GANGA PRASAD Vs. SAHDEO PRASAD

JUDGEMENT

(1.) GANGA Prasad, appel lant, appeals from a decree of his eviction from an accommodation in the ground- floor of a tenement in Kanpur City passed by the lower appellate Court after reversing the decree of dismissal of the suit by the Court of first instance. The plaintiff-respondent, Sahdeo, purchased the tenement, of which the accommodation in suit was a part, on 15th March, 1956. The previous owner of the tenement was Bhagwandin. The allot ment order under the U. P. (Temporary) Con trol of Rent and Eviction Act (hereinafter called the Act) was passed in the name of Girja Shankar, son of Ganga Prasad, de fendant on 16-1-1956. The accommodation let out in pursuance of the allotment order was used by Ganga Prasad and his son Girja Shankar as a 'Godam'. Originally the rent payable for the accommodation to the pre vious owner Bhagwandin was Rs. 10.00 per mensem but it was increased to Rs. 12.75 Paisa by the plaintiff, Sahdeo. It was alleg ed by the plaintiff that the defendant Ganga Prasad who was the tenant, fell in arrears of more than four months; that a notice of demand for payment of arrears within one month of the service thereof and terminating the tenancy given under Section 106 of the Transfer of Property Act was served on the defendant; that the defendant did not pay the arrears of rent due within one month of the service of the notice and did not vacate the premises on expiry of one month of the service of the notice, hence the suit for evic tion, arrears of rent and mesne profits.

(2.) THE suit was defended by the de fendant, Ganga Prasad, on the plea that he had taken the accommodation on rent from Bhagwandin on a rental of Rs. 10.00 per month and that when the plaintiff became the owner by purchase, the rent was increas ed to Rs. 12.75 Paisa per month; that no notice demanding the arrears of rent and terminating the tenancy was ever served; that the defendant was always willing and ready to pay the rent and the rent personally tendered by him was refused by the plaintiff on some pretext or the other and that the defendant was entitled for reimbursement in respect of the costs incurred by him in re pairing the accommodation.

(3.) HERE I may point out that there seems to be some confusion as regards the contents of paragraph 14 (a). In the ap plication for amendment paragraph 14 (a) says that the tenancy was settled with Ganga Prasad and Girja Shankar as joint tenants family, but as incorporated the paragraph reads as stated above. A rejoinder was then filed on behalf of the plaintiff controvert the amended pleas set up in the written state ment and it was pleaded that the tenancy was settled with Ganga Prasad and not jointly with Ganga Prasad and Girja Shankar, the latter having nothing to do with the tenancy and Ganga Prasad being the father and senior member of the family looks after the business carried on in the name of Ganga Prasad Girja Shankar. It is he who always paid the rent and is the tenant. Thus Girja Shankar is not a necessary party. Two new issues were added by the trial Court on 8-5-1965 to the effect: "whether the tenancy was in the name of the defendant and Girja Shankar jointly and whether the suit was bad for want of notice to Girja Shankar." The Trial Court having found on the evi dence on the record that the tenancy was a joint tenancy in the name of the defendant and his son Girja Shankar, the latter was a necessary party, dismissed the suit. How ever, the trial Court held that the notice of demand of arrears of rent and termination of tenancy was duly served on Ganga Prasad by refusal of the registered envelope con taining the notice, with the result that the trial Court dismissed the suit for eviction but decreed it for recovery of arrears of rent.