SMT. PARBATI Vs. BABU LAL

JUDGEMENT

(1.) THIS is a plaintiffs appeal. The plaintiff Smt. Parbati is the owner of certain shop in which Babu Lal, defendant respondent, is a tenant on payment of rent of Rs. 17/- per month. The undisputed facts are that the defendant respondent, Babu Lal, executed a Kiryanama dated 1-8-48 in favour of one Pragi Lal who was the husband of Smt. Parbati appellant in respect of the shop in suit. The defendant respondent paid rent regularly to Pragi Lal. After the death of Pragi Lal a dispute arose between his widow Smt. Parbati plaintiff appellant and one Lalman who was the real brother of deceased Pragi Lal. Lalman claimed that the shop in suit was joint family property consisting of him and his deceased brother and he had half share in it. A suit No. 148 of 1956 was filed by Smt. Parbati against Babu Lal and Lalman in which she claimed the whole of the rent of the shop from Babu Lal. Lalman filed another suit No. 679 of 1956 against Babu Lal and Smt. Parbati claiming half of the rent for the shop. For reasons not known from the record Smt. Parbati withdrew her suit No. 148 of 1956. In the suit of Lalman No. 679 of 1956 a decree was passed on 18-7-1958 in which it was held that Lalman and Smt. Parbati were entitled to receive the rent from Babu Lal in equal proportions. Smt. Parbati filed an appeal from the decree of the learned Munsif in that suit and succeeded. The appellate court by a decree dated 8-2-1960 dismissed Lalmans suit holding that Smt. Parbati was the full owner of the shop. However, during the pendency of that appeal Smt. Parbati sent a notice dated 22-1-1959 to Babu Lal intimating that rent for thirtyone months from 1st June, 1956 to 31st December, 1958 amounting to Rs. 527/- was due and was to be paid but inasmuch as there has been a dispute about it between herself and her brother-in-law Lalman and a decree in suit No. 679 of 1959 had been passed entitling her to receive only half of the rent and that decree was under appeal, so for the time-being he (Babu Lal) should pay her half of that amount that is Rs. 263/8/- within one month of the service of the notice. In the same notice Smt. Parbati further intimated to Babu Lal that she did not want to keep him as a tenant and the tenancy would stand terminated on the expiry of thirty days from the receipt of that notice by which date he should vacate the shop. This notice was served on Babu Lal, defendant respondent, on 24-1-1069. Babu Lal admittedly did not pay anything within one month of the service of this notice. He, however, claimed that he had made certain payments earlier and further that he had deposited certain amounts under section 7-C of the U. P. Control of Rent and Eviction Act and claimed that the notice of demand was complied with. Since according to the plaintiff the notice of demand remained uncomplied and Babu Lal, defendant respondent, defaulted and did not vacate the premises, hence the suit for recovery of arrears of rent, mesne profits and for eviction. This is the suit which has given rise to the present appeal.

(2.) THE defence of Babu Lal was that he had complied with the notice of demand; that the notice of demand and terminating the tenancy was not valid and that Smt. Parbati alone had no right to maintain the suit for eviction. These were then some of the main pleas in defence, I am not concerned in this appeal with other pleas raised in defence.

