NOOR ILAHI Vs. MOHD UMAR AND A

JUDGEMENT

(1.) THIS is a defendant's appeal arising out of a suit for ejectment and arrears of rent. The only question involved in the appeal is whether the defendant was a defaulter in the payment of rent within the meaning of Section 3 of the U.P. (Temporary) Control of Rent and Eviction Act. The appellant was a tenant of the premises in dispute. He was alleged to have fallen into arrears from March 1, 1961 to October 31, 1961. A notice of demand dated November 23, 1961 was served on the appellant on November 24, 1961. He remitted the amount under demand by money order dated December 26, 1961, December 24, 1961 and December 25, 1961 being a Sunday and a X'mas holiday. The appellant had also averred that he had tendered the rent earlier to the plaintiff but the same was not accepted by him. The money order was refused and so a deposit was made of the amount under Sec. 7-C of the U.P. (Temporary) Control of Rent and Eviction Act. The trial court dismissed the suit on the finding that the appellant was not a defaulter and had remitted the rent within time. The lower appellate court has decreed ejectment on the finding that the defendant had not tendered the rent to the plaintiff earlier than the remittance of the money order. He held that the defendant was a defaulter in payment of rent. Learned counsel for the appellant urged that the remittance of the money order dated December 25, 1961 was within time. He urged that December 24, 1961 and December 25, 1961 being holidays the remittance made on December 25, 1961 was within time. Exclusion of the date of service of the notice was claimed on the basis of Shiv Narain v. Chandrika Prasad A.I.R. 1973 Alld. 155. In that case it was held that the day on which a notice by a landlord is received by a tenant, has to be excluded in counting 30 days period under Section 106 of the Transfer of Property Act. It was contended that November 24, 1961 has accordingly to be excluded while counting a month's period. It seems to me that the payment could be made by December 24, 1961 since the notice of demand was served on November 24, 1961. December 24 and 25, 1961 being holidays the remittance of money could be made by December 26, 1961. in Bhikha Lal and others v. Munna Lal 974 A.L.J. 470 it was held that a remittance made by money order within the prescribed time was valid discharge of the demand under Section 3 of Act III of 1947. See also Ratan Lal v. Jagannath Prasad 1967 A.L.J. 1029. In Bhikha Lal and others v. Munna Lal (2) it was held that Section 3 had to be constituted in a manner so as to advance the intention of the legislature and not to penalise the tenant. If the tenant could remit the money by December 26, 1961 he could not be penalised for not sending the same till that date. The demand was made by a registered notice. The remittance could also likewise be made through money order. See Bhikha Lal and others v. Munna Lal (2).

(2.) LEARNED counsel for the respondent submitted that two courses were open to the tenant: