BEHARI LAL Vs. BABU RAM AND ANR.

JUDGEMENT

(1.) The main point for consideration in this second appeal is whether in a notice issued under Sec. 3(1) (a) of the U.P. (Temporary) Control of Rent and Eviction Act, 1947 (hereafter referred to as the Act) a landlord is entitled to include arrears of rent, which can not be recovered through Court.

(2.) The plaintiff-appellant is the owner of a certain house situate at Ghaziabad, District Meerut. The two defendants-respondents occupied the house as his tenants on a monthly rent of Rs. 7/12/6. Rent remained unpaid from 1-6-1955. Arrears from 1-6-1955 to 30.4.1960 came to Rs. 459/1/6. In June 1960 the plaintiff served upon the defendants a notice under Sec. 106, Transfer of Property Act. In the same notice the landlord demanded payment of rent from 1-6-1955. On the receipt of the notice, the defendants offered rent for three years. But the landlord refused to accept the money. The tenants sent the money by money order. The money order was also refused by the plaintiff. He filed against the defendants a suit for their ejectment. He claimed arrears of rent for three years. He also claimed pendente lite and future mesne profits at the rate of Rs. 20.00 per month. The plaintiff claimed a sum of Rs. 305.62.

(3.) The defence was that rent for three years had been offered by the tenants, to the landlord on the receipt of the notice. In view of the landlord's refusal to accept the payment, the defendants were not liable to ejectment. This plea was not accepted by the learned Additional Munsif, Ghaziabad. He held that defendants made default in paying rent. The trial court therefore passed in plaintiff's favour a decree for ejectment of the defendants. The court also passed a decree for Rs. 280.12 on account of arrears of rent along with pendente lite and future damages for use and occupation at the rate of Rs. 7/1216. The defendants went up in appeal. The learned Second Civil Judge, Meerut held that, the landlord was not justified in including in the notice issued by him arrears of rent for more than three years. The court held that, in view of that defect in the notice, the defendants were not liable to ejectment. The learned Civil Judge therefore refused the relief for ejectment and mesne profits. The decree in plaintiffs favour was confined to a sum of Rs. 272/3/6 on account of arrears of rent. The plaintiff has come up in second appeal.