(3.) THE only material question which arises for determination in this appeal is this, whether the notice dated 22-1-1959 (Ex. 5) on record is a notice of demand for arrears of rent as contemplated by clause (a) of sub-section (1) of Section 3 of the U. P. (Temporary) Control of Rent and Eviction Act (hereinafter called the Act). In the earlier part of my judgment while narrating the facts I have already summarised the relevant contents of the said notice. The submission on behalf of the plaintiff appellant was that the court below erred in holding that the notice of demand was complied with. It was pointed out that a sum of Rs. 263/8/- was demanded; even if all the payments made by the defendant respondent were accepted as payment towards the arrears of rent it amounted only to Rs. 238/- and that being less than Rs. 263/8/- the notice remained uncomplied. There is no doubt in my mind that the learned judge of the court below fell into an obvious error in holding that the payment of Rs. 238/ complied with the demand made in the notice. But that error of the learned Judge, to my mind, does not affect the decree which he has passed for I am of the opinion that the notice (Ex. 5) dated 22-1-59 was not a notice of demand as contemplated by clause (a) of sub-section (1) of section 3 of the Act. What is contemplated by the provisions of clause (a) is that whole of the rent which has been in arrears for more than three months should be demanded by the landlord and a tenant must tender the same within one month of the receipt of the notice. It follows, therefore, that if in a notice the whole of the rent which has been in arrears for more than three months is not demanded it would not be a notice as contemplated by clause (a). The learned counsel for the appellant strenuously contended that a notice of demand need not mention the exact figure of the rent in arrears and even if an exaggerated demand was made, it would be a good notice and likewise it would be a good notice if no figure is at all mentioned for it is the duty of the tenant under that clause to tender whatever he thinks is the arrear due and on that basis the learned counsel urged that if a lesser amount is mentioned in the notice by the landlord that would not make any difference for the reason that the tenant knows best what was the rent which had fallen in arrears and he was liable to tender the same within thirty days of the receipt of the notice. In the alternative the learned counsel for the appellant urged that even if an amount lesser that what actually is in arrears is demanded, it is the duty of the tenant to tender what was demanded in the notice and if he fails to tender the amount demanded he would fail to comply with that notice and would be a defaulter inasmuch as what clause (a) requires is only a demand of arrears of rent and the payment of the same by the tenant. This latter argument of the learned counsel pre-supposes that a notice of demand for a lesser amount than what actually and admittedly was due is a notice as contemplated under clause (a). The question is whether different considerations would apply to a notice wherein the landlord himself demands a lesser amount of rent than what actually is due than those applying to a notice where the landlord demands an exaggerated amount or does not mention any amount at all. Having given due consideration to the arguments made by the learned counsel for the appellant. I am of the view that there is a difference between the two kinds of notices, namely, one in which the landlord demands a lesser amount than the amount which admittedly is in arrears, and a notice where he demands an exaggerated amount or does not mention any amount at All. A notice of demand is nothing but an intimation calling upon the person who is liable to tender something to tender it. Thus a notice of demand for payment of arrears is an intimation to the tenant to tender the amount of money which represents that arrear Clause (a) contemplates the payment by the tenant of all the amount which is in arrears for more than three months. This is clear from the use of the word "same in that clause. If the landlord intimates to the tenant that he should not pay all the arrears but only a part of it, that is, a lesser amount, then it is not a demand by the landlord for all the arrears which are due. The tenant is liable to meet the demand. If the landlord himself demands lesser amount the tenant is under no duty to pay the whole of it. If what is demanded by the landlord in a notice of this kind which is an amount less than the actual arrears due and it is paid by the tenant within thirty days of the service of that notice, the tenant would still remain in arrears, for the whole of the arrears has not been wiped out by that payment. It is clear to my mind that in those circumstances it cannot be said that the whole of the arrears due were paid up as admittedly on the basis of the demand made by the landlord only a part of it has been paid. Clause (a) contemplates a demand of the kind which would enable the tenant to discharge whole of his liability incurred by him by keeping the rent in arrears. It does not contemplate the discharge of that liability partly. Since it is inherent in a notice that makes a demand of a lesser amount than what actually is due from the tenant and its compliance by the tenant would still keep him in arrears and would not result in the complete discharge of his liability for the payment of arrears, then such a notice if considered to be a good notice under clause (a) would always leave a tenant in arrears and the landlord can turn back upon him by filing a suit for his ejectment on the ground that a notice of demand for arrears was served on the tenant but he failed to pay the whole amount of arrears due up-to-date within thirty days of the service of that notice. Viewed in this light such notices will always be like a trap on the part of the landlord to snare the tenant and I do not think clause (a) contemplated a notice of demand which though complied by the tenant would yet serve a foundation for the landlord to clear the bar which section 3 of the Act imposes upon the filing of a suit for eviction of a tenant. It is obvious that in a notice where a larger amount is demanded or no amount is mentioned and the tenant is asked to pay the arrears within thirty days of the service of that notice, there is no trap and no snare and it also furnishes a proof of the intention of the landlord for demanding the whole of the rent which is due and not only a part of it. The two kinds of notices stand on different footing. While a notice of the kind where an exaggerated amount is mentioned or no amount is mentioned is a good notice under clause (a), the notice of the kind where the landlord deliberately demands a smaller amount than what actually is due as arrears, as said above, is not a notice contemplated under clause (a).