RAM BABU Vs. PERSHADI LAL

JUDGEMENT

(1.) This is a defendant's second appeal arising out of a suit for recovery of arrears of rent and mesne profits and for ejectment.

(2.) The facts briefly are that the defendant was a tenant of the plaintiff, that the tenancy commenced on the 17th of each English calendar month, that the plaintiff obtained a decree for arrears of rent for the period ending February 16, 1959 that in May 1959 the defendant remitted a sum of Rs. 77/- by money order to the plaintiff intending the amount to cover the rent due under the decree and also of the period ending May 16, 1959. It appears that this money order was refused by the plaintiff. Subsequently he served a notice on July 13, 1959 upon the defendant demanding arrears of rent due for the entire period ending June 16, 1959. There is no dispute that no payment was made by the defendant consequent to this notice.

(3.) When this case was heard by our brother Gupta it was contended that the rent having been tendered by money order, it must be considered that the defendant had paid the rent, and, therefore, there were no arrears of rent due for the period up to May 16, 1959 and, accordingly when the notice was served upon the defendant he was not in arrears of rent for more than three months. Reliance was placed by the defendant upon a decision of our brother Mithan Lal in Khushro S. Gandhi v. Ferjunji J. Gandhi, 1962 All LJ 1086. The learned single Judge hearing this appeal, however, did not accept the expression of law contained in the aforesaid decision, and being of the opinion that the view upon which it was founded deserved reconsideration he referred the appeal before him to a larger Bench.