees passed by the Courts below so far as relief for ejectment is concerned are set aside. The suit of the plaintiff-respondent for ejectment is dismissed. The decree for arrears of rent granted by the lower appellate Court amounting to Rs. 112/92 is, however, affirmed. The parties are how ever, left to bear their own costs both of this Court as well as of the Courts below. .