BASANT LAL SAH Vs. BHAGWATI PRASAD SAH

JUDGEMENT

(1.) This is a tenant's second appeal from the concurrent decisions of the Courts below decreeing the landlord's suit for his ejectment. The defendant appellant Basant Lal Sah is the tenant of a shop in Nainital of which Bhagwati Prasad Sah is the landlord and owner. The plaintiff alleged that the defendant occupied the shop under a monthly tenancy. He obtained the permission under Section 3 of the U. P. Control of Rent and Eviction Act for the ejectment of the tenant and then served on him a notice terminating his tenancy and requiring him to quit. The notice also contained a demand for payment of arrears of rent. According to the plaintiff, the defendant did not pay the rent within the prescribed period of one month. The defendant resisted the suit and denied that his tenancy was from month to month. He alleged that it was a yearly tenancy in accordance with the prevailing custom in Nainital. He also pleaded that the rent was always paid annually and, therefore, he had committed no default at the time of receiving the notice. He further alleged that after the receipt of notice he remitteed the balance of the rent due but it was refused by the landlord.

(2.) It may be noted that the permission obtained by the plaintiff under Section 3 was quashed by the Commissioner during the pendency of the suit, which however proceeded because the plaintiff claimed that the bar of Section 3 had been removed because of the default in payment of rent.

(3.) The trial Court held that the tenancy was monthly, and that the defendant had made default in the payment of rent. Accordingly it decreed the suit. On appeal the learned Judge confirmed both these findings. The defendant had come to this Court in second appeal.