KHUSHRO S. GANDHI Vs. FERJUNJI J. GANDHI

JUDGEMENT

(1.) This second appeal filed by the plaintiff arises out of the dismissal of his suit for eviction of the defendant.

(2.) The plaintiff-appellant is the landlord of the disputed accommodation, 8 Hastings Road, Allahabad, while the defendant is a tenant on a rent of Rs. 15 per mensem."The defendant's tenancy commences from the first of every month. The plaintiff alleged that the defendant had not paid the rent in spite of service of a notice of demand and as three months' rent had fallen in arrears the defendant was liable to ejectment. In the suit the plaintiff claimed Rs. 285 as arrears of rent from 1st Feb. 1953 to 31st Aug. 1954. A prayer for damages for use and occupation was also made.

(3.) The suit was contested on the grounds that the defendant had not made any default in the payment of rent and that he had been paying rent month from month through cheques as agreed upon between the parties. It was stated that the cheques were never dishonoured and the defendant learnt about the non-cashing of the cheques only after the receipt of the notice of demand given by the plaintiff. Thereafter, he made an application under Sec. 7-C of the U.P. (Temp.) Control of Rent and Eviction Act on 19th Aug. 1954 and deposited a sum of Rs. 285 being the rent from 1st Feb. 1953 to 31st Aug. 1954. It was alleged that the defendant never made any default in the payment of rent and in spite of the refusal of the monthly cheques issued by the defendant he took care to deposit the entire rent in the court of the Munsif having jurisdiction and so this deposit, though contested by the plaintiff, had the effect of payment of arrears and the defendant could not be called a tenant in default.