RAM PRATAP SUNAR Vs. THAKUR PRASAD

JUDGEMENT

(1.) THIS is a second appeal against the judgment and decree dated May 31, 1966, passed by III Additional Civil Judge, Allahabad allowing the plaintiff respondent's appeal and decreeing the plaintiff's suit for ejectment and also for recovery of Rs. 3|- after modifying the decree of the trial court.

(2.) THE suit giving rise to the second appeal was filed by the plain tiff-respondent against the defendant- appellant on the allegations that the appellant was the tenant of the house detailed in the plaint on monthly rent of Rs. 5|-. The tenancy commenced on 28th day of each English moth. The appellant did not pay rent for 28 months from August 28, 1962 to December 27, 1964 and thereafter the plaintiff- res pondents served a combined notice of demand and termination of tenancy (sic) 1965. This notice was served on the appellant on Janu ary 19, 1965. The defendant-respondent did not pay the arrears of rent within one month of the service of notice hence the suit for ejectment of the appellant and for recovery of Rs. 156.50 paisas from the appel lant as arrears of rent, pendenti lite and future damages were also claimed at Rs. 5|- per month. The appellant resisted the claim on the ground that he paid Rs. 33.89 paisas as house and water tax on March 7, 1964 and Rs. 30.60 paisas as house and water tax from February 3, 1965 and after deduct ing this amount of Rs. 64.49 from the arrears of rent he personally tendered Rs. 75.51 to the respondent within one month of the service of notice. The appellant refused to accept and the respondent remit ted that amount by money order. The appellant refused to accept that money order also. It was held that the plaintiff was not entitled to eject the defendant.

(3.) FEELING aggrieved the defendant has now come up in second ap peal before me. I have heard learned counsel for the parties. I have also gone through the record. After giving the matter my anxious consideration I have come to the conclusion that the order passed by the court below cannot be interfered with. It has been found by the court below as a fact that there was an agreement between the parties by which the defendant appellant agreed to pay house and water taxes on behalf of the plaintiff from the arrears of rent from time to time and this finding of fact has not been challenged before me. The only contention raised before me was that defendant appellant had paid Rs. 64.49 as house and water taxes to the Municipal Board or Munici pal Corporation. This amount included Rs. 3.00 on account of re-connection charges. The lower appellate court has taken the view that the contract between the parties was that the defendant was to pay house and water taxes only on behalf of the plaintiff-respondent from the arrears of rent. There was no contract for paying reconnection charges and if the defendant paid any amount of Rs. 3.00 on account of reconnection charges he was himself responsible for paying that amount and the plaintiff respondent cannot be debited with that am ount. This view appears to be correct. As already noted above and pleaded in the written statement the agreement between the parties simply was that the defendant will pay on behalf of the plaintiff arrears of house and water taxes. This amount the appellant was cer tainly entitled to deduct from arrears of rent. But the defendant ap pellant also paid Rs. 3.00 as reconnection charges. Reconnection charges are paid when the connection is cut on account of some fault of the person in occupation of the house. There was no allegation in the pleadings that reconnection charges was paid due to any fault of the plaintiff-respondent. As a matter of fact the defendant was in possession of the premises and if any disconnection took place it must have been made for some fault either of commission or omission of the defendant-appellant. In this view of the matter the defendant appel lant committed an error by withholding an amount of Rs. 3|- which could not be debited against the plaintiff-respondent.