UMESH CHANDRA MALVIYA Vs. RAM KRISHNA PURWAR

JUDGEMENT

(1.) THIS is a plaintiffs' appeal and arises out of a suit for ejectment and arrears of rent. The dispute relates to a por tion of house No. 479, Madan Mohan Malviya Nagar, Allahabad. One Sri Brij Kishore Malviya, father of plaintiff No. 1 and husband of plaintiff No. 2 was the owner of the house. The defendant- respondent is tenant of a portion of that house at a rent of Rs. 15.00 per month. Sri Brij Kishore Malviya died leaving behind the plaintiffs as his heirs. At the time of death of Sri Malviya plaintiff No. 1 was a minor. During his minority plaintiff No. 2 looked after the affairs of the family. After attaining majority plaintiff No. 1 filed suit No. 746 of 1963 against the defendant-respondent for his ejectment and reco very of rent for the period December 1, 1962 to August 31, 1963. Eject ment was sought on the ground that the defendant had failed to pay the rent falling due during this period and was accordingly a defaul ter under Section 3 of the U.P. Control of Rent and Eviction Act (hereinafter referred to as the Act).

(2.) THE defence delieverd in that case, was that the rent had been paid to plaintiff No. 2 who had been looking after the affairs of the family and the defendant accordingly was not a defaulter. It was further pleaded that plaintiff No. 1 alone was not entitled to terminate the defendant's tenancy and maintain the suit. That suit was dis missed, inter alia, on the findings that the plaintiff alone was not com petent to terminate the defendant's tenancy and further that the de fendant was not a defaulter. On appeal the decree was affirmed on the finding that the suit was not maintainable by plaintiff No. 1 alone but no rinding was re corded by the lower appellate court on the question of default.

(3.) THE suit giving rise to this appeal was filed on the allegations that the defendant was a defaulter within the meaning of Section 3 (1) (a) of the Act, having not paid the entire rent due from him. He was consequently liable to ejectment. A claim for his ejectment and recovery of Rs. 3429-26 paisa as arrears of rent and Bhumi Bhawan Kar and cost of notice was accordingly made. The plaintiffs also prayed for pendents lite and future mesne profits at the rate of Rs. 151-per month. The suit was contested on the pleas that the rent for the period February 1, 1962 to August 31, 1963 had already been paid, that a suit for recovery of rent for that period had already failed, that the in stant suit in respect of the arrear claimed for that period was barred by res judicata, that the decision in suit No. 746 of 1963 was binding on the plaintiffs that the plaintiffs having refused to accept the rent offered through the money order which was only amount due from the defendant could not treat the defendant as a defaulter, that the notice to quit was invalid and that the suit was not maintainable.