RADHEY MOHAN Vs. HAR NARAIN DAS

JUDGEMENT

(1.) In this appeal under Section 12 (2), Oudh Courts Acts, a nice point of law is raised. The plaintiff is the landlord and the defendant is the tenant. The plaintiff was demanding rent at the rate of Rs. 27 per month. The defendant honestly believed that the amount payable by him was Rs. 22-8-0 per month. In spite of several demands made by the plaintiff for payment at the rate of Rs. 27 per month the defendant stoutly refused to pay at that rate and insisted on paying the amount at Rs. 22-8-0 per month only. The plaintiff refused to accept rent at Rs. 22-8-0 per month with the result that the defendant started sending money orders to the plaintiff which he refused. The question was whether in the circumstances it could be said that the tenant had wilfully failed to make payment to the landlord of any arrears of rent within one month of the service upon him of a notice of demand by the landlord. It is not denied that notices of demand were sent to the defendant. It is also not denied that the defendant refused to pay in accordance with the demand. It is also now found as a fact that the landlord's claim was proper and the rent was payable at Rs. 27 per month.

(2.) Learned counsel has urged that wilful failure to pay must mean a dishonest refusal where the defendant knows that something is due and yet is not willing to pay. The words in the Act are not

(3.) It was urged by learned counsel that the learned Single Judge had interfered with a finding of fact. We have looked into the judgment of the lower Appellate Court and we do not think it could be said that the lower appellate Court had recorded a finding of fact. The lower appellate Court had found the facts as have been summarised by us above but it thought that unless the defendant had dishonestly refused to pay Rs. 27 per month, knowing full well that Rs. 27 was due, it could not be said that the defendant had wilfully failed to make the payment The learned Single Judge corrected this error and we agree with his decision and hold that the defendant had wilfully failed to make the payment.